UNHRCFINAL

49

Transcript of UNHRCFINAL

Page 1: UNHRCFINAL

Contents Message from the Committee Directors

Introduction to the Human Rights Council Topic Area A

Chinarsquos Violation of Reproductive Rights

The Case of Internet Censorship in China and the Right to Free Speech

Political Prisoners in China and Illegal Detention

The Infringement of Rights in the Conflict with Tibet 20

Chinarsquos Violation of Ethnic Minority Rights

Recent Developments Topic Area B

Capital Punishment

Imposition of Death Penalty on Juveniles

Universality of Laws Incurring the Death Penalty

Extrajudicial Killings Conclusion

Message from the Committee Directors

Dear all

Congratulations on becoming a part of United Nations Human Rights

Council an inter-governmental body within the United Nations framework

designed to promote and protect human rights internationally We are ex-

tremely pleased to be chairing UNHRC at LUMUN lsquo12 Sophomores at

LUMS we are concentrating in Literature Philosophy and History and

Economics and Politics respectively So basically between us wersquore doing

almost everything

As students we have been deeply engaged with international relations

current affairs and academic debates a product of which is our interest in

the Human Rights Council The nature of discussion relevant to UNHRCrsquos

mandate is one that can be carried out anywhere Having said that though

please do be aware that human rights issues are often intricate questions

immersed in political convolutions The topics at UNHRC this year are ex-

amples of two controversial issues which have no simple solutions and

require creativity and resolve on the part of delegates to negotiate a solu-

tion Particular focus on the practicality and applicability of resolutions

will be required from you as delegates in light of international diplomatic

standards We hope that as individuals you engage in the sessions with a

unique perspective and take away from the committee a more sophisti-

cated view of these issues

We have thoroughly enjoyed our experiences with LUMUN In retrospect

these experiences have been eerily similar We both attended LUMUN rsquo08

as delegates and won the Outstanding Diplomacy award in our respective

committees We then joined LUMUN in our freshman year and were ap-

pointed Assistant Committee Directors for the United Nations Security

Council for LUMUN 2010 Both of us have chaired the Disarmament and

International Security Committee (DISEC) at separate intra-LUMS MUNs

And now here we are at LUMUN 2012 LUMUN has been an excellent op-

portunity for us to explore our interests and engage with people on a simi-

lar note As your Committee Directors we hope to provide you with the

same opportunities and strive to improve your experience as a delegate

Please note that given that we are a simulated council we have taken cer-

tain liberties For starters the Councilrsquos delegations will not be mirroring

current Council memberships Furthermore our first topic would not be

something discussed in formal international spheres We realize this but

in view of pushing you as delegates to think critically and expand your

knowledge of global affairs inspecting Chinese human rights violations is

appropriate The guide leans towards providing examples of these viola-

tions and not many rationalizations of them That we feel is the domain

of your personal research

To conclude we truly hope all of you enjoy your time at LUMUN 2012 In

order for this to happen delegates must be cognizant of the topics under

review We encourage you to scrupulously research your stances and have

more than just a basic impression of what the topics entail Delegates are

expected to be aware of all updates with regard to the subject matter and

to treat the study guide as an introduction to the topics and not as a stand

-alone document In the process of deciding the topics researching for and

compiling the guide we have become increasingly involved with these is-

sues We hope that you reciprocate our levels of interest and show the

same level of enthusiasm Delegates you are welcome to approach either

of us with any queries that you may have

All the Best

Khadija Mahsud amp Sarim Zia

Committee Directors UNHRC

UNHRC 1 of 44

Introduction to the Human Rights Council

World War II saw some of the worst atrocities of human history It was in the aftermath of the

inability of the League of Nations to prevent international unrest and human rights violations that

the United Nations Charter was promulgated and the UN was set up in 1945 The foundational

premise from which the UNlsquos committees and councils derive their agendas is the protection of

fundamental human rights It is in this vein that the Human Rights Council (and the Commission

it replaced) performs the most integral of functions of the UN Subsequent to the Charter

another landmark document was drawn up in 1948 namely the Universal Declaration of Human

Rights It was the first explicit global expression of the worldlsquos commitment to upholding the

sanctity of human rights It is from the permanent and unprecedented potency of the Declaration

that all subsequent human rights conventions and treaties have been derived both within and

outside of the UN Together with the International Covenant on Economic Social and Cultural

Rights and the International Covenant on Civil and Political Rights it forms the International

Bill of Human Rights

It was through the UN Charter that the Commission on Human Rights was established in 1946

with the purpose of promoting and protecting rights internationally Even though the

Commission successfully achieved the creation of the Universal Declaration of Human Rights it

was repeatedly censured for lacking constructive discussion on human rights issues It was

allegedly used a medium to blame countries and settle political scores It was also critiqued for

being composed of member nations with questionable human rights records such as China Cuba

Zimbabwe and Sudan This among other things led to the replacement of the Commission with

the Council The Council was formed in 2006 through a resolution of the General Assembly

(Resolution 60251)1 that passed with an overwhelming majority The UN Secretary General at

1 GA Resolution 60251 httpwww2ohchrorgenglishbodieshrcouncildocsARES60251_Enpdf

UNHRC 2 of 44

that time Kofi Annan referred to it as a historic resolution that gives the United Nations a

much needed chance to make a new beginning in its work for human rights around the world

The main aim of the Council is to report to the General Assembly and work with it to improve

the situation of global human rights As a specialized body it focuses solely on human rights and

managing the protection and advancement of the human rights of all individuals It aims to

promote universal respect for the protection of all human rights and fundamental freedoms as

demarcated in the International Bill of Rights and the UN Charter for all without distinction of

any kind and in a fair and equal manner Recommendations are made on all documented human

rights violations including gross and systematic violations

The Council can only make recommendations on violations of human rights to the GA which in

turn can suspend the voting rights of the accused Council member The Council also makes

recommendations to the GA for further development of international law in the field of human

rights

The Council comprises of 47 members elected on a geographic quota-based criterion for three-

year-long terms Members elected into the Council by the General Assembly must ―uphold the

highest standards in the promotion and protection of human rights fully cooperate with the

Council and be reviewed under the universal period review mechanism during their term 2

A year after its inception the Human Rights Council designed Resolution 51 in order to provide

mechanisms through which human rights situations could be monitored3 The Resolution

included the Universal Periodic Review (UPR) system4 Through this human rights situations in

individual UN member states are reviewed and subsequently discussed by the entire Council

sitting as a working group through an interactive dialogue with the concerned State The Review

system incentivizes states to independently reform and review domestic human rights situations

prior to international inspection which facilitates the fulfillment of the aim of the Council

Human rights situations are meant to be reviewed on a rotational basis for all 192 UN member

states

2 httpwww2ohchrorgenglishbodieshrcouncildocspledgespdf

3 Resolution 51 httpapohchrorgdocumentsEHRCresolutionsA_HRC_RES_5_1doc

4 Please see the following for information on the UPR of China

httpwwwohchrorgENHRBodiesUPRPagesCNSession4aspx

UNHRC 3 of 44

Conference underway at the UNHRC in Geneva

The Resolution also included the delineation of Special Procedureslsquo established by the former

Commission on Human Rights to comprise of five-member working groups or individual

experts (commonly referred to as Special Rapporteurs) to monitor human rights violations in

thematic or country-specific loci There are currently five Working Groups on people of African

descent on Arbitrary Detention on Enforced or Involuntary Disappearances on the Use of

Mercenaries to Impede the Right of Peoples to Self-Determination and on Situations

(Confidential 1503 Procedure)5

The mandates of the Special Procedures are established and defined by the resolution creating

them Some of the thematic mandates adopted by the Council include the issue of human rights

defenders torture and minorities Special Rapporteurs often conduct fact-finding missions

in countries to investigate allegations of human rights violations They can only visit

countries that have agreed to invite them

The Council is currently headed by Laura Dupuy Lasserre of Uruguay It concluded its

eighteenth session in September 2011 The diversity of the political and social issues

encompassed in the agenda resulted in discussion of issues as varied as the situation in Libya on

one end and water sanitation on the other Also discussed was the situation of human rights in

Syria and the pattern of widespread systematic human rights violations by Syrian security and

military forces was examined The illegal blockade imposed on Gaza was also under focus

Furthermore the Council adopted the outcomes resulting from debate over the Universal

Periodic Review of sixteen countries

5 httpwww2ohchrorgenglishbodieschrworkinggroupshtm

UNHRC 4 of 44

While the Council faces criticism along the lines of that made against the Commission it has

come a long way from being the ―shadow on the ―reputation of the UN system as whole 6

6 httpnewsbbccouk2hiamericas6919268stm

UNHRC 5 of 44

Topic Area A The Great Firewall of China Review of the Human Rights Situation

Introduction to the Topic Area

The Peoplelsquos Republic of China is the worldlsquos most populous country with an estimated

population of 137 billion It is also one of the largest countries in terms of its land territory

China has firmly established itself as a premier world economic powerhouse It is the worlds

second-largest economy after the United States by both nominal GDP ($593 trillion) and

purchasing power parity ($1012 trillion) A single-party state governed by the Communist Party

of China it is widely acknowledged to be the worlds fastest-growing major economy and the

worlds largest exporter and second-largest importer of goods China is also a permanent member

of the UNSC and is a prominent figure in international politics It is a recognized nuclear

weapons state and has the worlds largest standing army with the second-largest defense budget

China is on par with the United States as a superpower and is soon even expected to supersede

the latter as the worldlsquos major politico-economic power

However Chinalsquos record in relation to human rights violations stands out for all the wrong

reasons China has been ruled by the Communist Party since it gained power and established the

Peoplelsquos Republic of China in 1949 It is believed to be in breach of numerous human rights and

its transgressions are a subject of much concern for the entire international community Some

issues like the Tiananmen Square of 1989 or that of Mr Liu Xiaobolsquos imprisonment have seen

the light of day and escaped the iron clutches of Chinese control on media However thousands

of other cases are never brought out into the open and are unable to draw international attention

which is why this year at LUMUNlsquos United Nations Human Rights Council the debate will focus

on China and its human rights violations The human rights abuses in focus will be Chinalsquos

violation of reproductive rights the case of internet censorship in China and the right to free

speech political prisoners in China and illegal detention the infringement of rights in the

conflict with Tibet and ethnic minority rights

The committee will not only be expected to discuss all aspects of the issues distinctly and in

extensive detail The committee will also be expected to be familiar with the Universal

Declaration of Human Rights all pertinent treaties resolutions and conventions

UNHRC 6 of 44

Chinarsquos Violation of Reproductive Rights

While reproductive rights are not specifically mentioned in the Universal Declaration of Human

Rights they are widely understood to be an extension of the freedom of choice and right to life

They are to be granted equally to all humans without discrimination of race sex language or

religion under the United Nations Charter7 Reproductive rights embrace certain human rights

that are already recognized in national laws international human rights documents and other

relevant UN consensus documents The World Health Organization defines reproductive rights

in the following manner

ldquoReproductive rights rest on the recognition of the basic right of all couples and individuals to

decide freely and responsibly the number spacing and timing of their children and to have the

information and means to do so and the right to attain the highest standard of sexual and

reproductive health They also include the right of all to make decisions concerning reproduction

free of discrimination coercion and violence8rdquo

Only if individuals have the freedom to be in control of their sexual and reproductive lives can

uninhibited social development occur However the lack of any binding international covenant

on the subject is a grave state of affairs Soft laws in the form of non-binding measures are

often deemed too inadequate in mounting a challenge against the issue The United Nations

Human Rights Council has the capacity to make recommendations for the revision of the

aforementioned fact and will be something that the committee should focus on

Reproductive rights include in their spectrum the right to legal or safe abortion the right to

access quality reproductive healthcare the right to birth control and the right to education in

order to make well-informed reproductive choices without any coercion or violence9 Equality

and equity for men and women is of paramount importance while addressing such civil liberties

so that individuals are able to make free and informed choices in all spheres of life without any

discrimination of any kind An essential aspect of the debate is related to the right to privacy that

all individuals must be granted in the process of their decision-making

The provision of such personal human rights is notably absent in China With the stern

implementation of the one-childlsquo policy10

China has undertaken extreme measures at the cost

of innumerable human rights to curtail population growth Despite having previously ratified the

7 Article 1 of the UN Charter httpwwwunorgendocumentscharterchapter1shtml

8 Gender and reproductive rights home page httpwwwwhointreproductivehealthen

9Amnesty International USA

httpwwwamnestyusaorgStop_Violence_Against_Women_SVAWReproductive_Rightspagedoid=1108242ampn

1=3ampn2=39ampn3=1101 10

Article 18 of Population and Family Planning Law of Peoplelsquos Republic of China

httpwwwunescaporgesidpsispopulationdatabasepoplawslaw_chinachina20pop20and20family20plan

ningpdf

UNHRC 7 of 44

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in

198011

which prohibits coercion in family planning policies12

China continues to dictate the

reproductive lives of all its citizens While the Law on Population and Family Planning states

that one child is mostly merely encouraged abusive or coercive enforcement measures such as

forced abortions compulsory sterilizations and the forced insertion of intra-uterine devices after

abortions or births are common practices that are regularly documented13

Forced sterilizations are a troublingly common practice in other regions as well Perulsquos case is

important in this regard with its program of achieving a target number of sterilizations each

year sometimes numbering in the hundreds of thousands Indeed the government would

sometimes bribe women to undergo these procedures in exchange for food and medicine for

their existing children 14

A system of enhanced monitoring strategies is often regarded as one of

the solutions to the problem

Another pervasive measure employed by the state is the routine monitoring of the menstrual

cycle of women particularly those in the child-bearing age by family planning officials15

Their

employment is often contingent upon compliance with the policy The right to privacy is

severely breached in all such instances Furthermore unmarried women are not allowed to have

children and even married couples must apply for a birth permit before they can legally bear

children16

Analyzing the statelsquos penetrating involvement and interference in the private spheres

of individuals in light of existing treaties and conventions will be one of the committeelsquos tasks

Women and couples who defy the policy face fines amounting to several yearslsquo salary have their

access to social services cut and are even imprisoned in certain cases Their so-called black

childrenlsquo have no legal status in China meaning these children are not granted any rights

whatsoever and do not have access to education health or any other services provided by the

State There are an estimated 6 million undocumented children in China most of which are

believed to be girls17

The cases of Mao Hengfeng and Chen Guangchengserve as prime examples demonstrating the

inhumane nature of penalties handed out by the Chinese state to violators of the one-child

policy18

Mao a human rights activist was sentenced to two and a half years in prison after she

refused to have an abortion Chen was a blind self-taught lawyer and activist who was charged

and punished with more than four years in prison after exposing abuses in the implementation of

the one-child policy

11

httpunifem-eseasiaorgChina 12

httptreatiesunorgPagesViewDetailsaspxsrc=TREATYampmtdsg_no=IV-8ampchapter=4amplang=en 13

httpwwwrhrealitycheckorgnode7926 14

httpwwwwebsteredu~woolflmforcedsterilizationhtml 15

Page 2 httpwwwcensusgovpopulationinternationalfilesspSP73pdf 16

httpfactsanddetailscomchinaphpitemid=128ampcatid=4ampsubcatid=15 17

Ibid 18

httpwwwrhrealitycheckorgnode7926

UNHRC 8 of 44

The appalling state of affairs is further augmented by the actions the Chinese state takes to

impede the birth of conceived children It implements very strictly a program of compulsory

sterilization and forced abortions to minimize the birth of a second child in a family While

abortion itself may be a debatable and controversial topic the subset of such a controversy in the

form of a state-regulated forced abortion is excruciatingly black and white The undeniable

cruelty of forced abortions is not a deterrent strong enough for the Chinese government and the

phenomenon exists widely in China In fact the policy leads to an estimated 13 million abortions

every year with many of those ordered by local authorities Infanticide is a common practice

especially in the rural areas of the country19

Women are abducted by the state and at the cost of

their lives are forced to undergo forced and mostly unsafe abortions

In October of 2010 China forced an eight-month pregnant woman into an abortion for breaching

the one-child policy20

Government officials entered Xiao Aiyinglsquos residence hit and kicked her

in the stomach and subsequently dragged her to the hospital where doctors injected her with a

lethal drug to kill her unborn baby Xiaolsquos husband later described the incident They held her

hands behind her back and pushed her head against the wall and kicked her in the stomachlsquo The

animalistic discourse adopted by the government officials is a testimony to Chinalsquos open rebuke

for human rights More recently Womenlsquos Rights without Frontierslsquo and China Aidlsquo reported

the death of a six-month pregnant woman during a forced abortion on October 12th

201121

Jihong Ma was seized by Family Planning Officials for a forced abortion having violated the

one-child policy

While the positive environmental impact of the prevention of 300 to 400 million births may be

cited22

it must be noted the one-child policy privileges only the wealthy who can afford the

fines for additional births and have better access to contraceptives and health care while

punishing the poor who are financially crippled by the fines incurred for additional births

Moreover this policy punishes the children of the poor because they are more likely to be kept

hidden from the state and thus will not have access to health care and the education they need to

climb out of poverty In this way social disparity is further perpetuated within the existing

framework

Another adverse byproduct of Chinas 30-year-old family planning policy is the gender

imbalance that is now manifested most clearly among those of marrying age The British

Medical Journal claimed that in 2005 there were 32 million more males than females (under the

age of 20) in China23

Even though China banned prenatal sex screening in 199424

illegal

ultrasound tests allow prospective parents to choose the gender they prefer for their only child

19

httpwwwdailymailcouknewsarticle-1322601China-forces-woman-abortion-EIGHT-months-breaching-

child-policyhtml 20

Ibid 21

httpwwwwomensrightswithoutfrontiersorgblogp=429 22

―Has Chinas one-child policy worked httpnewsbbccouk2hiasia-pacific7000931stm 23

British Medical Journal BMJ 2009 338b1211 httpwwwbmjcomcontent338bmjb1211full 24

―A Brief History of Chinas One-Child Policy httpwwwtimecomtimeworldarticle08599191286100html

UNHRC 9 of 44

creating a massive imbalance This imbalance will lead to drastic results in the next few years an

implication the committee needs to take in account when establishing a framework for

responding to the issue

The Human Rights Council conducted a Universal Periodic Review of China in 200925

to much

international consternation and surprise the report lacked substantial evidence implicating

China and was instead found to be extremely vague The role of the United Nations in defining

and drawing attention to the issue is of key significance and the Human Rights Council must

make recommendations on how the United Nations can enhance its capacity in laying the

foundations for the case The Council can also make recommendations regarding the changes

that can be brought about in the conduct of the Review and otherwise in order to be able to

contain the issue with lesser difficulty

The committee will be called upon to review reproductive rights in detail including the implicit

and explicit consequences on the people of China Access to reproductive healthcare is a

problem the world over and is often consciously violated by states Is there a way to control

these violations perhaps through devising enhanced monitoring strategies

The Case of Internet Censorship in China and the Right to Free Speech

Everyone has the right to freedom of opinion and expression this right includes freedom to hold

opinions without interference and to seek receive and impart information and ideas through any

media and regardless of frontiers26

- Article 19 Universal Declaration of Human Rights

Everyone shall have the right to freedom of expression this right shall include freedom to seek

receive and impart information and ideas of all kinds regardless of frontiers either orally in

writing or in print in the form of art or through any other media of his choice 27

- Article 19 (2) International Covenant on Civil and

Political Rights

The Peoplelsquos Republic of China along with being the most populous region of the world is also

home to the worldlsquos largest collection of internet users According to Xinhua Chinalsquos state-run

English news agency Chinalsquos internet user ship exceeded 500 million users as of September

201128

China is also the worldlsquos largest media market However despite these impressive

statistics it is both interesting and disturbing to note that the Republic is also remarkable for its

25

httplibohchrorgHRBodiesUPRDocumentsSession4CNA_HRC_WG6_4_CHN_3_Epdf 26

httpwwwohchrorgENUDHRDocumentsUDHR_Translationsengpdf The Universal Declaration of Human

Rights 27

httpwww2ohchrorgenglishlawpdfccprpdf The International Covenant on Civil and Political Rights 28

httpnewsxinhuanetcomenglish2010china2011-0929c_131167919htm

UNHRC 10 of 44

censorship history About a dozen government bodies control internet usage including the

Ministry of Public Security29

It has been noted that while the Chinese advertising industry is

booming this freedom does not extend to editorial content of newspapers30

This phenomenon of

Chinese censorship has been labeled in the mainstream global media as the Great Firewall of

China The Firewall serves to filter both the information coming into China as well as

information generated within the nation It is beyond being a clever pun a matter of concern for

the committee because of its repressive characteristic The State imposes such extreme

restrictions of freedom of information under the premise of protection of its nationalistic

interests However its negative connotation is much obvious and its resemblance to Orwelllsquos

Ministry of Truth and the notion of thought control is uncanny The Peoplelsquos Republic has signed

(not ratified) the International Covenant on Civil and Political Rights The committee can look

into the reasons behind this as well as assess current global membership to the covenant

Chinalsquos Internet censorship is centered on the control of political thought The Measures on the

Administration of Internet Information Services and the Provisions on the Administration of

Internet News and Information Services are the two main instruments used to do so31

Section 19

of the latter deserves special attention and casts its scope to prohibit activities that disrupt

―national policies on religion propagating evil cults and feudal superstitions jeopardize ―the

security of the nation harm ―integrity of the nationlsquos unity or ―the honor or the interests of the

nation among other things32

Regulations are so stringent that in 2008 only eight websites out

of a total of 430000 in Guangdong Province ndash Chinalsquos most populous region -- were able to

obtain news publication qualifications permits33

The Internet news and information services entities engaging in Internet news and information

services shall abide by the Constitution laws and regulations by persisting in providing service

for the people and serving socialism and guiding public opinion to protect the interests of the

nation and the public

- Article 3 Provisions on the Administration of Internet News and Information Services

The national report submitted by China to the Working Group for the Universal Periodic Review

in 2009 exhibited the governmentlsquos opinion that ―with such easy fast and diverse ways of

gaining access to information and expressing opinion including criticism of the Government

Chinese citizens are enjoying an entirely new lifestyle34

According to a white paper published

29

httpwwwhrworgreports2006china08063htm_ftnref28 30

httpnewsbbccouk2hiafricacountry_profiles1287798stm 31

httpwwwhrichinaorgcrfarticle3244 32

httpwwwchinaitlaworgp1=printampp2=051006175116 Provisions on the Administration of Internet News and

Information Services

Please peruse the following httpwwwhrworgreports2006china08063htm for commentary on the Provisions 33

Ibid 34

httplibohchrorgHRBodiesUPRDocumentsSession4CNA_HRC_WG6_4_CHN_1_Epdf

UNHRC 11 of 44

in 2008 by the Information Office of the State Council the internet is a ―crystallization of human

wisdom and ―Chinese citizens fully enjoy freedom of speech on the internet 35

Chinalsquos policies have relevance beyond

their contravention of what may seem to be

abstract principles China has jailed the

largest number of internet dissidents the

world over The case of Liu Shaokun for

example is a notable one He was a

teacher in Sichuan province which had

been hit in 2008 by a ravaging earthquake

around the time of the Summer Olympics

in Beijing China had been praised for

allowing reporters to openly cover the

earthquake Much of this openness however was part of a bid to soothe the international

community and project Beijinglsquos image as being the perfect venue for the Olympics Shaokun

however was sentenced to a year of labor for posting photographs of schools affected by the

earthquake He is among countless others who have been silenced36

When the Arab Spring flowered over the Middle East China cracked down on many social

networking sites to curb pro-democracy sentiments Amongst these was LinkedIn blocked over

the fact that one of its users had mentioned the possibility of a ―Jasmine Revolution in China37

The government blocks discussions about the Dalai Lama the Tiananmen Square protests and

the Falun Gong spiritual movement among other things In April of 2007 the Chinese version of

MySpace launched but lacked discussion forums centered on the aforementioned topics among

others including Taiwanlsquos independence In 2010 Google considered withdrawing its services

from China after a spur of cyber-attacks on email accounts of human rights activists 38

Google

and the government reached a deal whereby Google operated by Chinese guidelines within

mainland China However Google has a non-censored operation running in Hong Kong to

which it started routing customers in 2010 when it had concerns over Google accounts being

hacked by authorities It is testament to Chinese control that companies such as Google are

forced to enter the internet market on its terms Other instances of well renowned internet

websites being blocked or affronted include Twitter being banned during the 20th

anniversary of

the Tiananmen killings

The Committee to Protect Journalists ranks China as one of the worst internet censors The

Chinese government has been alleged of carrying out ―spear-phishing whereby spying software

disguised as legitimate emails is installed on computers that belong invariably to journalists

35

httpchinaorgcngovernmentwhitepapernode_7093508htm 36

httpcpjorgreports201012cpj-journalist-prison-census-iran-china-highest-14-yearsphp 37

httpwwwbbccouknewstechnology-12586462 38

httpnewsbbccouk2hi8460129stm Please look at this link for a timeline of Chinalsquos internet history

UNHRC 12 of 44

Victims included those writing about Liu Xiaobo the imprisoned human rights defender who

received the Nobel Peace Prize in 201039

According to statistics over 80 of Chinas netizens rely mainly on the Internet for news 40

With this state of affairs and increasing dependence the world over on the internet as a major

source of information discussing information monopolies is crucial To isolate a country of over

a billion and deny it access to information in the age of technology may not seem a palpable

physical or otherwise contravention of human rights however its consequences are

tremendous While one may think that media censorship is restricted to dictatorial regimes the

case of China serves to refute that line of thought Media censorship is prevalent even in

countries as varied as Indonesia India Mexico and Russia ndash all of whom rank relatively low on

the Press Freedom Index41

Looking at instances worldwide and the justifications given for

restricting rights will be a useful direction to take while researching

The following website is a useful tool to check the status of websites in China

httpwwwgreatfirewallofchinaorg

Political Prisoners in China and Illegal Detention

Political prisoners are those whose imprisonment is carried out arbitrarily on contestable and

controversial grounds Governments detain certain individuals on the basis of allegedly valid

grounds which are not always disclosed or declared Many detainees charge existence of ulterior

motives or extrajudicial reasons on part of the state for their detention The phenomenon of

political prisoners is often associated with closed regimes such as Burma and the DPRK

However the Peoplelsquos Republic of China too does not escape scrutiny when the topic of political

prisoners is at hand The phenomenon of political prisoners resonates so loudly in the

international spheres particularly because governments deny the existence of political prisoners

they claim that all detainees are lawfully held under criminal law The unfair detainment of

persons or the capture of people to serve the interests of a government contravenes many human

rights including freedom of expression association and assembly Indeed a countrylsquos political

imprisonment record is one of the crucial indicators of its human rights situation

Amnesty International views political prisoners as prisoners of conscience These are more

specifically ―people who have been jailed because of their political religious or other

conscientiously-held beliefs ethnic origin sex color language national or social origin

economic status birth sexual orientation or other status42

39

httpwwwcpjorgreports201105the-10-tools-of-online-oppressorsphp 40

httpchinaorgcngovernmentwhitepapernode_7093508htm 41

httpenrsforgpress-freedom-index-20101034html 42

httpwwwamnestyusaorgour-workissuesprisoners-and-people-at-riskprisoners-of-conscience

UNHRC 13 of 44

According to the (US) Congressional Executive Commission on China over 5000 cases of

politically or religiously motivated imprisonments have been made It has detailed documented

information on the status of 1452 of these prisoners and

notes that its information is far from complete and that the

true story of Chinalsquos political prisoners remains unknown 43

The plight of political prisoners in China is speculated upon

by various international organizations Among these is the

Human Rights Watch which has gone as far as labeling the

locations for holding political prisoners ―black jails and

―alleyways in hell Officially though the Chinese

government denies the existence of political prisoners Subsequent to Chinalsquos Universal Periodic

Review an outcome report was published which came under fire from various sides The Human

Rights Watch called the substance of the report to be ―manifestly so far removed from reality

that [it] would immediately discredit anybody that adopted them in a report 44

In the report of

the UNHRC Working Group subsequent to Chinalsquos UPR it is stated that the Chinese

government does not use ―state secrets to suppress human rights defenders 45

It is precisely this

situation that our simulation wishes to remedy discussion should be fact based

The ground realities are different In 2010 Chinese activist and human rights defender Mr Liu

Xiaobo was awarded the Nobel Peace Prize He was jailed by Chinese authorities for

distributing his ―Charter 08 a document that called for freedom of expression and of assembly

among other things The government incarcerated him for an 11 year time-period on the charge

of subversion Subsequent to the prize the Chinese government came down hard on other human

rights activists Indeed those celebrating the awarding of the prize to Mr Xiaobo were arrested

arbitrarily While distributing fliers celebrating the win many were imprisoned on the grounds of

―inciting subversion of state power The Report of the Special Rapporteur on the situation of

human rights defenders published in 2011 makes mention of these facts46

The Chinese

government labeled the award an ―obscenity It is vague allegations such as these that allow

governments to thwart dissidents As expected though according to the report of the HRC

Working Group No individual or press has been penalized for voicing their opinions or

views47

When discussing China and political prisoners it is important to mention the Falun Gong

movement It is a spiritual variant of Buddhism and originated in China on the basis of the

teachings of its founder Li Hongzhi The movement was supported within the Chinese

43

httpwwwceccgovpagesvictims20101010_PPD_AR10pdfPHPSESSID=705596c0e91f35e392e6f0ecbb78d6

7c 44

httpwwwhrworgennews20090610human-rights-watch-statement-upr-outcome-report-china 45

httpdaccess-dds-nyunorgdocUNDOCGENG0916299PDFG0916299pdfOpenElement 46

httpwww2ohchrorgenglishissuesdefendersdocsAHRC1644Add1_EFSonlypdf Page 63 47

httpdaccess-dds-nyunorgdocUNDOCGENG0916299PDFG0916299pdfOpenElement Para 71

UNHRC 14 of 44

officialdom initially However Falun Gonglsquos popularity within the masses as well as its

independence from the state and its spiritual teachings was soon perceived as a threat to the

government By the late 1990lsquos the Chinese government cracked down on the movement and

labeled it as a heretical organization Chinese legislation uses the expression ―Xiejiao zuzhi to

refer to a wide range of sectarian or unorthodox religious groups which do not meet official

approval The Falun Gong movement is included in this list48

The Falun Gong followers are the

worldlsquos largest group of prisoners of conscience The PRC often picks up practitioners and

accuses them of ―using an evil cult to destroy implementation of the law 49

China with its strict non-religious government did not take kindly to this new movement that

had garnered millions of followers both within China and internationally between 1992 and the

crackdown in 1999 Today Falun Gong is practiced freely in more than 70 countries around the

world with clubs and associations existing in a range of settings50

Beginning at the turn of the

millennium the authorities started to ban access to websites that contained material about the

movement Indeed a search on the movement on Chinalsquos Xinhua News Agency website will

even today yield nothing (It may be an interesting experiment for delegates to conduct) Those

who reported the initial crackdown were ―followed detained interrogated and threatened

according to a letter written in 1999 by The Foreign Correspondents Club (FCC) of China51

The Falun Gong movementlsquos official website deals with its persecution thus The complex

rationale behind the persecution can be broken into four elements a paranoid dictators fear of

Falun Gongs meteoric growth and soaring popularity that same dictators intense jealousy of

Falun Dafas popularity the inherent conflict between the communist regimes savage political

ideology and its polar oppositemdashFalun Dafas principles of Truthfulness Benevolence

Forbearance and the very nature of communism which to sustain itself requires periodically

labeling a small segment of the population as the class enemy to struggle against52

The Chinese crackdown on Falun Gong practitioners involved a ban on practicing it by the

Chinese Communist Party whose members as aforementioned were interestingly initially

adherents to the movement in significant numbers Indeed the party was divided from within

over their stance on the movement The government formulated an ―anti-cult law a few months

after issuing a warrant for the founderlsquos arrest ―During the first two years of the crackdown

between 150 and 450 group leaders and other members were tried for various crimes and

sentenced to prison terms of up to 18-20 years53

To this day ―central leaders turn a blind eye to

48

httpwwwamnestyorgenlibraryassetASA170112000en7a361a8e-df70-11dd-acaa-

7d9091d4638fasa170112000enhtml 49

httpwww2ohchrorgenglishissuesdefendersdocsAHRC1644Add1_EFSonlypdf 50

httpwwwfaluninfonettopic22 51

httpwwwamnestyorgenlibraryassetASA170112000en7a361a8e-df70-11dd-acaa-

7d9091d4638fasa170112000enhtml 52

httpwwwfalundafaorgengfaqshtmlpersecution 53

httpfpcstategovdocumentsorganization67820pdf Page 4

UNHRC 15 of 44

local methods of suppression against unrepentant practitioners including the reported use of

torture54

Also worth noting is the fact that Chinalsquos judicial system has been alleged to be anything but

conducive to providing justice to those using the system Indeed it is a repressive tool used by

the government to silence dissent China with its vast land mass and various provinces and

municipalities must work hard to keep its Centre strong Scores of individuals who are more

obscure than human rights activists and such are imprisoned by the government while ironically

seeking justice It has long been the custom for people of the countryside to seek justice in

Beijing if they felt that their local authorities had treated them unfairly However modern China

has not taken kindly to this tradition Local authorities are evaluated on the basis of the number

of complaints the Centre receives about them Thus they have a vested interest in thwarting the

reports of any complaints about them to Beijing Those who complain are whisked off to black

jails where ―detainees are denied access to legal counsel and in most cases contact with family

and friends They ―are kept under constant surveillance and subject to often arbitrary physical

and psychological abuse55

Chinalsquos record with regard to political prisoners and its tradition of suppressing dissent are

exacerbated by the sheer scale on which dissent is thwarted The aspect of potential torture of

prisoners further complicates the issue It is troubling that the issue of Chinese political prisoners

only gained international prominence with the case of Mr Liu Xiaobo It is not the only nation in

the world to adopt such strict policies in order to further its own ideology and the committee will

do well to ruminate upon how this tradition can be discontinued so as to allow people their

essential political freedoms

The Infringement of Rights in the Conflict with Tibet

Despite the furor that has been inconsistently directed towards its human rights record China

continues to impose tightening restrictions on rights of expression association and assembly

The Chinese government carries on devising social and economic changes that retain its firm

authority over its citizens which in turn enables a host of human rights violations In the context

of Tibet China has failed to address the grievances of the people there who have been made

victims of social discrimination and have unequal access to opportunities Scores of Tibetans are

marginalized and detained for their religious inclinations which are further suppressed by the

imposition of intense patriotic educationlsquo campaigns whereby socialism is furthered and all sorts

of religious or individualistic tendencies are thwarted

54

Ibid Page 5 55

httpwwwhrworgreports20091112alleyway-hell-0 Page 4

UNHRC 16 of 44

Despite its totalitarian approach China refuses to accept responsibility for the issue Instead it

blames westernlsquo forces for trying to instigate separatism56

The indifference on the part of

China with particular regard to Tibet is apparent with Chinese authoritieslsquo continuous rejection

of ―inconvenient requests by UN human rights experts for visits to the Tibet Autonomous

Region57

During 1912 and 1951 Tibet underwent a period of de facto independence58

While it was still

territorially a part of China it enjoyed relative freedom in its political discourse Tibetan

autonomy was confined within the context of Chinese suzerainty and should not be interpreted

as unrestrained political independence Since 1951 however the Chinese government has taken

steps to ensure its absolute and undeniable dominance over Tibet from which emanates the strife

under discussion Gross violations of human rights have taken place in China administered by

officials with the purpose of cultivating consent with regard to its control over the region

Suppression has led to the inevitable extensive discontent in Tibet a fury which was unleashed

in 2008 The Tibetan unrest of 2008 was a series of protests and demonstrations - not merely in

the Tibet Autonomous Region but elsewhere as well - that later transformed into rioting burning

looting and even killing59

The rioters set fire to state vehicles and clashed violently with the

police installed in the region The crackdown of Chinese authorities in response to the riots was

severe resulting in deaths on both sides and mass imprisonment by state authorities The degree

to which human rights were violated and abused during this crackdown cannot be overstated

The Chinese also revoked the freedom of sharing of information and imposed a ban on the entry

of media officials in the region to contain

information about the unrest and play down

protests60

A Tibetan Government in Exile has existed in India

since 1959 established by the 14th

Dalai Lama61

This Central Tibetan Administration considers the

issue as an illegitimate military occupation by the

Chinese state The Administration works with the

agendas of restoration of freedom in Tibet and rehabilitation of Tibetan refugees

Historical facts refute such a fallacy however The simple reality that the installation of the 14th Dalai Lama

needed the approval of the national government is sufficient proof that Tibet did not possess any independent power

during that period ndash (httpwwwchinaorgcne-whitetibet9-2htm)

56

httpwwwunhcrorgrefworldcountryAMNESTYCHN49b8dfc11a0html 57

Ibid 58

Grunfeld A Tom Reassessing Tibet Policy 2000 59

httpwwwnytimescom20080316worldasia16iht-tibet111134870html 60

Watts Jonathan Branigan Tania (March 18 2008) Tension rises as armed police mass in capital The

Guardian (London) Retrieved November 1 2011 61

httpwwwtibetnetenindexphpid=14

UNHRC 17 of 44

The censured freedom of expression is one of the multiple infringements on rights that are

imposed by China on Tibet Tibetans are denied the basic right to articulate their views through

political discourse Human rights activists advocate the freedom of speech for Tibetans under the

existing and future political arrangements Religious and political figures in Tibet are placed

under house arrest limiting their freedom of movement (in contradiction to article 13 of the

Universal Declaration of Human Rights)62

As was highlighted during the unrest in 2008 China

has often stripped the Tibetan population of its fundamental rights to associate and assemble In

2000 nine Tibetan prisoners in Kandze were charged for participating in a peaceful protest to

five-year prison terms in October 1999 (which were later increased to ten-year terms)63

This example leads us to another crop of abuse conducted overtly by Chinese authorities

arbitrary detention Article 9 of the Universal Declaration of Human Rights reads ―No one shall

be subjected to arbitrary arrest detention or exile64

Chinese law however permits authorities

to detain persons without formally arresting or charging them and persons may be sentenced

administratively to up to 3 years in reeducation-through-labor camps and other similar facilities

without a trial

Chinese authorities have been unresponsive to concerns expressed by the United Nations

Working Group on Arbitrary Detention No counter-explanation was given either over the case

of three Tibetans who had their sentences extended for staging a peaceful political protest during

the Working Groups visit to Drapchi in October 1997 despite international pressure65

Infinite

examples of arbitrary arrests and detentions exist in China international authorities have called

on China to cease this practice and release such detainees immediately absent evidence that they

have engaged in criminal acts No state can or should be able to hold anyone for engaging in

peaceful political activity All humans

should be granted internationally recognized

due-process protections which includes the

right to be informed of the charges leveled

against them66

The question of whether

these detainees are given an impartial trial if

one at all is not even raised

In addition to the arrests carried out in

violation of international law there are

grave evidences of abuses during detention

62

httpwwwhrworgnews20000612human-rights-violations-tibet 63

Ibid 64

httpwwwunorgendocumentsudhr 65

httpwwwhrworgnews20000612human-rights-violations-tibet 66

httpwwwhrworgnews20000612human-rights-violations-tibet

UNHRC 18 of 44

Incidences of beatings at time of arrest and torture (including the administration of electric

shocks and deprivation of food and medical treatment)67

during custody are widely reported

These are not isolated cases rather the product of a holistic policy of dealing with political

dissidents In one notable incident in May 1998 political prisoners in Drapchi staged major

protests to coincide with a visit from a European Union delegation The protests were non-

violent but the authorities reaction was severe several protestors were shot at and one monk

Lobsang Gelek subsequently died68

The Convention Against Torture (CAT ratified by China in 1988) requires the state to prevent

torture and punish those in violation of the law China has not amended its own laws to comply

with even the first article of CAT69

Such practices explicitly stand in contempt of Article 5 of

the Universal Declaration of Rights which censures the use of torture or cruel treatment as

punishment Dr Manfred Nowak the UN Special Rapporteur on Torture stated that ―he was

struck by the strictness of prison discipline and a palpable level of fear and self-censorship when

talking to detainees following his brief assessment of Chinese and Tibetan prisons in 200570

The committee will be looked upon to review ways in which the situation can be monitored more

carefully and what responses if any can be cultivated to impede similar future actions by

China

The continued violations of religious freedom and implementation of policies designed to

diminish religious practices by the State to serve its political needs is a cause of concern Again

referring to the Universal Declaration of Human Rights Article 18 reads ―Everyone has the right

to freedom ofhellipreligion this right includes freedomhellipto manifest his religion or belief in

teaching practice worship and observance71

The policies implemented by Chinese authorities

through use of coercion violent repression and imprisonment impinge upon the freedom of

Tibetans to practice their religion freely China has also strictly enforced re-education programs

for dissident factors within the state The program is aimed at ―combating separatism protecting

stability and promoting development and is intended to reform the political ideology of people

who refuse to accept state control of what they perceive as vital aspects of their religious lives

and beliefs The committee will be expected to deliberate upon the protection of religious

freedom and practices of individuals as well as the validity of these re-education programs in

light of human rights and liberties

Tibet is not the only region where political tensions surrounding autonomy run high The

Kosovo-Serbian conflict is pertinent to recall The Republic of Kosovo declared itself to be an

independent entity on February 17 2008 As of 11 October 2011 85 UN states recognize the

independence of Kosovo However Serbia maintains that Kosovo is a UN governed entity under

67

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 68

httpwwwfreetibetorgabouttorture 69

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 70

Ibid 71

httpwwwunorgendocumentsudhr

UNHRC 19 of 44

its sovereignty Russia and China are among those who do not recognize the Republic while the

USA UK and France have recognized Kosovolsquos declaration of independence This highlights the

rift between the United Nations Security Council over the issue The case of Tibet is all the more

important in light of the fact that many such pockets exist in the world struggling for self-

determination

Media Links

httpwwwfreetibetorgnewsmedia2008-protests-summary

httpwwwguardiancoukworldgallery2008mar19tibetchinapicture=333178281ampindex=7

Chinarsquos Violation of Ethnic Minority Rights

One of the greatest blemishes on Chinalsquos human rights record is in the area of ethnic minorities

and the extent to which China protects ethnic minority rights On paper Chinalsquos policies are

based on ethnic equality and regional ethnic autonomy Ethnic minorities are supposed to be

benefitting from preferential policies in the political economic cultural and educational spheres

However the ground realities are infinitely different Questions have been raised over the extent

to which the government fairly provides services to these minorities and allocates resources

equally to them The Chinese government is seen to largely prefer its Han majority The

minorities claim they are exploited for their resources and in turn not even provided with the

same level of social services as the Han people China is an atheistic government and the fact

that many ethnicities garner their identity in major part from their religious affiliation leads to a

precarious situation The Mongols Tibetans and Uighurs all come to mind when discussing the

issue of China and ethnic minority rights

―Everyone is entitled to all the rights and freedoms set forth in this Declaration without

distinction of any kind such as race colour sex language religion political or other opinion

national or social origin property birth or other status Furthermore no distinction shall be

made on the basis of the political jurisdictional or international status of the country or

territory to which a person belongs whether it be independent trust non-self-governing or

under any other limitation of sovereignty

- Article 2 Universal Declaration of Human Rights

The International Convention on the Elimination of Racial Discrimination defines racial

discrimination as any distinction exclusion restriction or preference based on race colour

descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the

recognition enjoyment or exercise on an equal footing of human rights and fundamental

UNHRC 20 of 44

freedoms in the political economic social cultural or any other field of public life72

It is due to

this that the international community has adopted the norm of subsuming ethnicity under the

terminology of race

―The Peoples Republic of China is a united multi-ethnic country So far 56 ethnic groups have

been identified and recognized by the central government The population of various ethnic

groups differs greatly While the Han ethnic group has the largest population and that of the

other 55 ethnic groups is relatively small so they are customarily referred to as ethnic

minoritieslsquo According to the fifth national census conducted in 2000 the population of all the

55 ethnic minority groups totaled 10449 million accounting for 841 percent of the total

population of China73

Chinas official 55 minorities are located primarily in the south west

and north of China Only Tibet and Xinjiang have a majority population of official minorities

while all other provinces municipalities and regions of China have a Han majority

One of Chinalsquos autonomous regions is the Xinjiang Uighur Autonomous Region (XUAR)

located in western China The area is vast accounting for one sixth of Chinalsquos land and houses

around 13 major ethnicities including the Uighurs who are a predominantly Muslim people with

origins in Central Asia The Uighurs have had strained ties with the state and have often resisted

Chinese authority74

In turn the Chinese government has reacted sometimes violently against

restless factions in the region One of the most passive aggressive forms of response on the part

of the Peoplelsquos Republic has been the encouragement of the migration of the Han people ndash

Chinalsquos ethnic majority ndash to the XUAR75

Around 90 of Xinjiangs population comprised of

Uighurs in 1949 now it is estimated that Uighurs make up only about 45 of the population76

The policies in Xinjiang are said to be designed to ―promote economic development not

demographic change In reality though the influx of migrants has amplified Uighur discontent

as Han and Uighurs compete over limited jobs and natural resources77

The United Stateslsquo

Congressional-Executive Commission on China reported that in 2006 the XPCC (Xinjiang

Production and Construction Core) reserved approximately 800 of 840 civil servant job openings

for Han Chinese78

One of the causes of the Han monopoly in the employment sector is the

linguistic advantage afforded to them and perpetuated by the education system As part of its

efforts to implicitly impose a unified culture the language policy was altered by the state with

an increased focus on use of Mandarin in schools at the expense of the local languages

Methods of education special to the ethnic peoples of the XUAR including the Muslim Uighurs

are suppressed For example a campaign by the PRC in 2001 targeted religious teachers and

72

httpwww2ohchrorgenglishlawcerdhtm 73

httpenglishgovcnofficial2005-0728content_18127htm 74

httpwwwcfrorgchinaeast-turkestan-islamic-movement-etimp9179 75

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p8 76

httpnewsbbccouk2hiasia-pacific3330803stm 77

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p4 78

httpwwwcolumbiaeducunewsclips20080801UighursTWPOSTpdf

UNHRC 21 of 44

endeavored to sever ties between mosques and groups involved in allegedly ―separatist

activities Around 8000 imams were required to undergo ―political reeducation in this regard

and become ―patriotic religious personalities Ethnic minorities are educated in ways that do not

allow them to learn their own languages or practice their own religion In 2001 for example a

Muslim girl was expelled from school for praying 79

Moreover in an attempt to further its socialist agenda and bind ethnic minorities together

minority cultural activities are often hindered In its place nationalistic values are given a

premium and integrated into society so as to tie the entire country in a unified Chinese foldlsquo

Resultantly an asymmetry with regards to the provision of services and protection of cultural

identity can be found in almost every ethnic minority region in the country The repression

against minorities has wider implications on the human rights situation for all This leads to

creation of a vindictive attitude among the minorities not only against the government but also

the Han majority

In July 2009 this attitude manifested itself in

the form of severe riots between the Han and

Uighur communities in Xinjianglsquos capital city

Urumqi Ethnic tensions elevated to the point

that police involvement was made necessary

According to Chinese state media at least 150

people were killed and more than 800 were

injured The riots were reportedly sparked by a

Uighur protest over the ethnically motivated

killing of two Uighur workers in the southern

province of Guangdong

On the topic of allegations of separatism it is interesting to note that post 911 it has been noted

that the Chinese government has used concerns about terrorism as a method for suppressing

ethnic activity This is possible through the characterization of certain ethnicities as having

fundamental leanings The Muslim Uighurs fell under fire for this very reason after the

September 2001 attacks

One of the ways that the Chinese government with its Han leanings has asserted its presence in

the region is through the smokescreen of the XPCC The Peoplelsquos Liberation Army and the

XPCC are present in the region per the government to ―consolidate border defense accelerate

79

wwwminorityrightsorgdownloadphpid=29 Page 30

UNHRC 22 of 44

Xinjianglsquos development and reduce the economic burden on local governments and the local

people of all ethnic groups80

The heavy militarization of ethnic minority

regions also enables the Chinese government

to quickly respond to skirmishes between the

minorities and the Han For example clashes

between the Uighurs and the Han in the

XUAR are quickly clamped down upon The

response by Chinese authorities always

focuses on the minority groups in the region

The typical response includes a period of

strike hardlsquo security measures during which the minorities are subjected to police patrols of

crowded areas identity checks street searches increased criminal investigations and accelerated

trials The measures also include mandatory political indoctrination classes for the Uighur

population Swift Chinese response to ethnic dissidence precludes the possibility of trying

protestersrioters under due process This phenomenon also contributes to the controversy of

China and its policy of arbitrary imprisonment

Essential to any countrylsquos social progress is the protection and provision of the basic rights to all

its citizens For a country like China which has a significant standing in the international

community the degree to which human rights are upheld comes under added scrutiny Minorities

need to be guaranteed provision of not only fundamental rights but additional ones that grant

them equal opportunities

Recent Developments

3 November 2010 UN Secretary General pushes China on human rights

Ban Ki-moon the United Nations secretary general has called on China to respect human rights

after critics accused him of dodging the issue on a trip to Beijing The UN secretary general met

Hu Jintao the Chinese president but failed to challenge Mr Hu on the imprisonment of Liu

Xiaobo the democracy activist who was awarded this years Nobel Peace prize and raise the

issue of human rights81

80

httpwwwchinaorgcne-white200305269htm 81

httpwwwtelegraphcouknewsworldnewsasiachina8107148UN-Secretary-General-pushes-China-on-human-

rightshtml

UNHRC 23 of 44

5 November 2011 Yeqing Ji from Shanghai China will most likely not be able to have children

after she said two forced abortions physically impaired her uterus82

8 September 2011 The Chinese government has renewed Googlelsquos license to allow it to

continue operating its local website in the country83

13 November 2011 Seven months ago

Chinese police detained the countrylsquos most prominent artist Ai Weiwei at the airport and drove

him to a hidden location It was the beginning of what is to be a two-and-a-half month nightmare

for the architect and sculptor who is also a former darling of the Communist Party who later

turned into an outspoken government critic Ai was held on vague charges of economic crimes

was kept in isolation and subjected to Kafka-esque interrogations84

April 19 2011 Amnesty International a 21-year-old monk Phuntsog set himself on fire in an

apparent anti-government protest in March 2011 Instead of putting out the flames Chinese

police beat the young monk creating huge resentment in the monastery85

At least 11 ethnic

Tibetans have been detained for protesting against the event and against government policies

They are at risk of torture and other ill-treatment86

29 May 2011 300 Tibetan monks detained in Kirti monastery by Chinese security forces87

15 September 2011 Chinese Uighurs economic fears

Amid ethnic tensions minority regards modernization plans in Xinjiang as favoring Han Chinese

migrants88

20 November 2011 Another of Chinalsquos minorities the Hui Muslims in Ningxia do not feel

stigmatized

―There is an important reason why Hui and Han Chinese get along with each other Unlike

Muslims of the other ethnic minorities like Uighur Kazakh Kyrgyz and Tajik the Hui Muslims

speak Mandarin just like the Hans89

82

httpabcnewsgocomBusinesswoman-china-forced-abortions-leaves-unable-

childrenstoryid=14880884Tsia7LIk6so 83

httpwwwbbccouknewsbusiness-14832392 84

httpwwwthedailybeastcomnewsweek20111113ai-weiwei-speaks-out-on-his-detentionhtml 85

httphradvorgaggregatorsources10 86

httpwwwamnestyorgenlibraryassetASA170212011end75f7611-be66-4d5a-9391-

c80c43501d56asa170212011enhtml 87

httphumanrightshouseorgArticles16503html 88

httpwwwaljazeeracomvideoasia20110920119158016969449html 89

httpwwwtodayszamancomnews-263322-chinas-hui-muslims-do-not-feel-stigmatizedhtml

UNHRC 24 of 44

Conclusion

The United Nations Human Rights Council at LUMUN 2012 will be looked upon to provide a

framework for the resolution of these issues in a universal context The scope of the issues

should be expanded and applied to countries other than China The committee will have to make

recommendations which have universal application and resolve all aspects of the issue

comprehensively For any queries related to the study guide please do contact either (or both)

the committee directors at the given addresses

UNHRC 25 of 44

Topic Area B Abolishing the Death Penalty

Introduction to the Topic Area

The death penalty is formally defined as the execution of an offender sentenced to death after

conviction by a court of law of a criminal offenselsquo90

The concept of a capital crime is subjective

and states have made use of this practice in response to multiple forms of crime The use of the

death penalty has produced much controversy with regard to its apparent violation of

fundamental human rights as delineated in the Universal Declaration of Human Rights and

subsequent human rights charters and treaties It is asserted that the use of death penalty is in

contravention to the peopleslsquo right to life promised to every individual under Article 3 of the

Declaration91

Moreover Article 2 of the Charter of Fundamental Rights of the European Union

lucidly bars the imposition of death penalty as a form of punishment92

Arguments against the

use of death penalty are also made on the grounds of inhumane methods which are employed to

see out the process Historically multiple methods have been used which include death by

hanging severing of the head lethal injection shooting and electrocution93

94

As a response states have made keen efforts to abolish

the death penalty particularly in the last two decades as

can be interpreted from the graph on the right which

represents the number of states that have abolished the

death penalty Countries belonging to the European

region with the exclusion of Russia and Belarus have

sought to revoke the use of the practice The death

penalty is most commonly seen to be a formal practice

in most of the developing countries The trend is

apparent in Latin America Africa and Asia

96 countries have formally abandoned the use of death penalty 58 countries allow the use95

Other states have abolished the penalty in practice but the laws remain in place for the

imposition of the penalty as a response to certain crimes The imposition of the death penalty has

90

httpwwwbritannicacomEBcheckedtopic93902capital-punishment 91

httpwwwunorgendocumentsudhr 92

httpwwweuroparleuropaeucharterpdftext_enpdf 93

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffle

re-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 94

httpwwwdeathpenaltyinfoorgmethods-execution 95

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf

Figure 1 (Drag to enlarge)

UNHRC 26 of 44

seen a decline over the recent years with a fall in the number of executions that take place

annually It would however be incorrect to assume that the practice is not prevalent or widely in

effect Amnesty International reported that at least 2024 new death sentences were imposed in 67

countries in 2010 Moreover there were at least 17833 people sentenced to death worldwide at

the end of 201096

Again these are minimum figures which are the safest that can be inferred

from the given research There were 527 known executions carried out in 2010 globally97

This

figure however does not include the number of executions that took place in China where

analysts believe that more than a thousand people were put to death in the past year

The statistics represent the number of people executed through capital punishment One way to

formally define capital punishment is to regard it as the state sanctioned killing of an individual

through a judicial process as a punishment for a crime (defined as a capital crime by the state)98

Capital punishment is the most obvious and prevalent manifestation of the death penalty It is

often perceived as a statelsquos right in order to preserve law and order against any individual who

engages in serious crimes that threaten other individuals or the state Those who advocate against

the use of capital punishment label it as a symptom of a culture of violence not a solution to

itlsquo99

The controversy surrounding the topic is based on the legal ethical and moral acceptability

of the statelsquos right to an individuallsquos life The debate entails several social and economic factors

some of which will be reviewed in closer detail in the relevant section of this guide

One of the most striking aspects related to the issue is the imposition of the capital punishment

on juveniles The sentencing of juveniles to death is in clear breach of international law The

morality and validity of such a practice is often called into question and has been put under

relentless scrutiny despite all of which the practice is still carried out in a number of countries

Historically the United States China and Iran have the worst records relating to juvenile death

sentences100

The study guide also includes a separate section for the case of juveniles in which

the legal and social aspects of the problems are detailed

As stated states have made use of the death penalty to punish crimes of varying natures The use

of the death penalty is reserved for only the most seriouslsquo crimes as put forth in international

law101

The notion of a capital crime however is a subjective one states that have doled out

death sentences have defined it differently In certain countries the death penalty is only used to

charge criminals accused of war crimes In other countries the penalty is reserved for crimes like

96

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf 97

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010 98

httpusersrcncommwooddeathpenhtml 99

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 100

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 101

httpwwwunorgdocumentsecosocdocs1995e1995-78htm

UNHRC 27 of 44

murder rape or even robbery States also use the death penalty against individuals who are guilty

of treason The issue however is that many states practicing the death penalty impose the

punishment even when the crimes do not meet the threshold for the aforementioned most

seriouslsquo crimes The ability of states to define what constitutes as a capital crime has led to states

abusing their powers as has been observed in the sentences ordained by military courts

Moreover even the radicals who make the argument of the punishment fitting the crime agree

that in many instances individuals have been executed for softlsquo crimes crimes that were

certainly not tantamount to charges of murder or crimes against humanity The issue of apparent

violations of human rights is further exacerbated in these instances The study guide will discuss

the universal crimes that have resulted in the awarding of the death penalty and examine the

issue further The committee will be expected to discuss the feasibility of drawing up an

international definition of crimes which in isolated instances perhaps may be appropriate for a

sentence like the death penalty

Another pertinent aspect surrounding the debate is that of extrajudicial killings The execution of

a person by state authorities without the authority of a judicial proceeding is termed as an

extrajudicial killing Many states have used extrajudicial killings to establish their authority and

order without having to wade through the legal process By doing so they have deprived scores

of people of their fundamental right to free and fair trials Governments have also employed this

tactic to exercise political aggression and to suppress dissent A particular point of concern is the

fact that some states have made use of these killings even when they have officially revoked the

imposition of the death penalty Extrajudicial killings are carried out persistently in many

countries ndash the list includes countries like Iran Iraq Israel Philippines102

Most recently the

killing of Anwar al-Awlaki and Samir Khan in Yemen by a sanctioned National Security Council

move by the USA was an example of states embarking on such paths to eliminate threats to

national securitylsquo103

102

Multiple citations for each country can be found in the second paragraph article titled Extrajudicial killinglsquo on

Wikipedia 103

httpwwwtelegraphcouknewsworldnewsbarackobama7564581Barack-Obama-orders-killing-of-US-cleric-

Anwar-al-Awlakihtml

UNHRC 28 of 44

Wrongful convictions lead many to believe in the inherent incapacity of the death penalty to

serve justice On September 21 2011 US citizen Troy Davis was executed in Georgia after

which seven of the nine witnesses who testified against him in the case that led to his execution

recounted or retracted their evidences A petition with nearly one million signatures was put

forth to reconsider his case it was rejected On the same day a 17 year old boy was publicly

hanged in Iran for killing a popular athlete his justification based on self-defense was ignored

Also on the same day a Pakistani national was executed in China on grounds of drug trafficking

an offence that does not often result in capital punishment The need for the resolution of this

issue is pressing and the committee needs to deal with all aspects of the problem in a

comprehensive and enduring manner104

Capital Punishment

In 2010 23 countries implemented capital punishment A total of 527 executions (plus the 1000+

carried out in China alone) were known to have taken place with Iran Yemen USA and North

Korea meting out a significant number of sentences105

The figure is lower than the records

computed for years past There are more states which are now abolitionist either in law or in

practice with regard to the imposition of the punishment Gabon was officially the last country

to rescind the practice while bills calling for an end to capital punishment have been presented

to parliaments in Lebanon Mali Mongolia and South Korea106

Renewed efforts are

104

httpwwwamnestyorgennews-and-updatesus-executes-death-row-prisoner-troy-davis-2011-09-21 105

httpwwwguardiancouknewsdatablog2011mar29death-penalty-countries-world 106

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010

UNHRC 29 of 44

simultaneously being made on the international front to implement laws against capital

punishment A third resolution establishing a moratorium on the use of death penalty passed the

UN General Assembly on December 21 2010107

Despite the increasing momentum towards an eventual elimination of the practice the number of

executions taking place annually is a cause of major concern Advocates of the death penalty

assert that the practice is an effective means of deterring crime in society Public executions are

often held in Iran Afghanistan and Palestine for example to demonstrate the fate awaiting

those who commit similar crimes108

Arguments are made on the grounds of justice that it is

proper and fair to take an eye for an eye and a life for a life and that some individuals deserve

it for the crimes they commit

Those opposing the practice question the morality of an action sanctioned by the state which

endorses deprivation of the right to life a fundamental human right under the Universal

Declaration of Human Rights109

There are inescapable flaws within legal systems which are

aggravated by discrimination prosecutorial misconduct and inadequate legal representation

Moreover the risk of executing the innocent can never be eliminated110

An alternative is

presented in the form of imprisonment for life without parole which results in a parallel debate

is imprisonment for life a viable surrogate to the practice of death penalty A thread from this

debate also relates to the economic feasibility of carrying out a death sentence as opposed to the

feasibility of imprisonment for life

Deterrence

Capital punishment is often propagated as an adequate approach in the deterrence and prevention

of crime The logic is that if murderers are sentenced to death potential murderers will think

twice before killing for fear of losing their own life The deterrence theory presumes that the

once the punishment for a certain crime is established the criminal by committing the crime

voluntarily assumes the risk of receiving the prescribed punishment for the crime Only when the

most severe punishment has been set will there be a possibility of an individual evaluating their

actions in light of the consequences111

107

httpwwwundemocracycomA-RES-62-149pdf 108

httpwwwamnestyorgennews-and-updatessharp-rise-public-executions-iran-executes-first-juvenile-

offenders-2011-2011-04-27 109

wwwunorgendocumentsudhr 110

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 111

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 30 of 44

The death penalty it is asserted ensures that convicted criminals do not offend again moreover

it is deemed to be a just penalty for atrocious crimes It is further alleged that many criminals

who are set free even after lengthy sentences regress and go on to commit heinous crimes

Therefore there should never be the possibility of a release clause112

The deterrence theory is modeled on the grounds of human psychology logic and rationale As a

professor of jurisprudence Ernest van den Haag PhD wrote ―Common sense lately bolstered

by statistics tells us that the death penalty will deter murder if anything can People fear nothing

more than death Therefore nothing will deter a criminal more than the fear of death These

statements were further validated by a US Supreme Court Justice who said on record that

Prima facie the penalty of death is likely to have a stronger effect as a deterrent to normal

human beings than any other form of punishmentlsquo113

Numerous studies have been conducted on

the subject with varying results One of the most established studies was conducted in USA

using a panel data set of over 3000 counties from 1977 to 1996 which concluded that on

average one death sentence resulted in 18 fewer murders114

Delegates will be expected to be

familiar with other similar studies

These studies are commonly refuted as not crediblelsquo by opponents of the capital punishment

who also deny the correlation between crime and death penalty as a fabricated relationship which

cannot be empirically established115116

A study of the relationship between capital punishment

and the incidence of murder was conducted for the UN in 1988 and updated in 2002 The

conclusion was ―The investigation has not provided scientific proof that executions have more

deterrent effect than life imprisonment It is unlikely that such evidence will ever come

Deterrence hypothesis finds no support in the survey117

Another counter-argument asserts that crime is still a persistent feature of the societies that

continue to award the death penalty while many of the abolitionist states enjoy low crime rates

This can be evidenced by comparing the crime rate in USA or Pakistan with that of Canada or

some European state In Canada for example the homicide rate per 100000 fell from a peak of

309 in 1975 the year before the abolition of the death penalty for murder to 241 in 1980 and

in 2003 27 years after abolition the homicide rate was 173 per 100000 44 per cent lower than

in 1975118

112

httpwwwdeathpenaltyinfoorgfacts-about-deterrence-and-death-penalty 113

httpdeathpenaltyproconorgviewresourcephpresourceID=002000 114

httpdeathpenaltyproconorgsourcefilesThe20Deterrent20Effect20of20Capital20Punishmentpdf ndash

Delegates should carefully examine certain parts of this document to establish the credibility of the assertions made

They should also invest in trying to locate studies that refute the assertions made in this and similar studies 115

httpwwwdeathpenaltyinfoorglaw-enforcement-views-deterrencelawenforcement 116

httpwwwdeathpenaltyinfoorgDonohueDeterpdf 117

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 118

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml

UNHRC 31 of 44

The lack of evidence on the production of a unique deterrent effect points to the danger of

relying on the deterrence hypothesis as a basis for public policy on the death penalty

Retribution amp Morality

An important terminology that delegates need to familiarize themselves with is that of

―retributivism119

It is defined as ―a policy of criminal justice that sponsors the punishment of

criminals in retribution for the harm they have inflicted120

Criminals deserve to be punished in

proportion to the gravity of their crime regardless of whether the victim or anyone else desires

it we may all deeply regret having to carry out the punishment but consider it warrantedlsquo is

what many say in defense of the theory121

The need for the establishment of a visibly just state arises from the potential risks of not having

one As has been visible in many developing countries with shaky legal systems when criminals

are not adequately punished for their unlawful behavior the public takes the law into its own

hands and deals out vigilante justice It is asserted that retributivism is essential for a functioning

society where individuals respect the supremacy of law

The concept of retribution in society is also grounded in religious beliefs The concept of an eye

for an eye has been a part of all three Abrahamic traditions However in the modern world it is

Islamic nations that still retain the practice based on these grounds Similar traditions can be

found in Hinduism Christianity and Buddhism as well as other religions in different parts of the

world In many non-secular countries the constitutions and state laws are derived from religious

doctrines

Opponents dismiss this aspect of the argument as being emotionally charged with little rational

logic to support the contention They claim that the establishment of capital punishment gives

birth to a culture of violence endorsed by the state It perpetuates the cycle of aggression and

brutality something which the state should be actively inhibiting not endorsing

Wrongful Convictions

The death penalty carries with it the danger of wrongfully convicting an innocent person for

crimes he did not commit There is the potential for capital punishment to evolve into sheer

miscarriage of justice as in certain circumstances states are often seen to rush the trials and

convict the accused hastily This practice takes foremost apparently in military courts often in

119

Cavadino M amp Dignan J (1997) The Penal System An Introduction (2nd ed) p 39 London Sage 120

httpdictionaryreferencecombrowseretributivism 121

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 32 of 44

the developing or lesser-developed countries where the system of law is not properly established

It is not however exclusive to these countries Examples can be drawn from countries like

Philippines Thailand Iran and Palestine to name just a few where executions are carried out at

alarming pace removing the possibility of reviews

On 15 August 2004 Atefah Rajabi Sahaaleh was hanged in a public square in the Iranian city of

Neka Her death sentence was imposed for adultery and crimes against chastity122123

Atefah

was executed a week after the trial was run Following the execution the Judge for the case was

arrested for investigation by the Intelligence Ministry The media reported that in addition to the

confession of his rape of Atefeh Judge Rezai who served as judge jury and executioner also

confessed to torturing her during interrogations to extract names of others she had relations with

No transcripts from court proceedings were recorded The State alleged that Atefah was 22 at the

time of her execution A witness later claimed The judge just looked at her body because of

the developed physique and declared her as 22124

ndash her birth certificate revealed she was born

in 1988 Furthermore Atefah did not have access to a proper defense where she could contest

charges leveled against her This is one example of many such cases of miscarriage of justice

Something that recurs in these cases is the failure of the police or prosecuting authorities to

prevent the use of unreliable witnesses the misuse of evidence or confessions and the provision

of inadequate defense representation The advent of DNA profiling and the use of it as positive

evidence in criminal cases has resulted in the exoneration of multiple death row inmates on

grounds of forensic evidence or lack thereof Since 1973 138 people have been released from

death row in the United States after it was proven that they were innocent125

In 2009 Paul

House was cleared of murder and exonerated in Tennessee USA after having served 22 years

on death row His innocence was proclaimed in light of substantial additional DNA testing and

further investigationlsquo 126

Amnesty International has noted examples of wrongful convictions from elsewhere as well

including Jamaica Japan China Nigeria and Tanzania127

Paul G Cassell a former law clerk to

the Chief Justice of USA stated the mistaken release of guilty murderers should be of far greater

concern than the speculative and heretofore nonexistent risk of the mistaken execution of an

innocent personlsquo highlighting the case made by those who advocate the death penalty even in

light of wrongful convictions128

122

httpwwwcosmolearningcomdocumentariesexecution-of-a-teenage-girl1 123

httpnewsbbccouk2hi5217424stm 124

httpnewsbbccouk2hi5217424stm 125

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 126

httparticlescnncom2009-05-13justicetennesseeexonerated_1_death-row-inmate-dna-evidence-house-

arrest_s=PMCRIME 127

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 128

httpdeathpenaltycurriculumorgstudentcaboutargumentstestimony3bhtm

UNHRC 33 of 44

Alternative to Death Penalty

All abolitionist states have reverted to the practice of sentencing criminals to life imprisonment

(some without parole) which is also termed as death by incarceration Widely regarded as a more

humane course of action life imprisonment is also alleged to be a more economical practice

While ensuring public safety by keeping criminals away from society this system also saves the

lives of innocent people who have been falsely or wrongfully convicted The setup inhibits and

curbs the cycle of violence while retaining the deterrence factor it is strongly asserted

Advocates for the death penalty are averse towards life imprisonment for a number of reasons

They cite the unreliability of the system as one of the flaws which impedes the possibility of

such a sentence being successful A certain James Moore serves as a valid example in this case

In 1962 James Moore raped and strangled 14-year-old Pamela Moss The victimlsquos parents opted

out of capital punishment for Moore and he was instead sentenced to life in prison without

parole Twenty years later a change in sentencing laws in 1982 renders James Moore eligible for

parole every two years129130

Kenneth McDuff is another example McDuff was convicted and sentenced to life imprisonment

Years later due to the issue of overcrowding in prisons McDuff was released following which

he killed eight more people McDufflsquos example is of an individual from a developed country

with an established legal system in place131

Overcrowding is a feature of prisons in developing

or lesser developed countries In many such states criminals have also been known to easily

break out from penitentiaries

The economic aspect of the debate is murky at best There is a lack of empirical data on the

subject which is why the arguments of both these sides cannot be settled beyond doubt

Advocates of capital punishment insist that the overall costs of the practice are far lesser than the

costs of housing an inmate for a lifetime132

They also suggest that the life imprisonment allows

criminals to conceive new habeas corpus petitions which on legal grounds cannot be rejected

automatically resulting in more trials

On the other hand substantial arguments are made which stress that the cost of legal proceedings

in capital cases is in truth more than that of other cases States and nations spend a significant

portion of the taxpayerlsquos money in meting out such punishments133

Delegates when addressing

this portion of the debate will need to be aware of the financial aspects of the issue as it forms

for many states an important part of whether capital punishment should be revoked or

not

129

httpwesleylowecomcphtmldeter 130

httpwwwnytimescomkeywordparole 131

httpwesleylowecomcphtmldeter 132

Ibid ndash view section titled Capital Punishment and its costslsquo 133

httpwwwamnestyusaorgour-workissuesdeath-penaltyus-death-penalty-factsdeath-penalty-cost

UNHRC 34 of 44

Imposition of Death Penalty on Juveniles

The prohibition on the death penalty for crimes committed by juvenile offendersmdashpersons under

age 18 at the time of the offensemdashis well established in international law specifically in the

Convention on the Rights of Child

ldquoNo child shall be subjected to torture or other cruel inhuman or degrading treatment or

punishment Neither capital punishment nor life imprisonment without possibility of release shall

be imposed for offences committed by persons below eighteen years of agerdquo134

- Article 37(a) Convention on the Rights of Child

ldquoSentence of death shall not be imposed for crimes committed by persons below eighteen years

of age and shall not be carried out on pregnant womenrdquo135

- Article 6(5) International Covenant on Civil and Political Rights

The treaties are a unanimously agreed set of non-negotiable standards and obligations By

acceding to the treaties and ratifying them governments commit to protecting and ensuring

childrens rights and to holding themselves accountable for this commitment before the

international community

Even though the practice of capital punishment on juveniles is relatively rare however in clear

contravention of international law nine countries have executed offenders who were juveniles at

the time of their crimes between 1990 and 2005136

These countries include the Peoples Republic

of China (PRC) the Democratic Republic of the Congo Iran Nigeria Pakistan Saudi Arabia

Sudan the United States and Yemen137

The USA has since moved to implement a ban on capital

punishment for juveniles However in most other countries of the preceding list the practice is

still enshrined in the judicial system Iranlsquos record in particular has been abominable over the last

decade It has carried out 39 executions of persons under the age of 18 since 2005 Presently

over a hundred individuals are placed on death row for crimes committed as juveniles The

executions of Mahmoud Asgari Ayaz Marhoni and Makwan Moloudzadeh became international

symbols of Irans child capital punishment and the judicial system that hands down such

134

httpwww2ohchrorgenglishlawcrchtm 135

httpwww2ohchrorgenglishlawccprhtm 136

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf - This document by the Human Rights Watch

called The Last Holdoutslsquo is a good summary of juvenile executions and should be reviewed 137

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 - Contains a list with

statistics and details of countries which have allowed the imposition of death sentence to juveniles

UNHRC 35 of 44

sentences138139140

Saudi Arabia and China too have questionable records that need to be

scrutinized further

While regional treaties and charters usually substantiate international law the Arab Human

Rights Charter of 2004 is unique among regional and international treaties in that the ban on the

juvenile death penalty in it is not absolute but merely optional141

Furthermore national laws in states that observe such a practice are in violation of

international legally-binding charters In Iran and Saudi Arabia laws usually treat a child the

same way as an adult criminal offender would be treated Article 10(3) of the International

Covenant on Civil and Political Rights emphasizes the need for demarcation between the

handling of children and that of adults in stating ―Juvenile offenders shall be segregated from

adults and be accorded treatment appropriate to their age and legal status142

The definition of a child in these Muslim states is unclear as adulthood is associated with

attainment of puberty which is a relative concept The Committee on the Rights of the Child in

January 2005 censured the Saudi government for its practice of imposing the death penalty on

juveniles terming it a serious violation of the fundamental rights The committee was deeply

alarmed over the discretionary power judges hold to treat juveniles as adults as was stated in

the committeelsquos report Iran too was strongly condemned following the release of an

international report highlighting the dire situation in Iran by the International for Human Rights 143

138

httpwwwfoxnewscomstory0293329798200html 139

httpnewsbbccouk2himiddle_east7130380stm 140

httpenwikipediaorgwikiCapital_punishmentIran 141

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 142

httpwww2ohchrorgenglishlawccprhtm 143

httpwwwfidhorgIMGpdfRapport_Iran_finalpdf

UNHRC 36 of 44

On August 19 2008 Iranian authorities executed Seyyed Reza Hejazi at Isfahan Central Prison

for his role in a murder committed in 2003 when he was 15 Hejazi was tried as an adult by

Branch 106 of the Isfahan General Court even if he did not qualify as one under international

stipulations and sentenced to death on November 14 2005144

In Saudi Arabia Mu`id bin

Husayn bin Abu al-Qasim bin `Ali Hakami was executed on July 10 2007 for a murder he

allegedly committed three years earlier when he was 13 years old145

The judges in these states

because of the implementation of the Sharialsquo law have a large amount of discretion with regard

to their rulings This discretion is often abused in the interrogation and judicial proceedings In

Pakistan authorities hanged Mutaber Khan in Peshawar Central Prison on June 13 2006 on

charges of murder of five people The fact that he was held in the juvenile wing of Peshawar

Central prison and the evidence presented by the accused confirming that his age was below 18

at the time of the killings were not taken into account during the trials and Mutaber was charged

as an adult in the case146

While the above does not cover exhaustively the practice of capitally punishing juveniles the

committee is expected to be well read on the matter The committee will be required to devise

ways to strictly apply the existing international law on the subject to curtail further deaths of

juveniles by states A series of recommendations on better implementation of international

covenants will be expected from the committee Delegates at UNHRC will also have to

familiarize themselves with the stipulations in the national laws of countries practicing juvenile

death penalties (Iran Saudi Arabia Pakistan Nigeria Sudan Yemen and UAE among others) to

discuss how these states are constitutionally able to bend international law and mete out the

illegal punishments

144

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 145

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 146

See FIDH and Human Rights Commission of Pakistan ―Slow march to the gallows and ―Condemned Prisoner

Executed Dawn Newspaper Karachi June 14 2005 httpwwwdawncom20060614nat16htm

UNHRC 37 of 44

Universality of Laws Incurring the Death Penalty

In countries which have not abolished the death penalty capital punishment may be imposed

only for the most serious crimes it being understood that their scope should not go beyond

intentional crimes with lethal or other extremely grave consequences

- Safeguards guaranteeing protection of the rights of those facing the death penalty147

Laws incurring the death penalty or capital crimes have certain uniformity the world over This

is of course barring states that are religiously affiliated and whose law systems are not secular

in nature The list of capital crimes for those states with non-secular legal systems is slightly

different The Human Rights Commission had decided that the imposition in the State party of

the death penalty for offences which cannot be characterized as the most serious including

apostasy committing a third homosexual act illicit sex embezzlement by officials and theft by

force are incompatible with Article 6 of the Covenant Economic offences including

embezzlement drug related offences political offences and robbery were also referred to148

The reason why looking into capital crimes and trying to garner a global impression of them is

important is that the death penalty can only realistically be abolished in a piecemeal way This

process will entail shortening the list of capital crimes The UN formally notes that ―in order

fully to guarantee the right to life provided for in article 3 of the Universal Declaration of

Human Rights the main objective to be pursued is that of progressively restricting the number of

offences for which capital punishment may be imposed with a view to the desirability of

abolishing this punishment in all countries149

The first established death penalty laws date as far back as the Eighteenth Century BC in the

Code of King Hammaurabi of Babylon which codified the death penalty for 25 different crimes

By the 1700s 222 crimes were punishable by death in Britain including stealing cutting down a

tree and robbing a rabbit warren In the 19th

century the death penalty was eliminated for over

100 of the 222 crimes punishable by death 150

In modern times the UN Special Rapporteur on

extrajudicial summary or arbitrary executions has stated that the death penalty should be

eliminated for economic crimes and drug-related offences and that the restrictions to its use

―exclude the possibility of death sentences for so-called victimless offences ndash including acts of

treason espionage and other vaguely defined acts usually described as crimes against the Statelsquo

or disloyaltylsquo and ―actions primarily related to prevailing moral values such as adultery and

prostitution as well as matters of sexual orientation151

147

httpwww2ohchrorgenglishlawpdfprotectionpdf 148

httpwwwunhchrchtbsdocnsf0bc310a747155dff88025655300537faeOpendocument 149

General Assembly resolution 2857 httpwwwunodcorgpdfcompendiumcompendium_2006_part_01_05pdf 150

httpdeathpenaltycurriculumorgstudentcabouthistoryhistoryPDF 151

httpswwwabofimedia24259report10pdf

UNHRC 38 of 44

Contrary to the made recommendations even political dissent warrants a death sentence in

several countries most notably in China and Iran In 2010 nearly 20 Kurdish people were

executed for political offences in Iran The country is known for keeping dissent especially from

the Kurds suppressed Most are executed on the grounds of moharebeh or enmity against God

Moreover challenging the power of the Ayatollah is also punishable by death These charges are

neither explicit nor in line with international guidelines over what crimes are punishable

capitally In Iran judges must handle such cases carefully as Iranian law provides for only one

punishment if an individual is found to be guilty of treason Libya too thwarts political dissent

with firm laws in place for punishing by death those who illegally form groups organizations or

associations against the state152

Saudi Arabia too is worth note for its vaguely phrased laws governing capital punishment

Intentional murder and crimes that spread ―mischief in the land (Fasad fil-ardh) merit death In

2010 the government announced that it had executed 26 people all by beheading Crimes that

―spread mischief include witchcraft and sorcery153

How is one convicted of witchcraft in the

21st century What can the international community do when regarding countries such as these

Treason arguably along with murder is the capital crime that has yet to be phased out by many

countries In some such as Brazil treason during warfare is the only crime for which a person

can be sentenced to death In the Gaza Strip under Hamas any sort of cooperation with Israeli

forces during military actions is also punishable by death In others including Algeria Bahrain

Iran and Malaysia treason is punishable by death in all circumstances The United States too has

federal laws governing treason under which traitors ―shall suffer death154

Child sex abuse is another crime that is widely held to merit the death penalty In Russia for

example according to the Russian Public Opinion Research Center an overwhelming majority

consider the death penalty to be an acceptable punishment especially in relation to molestation

155 In 2009 however Russias Constitutional Court effectively abolished the death penalty by

extending indefinitely a 13-year-old moratorium on capital punishment156

Indonesia has some of the strictest penalties for drug related crimes in the world Roughly half of

those on death row are incriminated with drug-related charges157

In 2008 though the most high

profile executions were of terrorists Three of those found responsible for the 2002 Bali

bombings were executed by shooting158

Generally speaking however a significant proportion of

152

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 153

httpwwwstategovgdrlrlshrrpt2010nea154472htm 154

httpdeathpenaltyproconorgviewresourcephpresourceID=1172 155

httpenrianrutrenddeath_penalty 156

httpwwwreuterscomarticle20091119idUSLJ330478 157

httpwwwnytimescom20080711worldasia11iht-indo114421132html 158

httpnewsbbccouk2hiasia-pacific7718246stm

UNHRC 39 of 44

the executions or death sentences recorded (in 2010) in China Egypt Indonesia Iran Laos

Libya Thailand United Arab Emirates and Yemen were for drug-related offences In December

2010 the amended Anti-Narcotics law came into force in Iran extending the scope of the death

penalty to include additional categories of illegal drugs (for example crystal meth) possession

of which became punishable by death Also around the same time the National Assembly of

Gambia voted to extend the scope of the death penalty by making the possession of more than

250g of heroin or cocaine an offence punishable by death159

Several states allow for the death penalty for crimes of blasphemy and other crimes for

nonviolent expression and association In Pakistan Aasia Bibi a Christian mother of five was

charged with blasphemy and sentenced to death after a trial largely believed to be unfair on 8

November 2010 She is currently on death row The country is also noted for its laws concerning

capital crimes The list includes 27 crimes most of which go beyond the notion of ―most serious

crimes as recommended by the International Covenant on Civil and Political Rights Extra-

marital sex and blasphemy are examples of some capital crimes in the country In December

2007 Pakistan voted against a United Nation General Assembly resolution for a moratorium on

the death penalty The year before however the nation amended its law on rape and adultery

charges which are no longer punishable by death160

As far back as 1989 recommendations have been made as to how to abolish the death penalty

Member states (of the UN) have been urged ―to publish for each category of offence for which

the death penalty is authorized and if possible on an annual basis information about the use of

the death penalty including the number of persons sentenced to death the number of executions

actually carried out the number of persons under sentence of death the number of death

sentences reversed or commuted on appeal and the number of instances in which clemency has

been granted and to include information on the extent to which the safeguards referred to above

are incorporated in national law161

The committee must inspect how far this recommendation

has been adopted and should seek to rectify the weaknesses in the system of gradually

abolishing the death penalty Can a target year be designated by which crimes meriting the death

penalty could be made universal How can countries with non-secular legal systems be brought

into the fold of international law

159

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 160

httpwwwfiacatorgenIMGpdfdppakistan-enpdf 161

httpgraduateinstitutechfacultyclaphamhrdocdocsecosocresolutiondeathpen1989html

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 2: UNHRCFINAL

Message from the Committee Directors

Dear all

Congratulations on becoming a part of United Nations Human Rights

Council an inter-governmental body within the United Nations framework

designed to promote and protect human rights internationally We are ex-

tremely pleased to be chairing UNHRC at LUMUN lsquo12 Sophomores at

LUMS we are concentrating in Literature Philosophy and History and

Economics and Politics respectively So basically between us wersquore doing

almost everything

As students we have been deeply engaged with international relations

current affairs and academic debates a product of which is our interest in

the Human Rights Council The nature of discussion relevant to UNHRCrsquos

mandate is one that can be carried out anywhere Having said that though

please do be aware that human rights issues are often intricate questions

immersed in political convolutions The topics at UNHRC this year are ex-

amples of two controversial issues which have no simple solutions and

require creativity and resolve on the part of delegates to negotiate a solu-

tion Particular focus on the practicality and applicability of resolutions

will be required from you as delegates in light of international diplomatic

standards We hope that as individuals you engage in the sessions with a

unique perspective and take away from the committee a more sophisti-

cated view of these issues

We have thoroughly enjoyed our experiences with LUMUN In retrospect

these experiences have been eerily similar We both attended LUMUN rsquo08

as delegates and won the Outstanding Diplomacy award in our respective

committees We then joined LUMUN in our freshman year and were ap-

pointed Assistant Committee Directors for the United Nations Security

Council for LUMUN 2010 Both of us have chaired the Disarmament and

International Security Committee (DISEC) at separate intra-LUMS MUNs

And now here we are at LUMUN 2012 LUMUN has been an excellent op-

portunity for us to explore our interests and engage with people on a simi-

lar note As your Committee Directors we hope to provide you with the

same opportunities and strive to improve your experience as a delegate

Please note that given that we are a simulated council we have taken cer-

tain liberties For starters the Councilrsquos delegations will not be mirroring

current Council memberships Furthermore our first topic would not be

something discussed in formal international spheres We realize this but

in view of pushing you as delegates to think critically and expand your

knowledge of global affairs inspecting Chinese human rights violations is

appropriate The guide leans towards providing examples of these viola-

tions and not many rationalizations of them That we feel is the domain

of your personal research

To conclude we truly hope all of you enjoy your time at LUMUN 2012 In

order for this to happen delegates must be cognizant of the topics under

review We encourage you to scrupulously research your stances and have

more than just a basic impression of what the topics entail Delegates are

expected to be aware of all updates with regard to the subject matter and

to treat the study guide as an introduction to the topics and not as a stand

-alone document In the process of deciding the topics researching for and

compiling the guide we have become increasingly involved with these is-

sues We hope that you reciprocate our levels of interest and show the

same level of enthusiasm Delegates you are welcome to approach either

of us with any queries that you may have

All the Best

Khadija Mahsud amp Sarim Zia

Committee Directors UNHRC

UNHRC 1 of 44

Introduction to the Human Rights Council

World War II saw some of the worst atrocities of human history It was in the aftermath of the

inability of the League of Nations to prevent international unrest and human rights violations that

the United Nations Charter was promulgated and the UN was set up in 1945 The foundational

premise from which the UNlsquos committees and councils derive their agendas is the protection of

fundamental human rights It is in this vein that the Human Rights Council (and the Commission

it replaced) performs the most integral of functions of the UN Subsequent to the Charter

another landmark document was drawn up in 1948 namely the Universal Declaration of Human

Rights It was the first explicit global expression of the worldlsquos commitment to upholding the

sanctity of human rights It is from the permanent and unprecedented potency of the Declaration

that all subsequent human rights conventions and treaties have been derived both within and

outside of the UN Together with the International Covenant on Economic Social and Cultural

Rights and the International Covenant on Civil and Political Rights it forms the International

Bill of Human Rights

It was through the UN Charter that the Commission on Human Rights was established in 1946

with the purpose of promoting and protecting rights internationally Even though the

Commission successfully achieved the creation of the Universal Declaration of Human Rights it

was repeatedly censured for lacking constructive discussion on human rights issues It was

allegedly used a medium to blame countries and settle political scores It was also critiqued for

being composed of member nations with questionable human rights records such as China Cuba

Zimbabwe and Sudan This among other things led to the replacement of the Commission with

the Council The Council was formed in 2006 through a resolution of the General Assembly

(Resolution 60251)1 that passed with an overwhelming majority The UN Secretary General at

1 GA Resolution 60251 httpwww2ohchrorgenglishbodieshrcouncildocsARES60251_Enpdf

UNHRC 2 of 44

that time Kofi Annan referred to it as a historic resolution that gives the United Nations a

much needed chance to make a new beginning in its work for human rights around the world

The main aim of the Council is to report to the General Assembly and work with it to improve

the situation of global human rights As a specialized body it focuses solely on human rights and

managing the protection and advancement of the human rights of all individuals It aims to

promote universal respect for the protection of all human rights and fundamental freedoms as

demarcated in the International Bill of Rights and the UN Charter for all without distinction of

any kind and in a fair and equal manner Recommendations are made on all documented human

rights violations including gross and systematic violations

The Council can only make recommendations on violations of human rights to the GA which in

turn can suspend the voting rights of the accused Council member The Council also makes

recommendations to the GA for further development of international law in the field of human

rights

The Council comprises of 47 members elected on a geographic quota-based criterion for three-

year-long terms Members elected into the Council by the General Assembly must ―uphold the

highest standards in the promotion and protection of human rights fully cooperate with the

Council and be reviewed under the universal period review mechanism during their term 2

A year after its inception the Human Rights Council designed Resolution 51 in order to provide

mechanisms through which human rights situations could be monitored3 The Resolution

included the Universal Periodic Review (UPR) system4 Through this human rights situations in

individual UN member states are reviewed and subsequently discussed by the entire Council

sitting as a working group through an interactive dialogue with the concerned State The Review

system incentivizes states to independently reform and review domestic human rights situations

prior to international inspection which facilitates the fulfillment of the aim of the Council

Human rights situations are meant to be reviewed on a rotational basis for all 192 UN member

states

2 httpwww2ohchrorgenglishbodieshrcouncildocspledgespdf

3 Resolution 51 httpapohchrorgdocumentsEHRCresolutionsA_HRC_RES_5_1doc

4 Please see the following for information on the UPR of China

httpwwwohchrorgENHRBodiesUPRPagesCNSession4aspx

UNHRC 3 of 44

Conference underway at the UNHRC in Geneva

The Resolution also included the delineation of Special Procedureslsquo established by the former

Commission on Human Rights to comprise of five-member working groups or individual

experts (commonly referred to as Special Rapporteurs) to monitor human rights violations in

thematic or country-specific loci There are currently five Working Groups on people of African

descent on Arbitrary Detention on Enforced or Involuntary Disappearances on the Use of

Mercenaries to Impede the Right of Peoples to Self-Determination and on Situations

(Confidential 1503 Procedure)5

The mandates of the Special Procedures are established and defined by the resolution creating

them Some of the thematic mandates adopted by the Council include the issue of human rights

defenders torture and minorities Special Rapporteurs often conduct fact-finding missions

in countries to investigate allegations of human rights violations They can only visit

countries that have agreed to invite them

The Council is currently headed by Laura Dupuy Lasserre of Uruguay It concluded its

eighteenth session in September 2011 The diversity of the political and social issues

encompassed in the agenda resulted in discussion of issues as varied as the situation in Libya on

one end and water sanitation on the other Also discussed was the situation of human rights in

Syria and the pattern of widespread systematic human rights violations by Syrian security and

military forces was examined The illegal blockade imposed on Gaza was also under focus

Furthermore the Council adopted the outcomes resulting from debate over the Universal

Periodic Review of sixteen countries

5 httpwww2ohchrorgenglishbodieschrworkinggroupshtm

UNHRC 4 of 44

While the Council faces criticism along the lines of that made against the Commission it has

come a long way from being the ―shadow on the ―reputation of the UN system as whole 6

6 httpnewsbbccouk2hiamericas6919268stm

UNHRC 5 of 44

Topic Area A The Great Firewall of China Review of the Human Rights Situation

Introduction to the Topic Area

The Peoplelsquos Republic of China is the worldlsquos most populous country with an estimated

population of 137 billion It is also one of the largest countries in terms of its land territory

China has firmly established itself as a premier world economic powerhouse It is the worlds

second-largest economy after the United States by both nominal GDP ($593 trillion) and

purchasing power parity ($1012 trillion) A single-party state governed by the Communist Party

of China it is widely acknowledged to be the worlds fastest-growing major economy and the

worlds largest exporter and second-largest importer of goods China is also a permanent member

of the UNSC and is a prominent figure in international politics It is a recognized nuclear

weapons state and has the worlds largest standing army with the second-largest defense budget

China is on par with the United States as a superpower and is soon even expected to supersede

the latter as the worldlsquos major politico-economic power

However Chinalsquos record in relation to human rights violations stands out for all the wrong

reasons China has been ruled by the Communist Party since it gained power and established the

Peoplelsquos Republic of China in 1949 It is believed to be in breach of numerous human rights and

its transgressions are a subject of much concern for the entire international community Some

issues like the Tiananmen Square of 1989 or that of Mr Liu Xiaobolsquos imprisonment have seen

the light of day and escaped the iron clutches of Chinese control on media However thousands

of other cases are never brought out into the open and are unable to draw international attention

which is why this year at LUMUNlsquos United Nations Human Rights Council the debate will focus

on China and its human rights violations The human rights abuses in focus will be Chinalsquos

violation of reproductive rights the case of internet censorship in China and the right to free

speech political prisoners in China and illegal detention the infringement of rights in the

conflict with Tibet and ethnic minority rights

The committee will not only be expected to discuss all aspects of the issues distinctly and in

extensive detail The committee will also be expected to be familiar with the Universal

Declaration of Human Rights all pertinent treaties resolutions and conventions

UNHRC 6 of 44

Chinarsquos Violation of Reproductive Rights

While reproductive rights are not specifically mentioned in the Universal Declaration of Human

Rights they are widely understood to be an extension of the freedom of choice and right to life

They are to be granted equally to all humans without discrimination of race sex language or

religion under the United Nations Charter7 Reproductive rights embrace certain human rights

that are already recognized in national laws international human rights documents and other

relevant UN consensus documents The World Health Organization defines reproductive rights

in the following manner

ldquoReproductive rights rest on the recognition of the basic right of all couples and individuals to

decide freely and responsibly the number spacing and timing of their children and to have the

information and means to do so and the right to attain the highest standard of sexual and

reproductive health They also include the right of all to make decisions concerning reproduction

free of discrimination coercion and violence8rdquo

Only if individuals have the freedom to be in control of their sexual and reproductive lives can

uninhibited social development occur However the lack of any binding international covenant

on the subject is a grave state of affairs Soft laws in the form of non-binding measures are

often deemed too inadequate in mounting a challenge against the issue The United Nations

Human Rights Council has the capacity to make recommendations for the revision of the

aforementioned fact and will be something that the committee should focus on

Reproductive rights include in their spectrum the right to legal or safe abortion the right to

access quality reproductive healthcare the right to birth control and the right to education in

order to make well-informed reproductive choices without any coercion or violence9 Equality

and equity for men and women is of paramount importance while addressing such civil liberties

so that individuals are able to make free and informed choices in all spheres of life without any

discrimination of any kind An essential aspect of the debate is related to the right to privacy that

all individuals must be granted in the process of their decision-making

The provision of such personal human rights is notably absent in China With the stern

implementation of the one-childlsquo policy10

China has undertaken extreme measures at the cost

of innumerable human rights to curtail population growth Despite having previously ratified the

7 Article 1 of the UN Charter httpwwwunorgendocumentscharterchapter1shtml

8 Gender and reproductive rights home page httpwwwwhointreproductivehealthen

9Amnesty International USA

httpwwwamnestyusaorgStop_Violence_Against_Women_SVAWReproductive_Rightspagedoid=1108242ampn

1=3ampn2=39ampn3=1101 10

Article 18 of Population and Family Planning Law of Peoplelsquos Republic of China

httpwwwunescaporgesidpsispopulationdatabasepoplawslaw_chinachina20pop20and20family20plan

ningpdf

UNHRC 7 of 44

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in

198011

which prohibits coercion in family planning policies12

China continues to dictate the

reproductive lives of all its citizens While the Law on Population and Family Planning states

that one child is mostly merely encouraged abusive or coercive enforcement measures such as

forced abortions compulsory sterilizations and the forced insertion of intra-uterine devices after

abortions or births are common practices that are regularly documented13

Forced sterilizations are a troublingly common practice in other regions as well Perulsquos case is

important in this regard with its program of achieving a target number of sterilizations each

year sometimes numbering in the hundreds of thousands Indeed the government would

sometimes bribe women to undergo these procedures in exchange for food and medicine for

their existing children 14

A system of enhanced monitoring strategies is often regarded as one of

the solutions to the problem

Another pervasive measure employed by the state is the routine monitoring of the menstrual

cycle of women particularly those in the child-bearing age by family planning officials15

Their

employment is often contingent upon compliance with the policy The right to privacy is

severely breached in all such instances Furthermore unmarried women are not allowed to have

children and even married couples must apply for a birth permit before they can legally bear

children16

Analyzing the statelsquos penetrating involvement and interference in the private spheres

of individuals in light of existing treaties and conventions will be one of the committeelsquos tasks

Women and couples who defy the policy face fines amounting to several yearslsquo salary have their

access to social services cut and are even imprisoned in certain cases Their so-called black

childrenlsquo have no legal status in China meaning these children are not granted any rights

whatsoever and do not have access to education health or any other services provided by the

State There are an estimated 6 million undocumented children in China most of which are

believed to be girls17

The cases of Mao Hengfeng and Chen Guangchengserve as prime examples demonstrating the

inhumane nature of penalties handed out by the Chinese state to violators of the one-child

policy18

Mao a human rights activist was sentenced to two and a half years in prison after she

refused to have an abortion Chen was a blind self-taught lawyer and activist who was charged

and punished with more than four years in prison after exposing abuses in the implementation of

the one-child policy

11

httpunifem-eseasiaorgChina 12

httptreatiesunorgPagesViewDetailsaspxsrc=TREATYampmtdsg_no=IV-8ampchapter=4amplang=en 13

httpwwwrhrealitycheckorgnode7926 14

httpwwwwebsteredu~woolflmforcedsterilizationhtml 15

Page 2 httpwwwcensusgovpopulationinternationalfilesspSP73pdf 16

httpfactsanddetailscomchinaphpitemid=128ampcatid=4ampsubcatid=15 17

Ibid 18

httpwwwrhrealitycheckorgnode7926

UNHRC 8 of 44

The appalling state of affairs is further augmented by the actions the Chinese state takes to

impede the birth of conceived children It implements very strictly a program of compulsory

sterilization and forced abortions to minimize the birth of a second child in a family While

abortion itself may be a debatable and controversial topic the subset of such a controversy in the

form of a state-regulated forced abortion is excruciatingly black and white The undeniable

cruelty of forced abortions is not a deterrent strong enough for the Chinese government and the

phenomenon exists widely in China In fact the policy leads to an estimated 13 million abortions

every year with many of those ordered by local authorities Infanticide is a common practice

especially in the rural areas of the country19

Women are abducted by the state and at the cost of

their lives are forced to undergo forced and mostly unsafe abortions

In October of 2010 China forced an eight-month pregnant woman into an abortion for breaching

the one-child policy20

Government officials entered Xiao Aiyinglsquos residence hit and kicked her

in the stomach and subsequently dragged her to the hospital where doctors injected her with a

lethal drug to kill her unborn baby Xiaolsquos husband later described the incident They held her

hands behind her back and pushed her head against the wall and kicked her in the stomachlsquo The

animalistic discourse adopted by the government officials is a testimony to Chinalsquos open rebuke

for human rights More recently Womenlsquos Rights without Frontierslsquo and China Aidlsquo reported

the death of a six-month pregnant woman during a forced abortion on October 12th

201121

Jihong Ma was seized by Family Planning Officials for a forced abortion having violated the

one-child policy

While the positive environmental impact of the prevention of 300 to 400 million births may be

cited22

it must be noted the one-child policy privileges only the wealthy who can afford the

fines for additional births and have better access to contraceptives and health care while

punishing the poor who are financially crippled by the fines incurred for additional births

Moreover this policy punishes the children of the poor because they are more likely to be kept

hidden from the state and thus will not have access to health care and the education they need to

climb out of poverty In this way social disparity is further perpetuated within the existing

framework

Another adverse byproduct of Chinas 30-year-old family planning policy is the gender

imbalance that is now manifested most clearly among those of marrying age The British

Medical Journal claimed that in 2005 there were 32 million more males than females (under the

age of 20) in China23

Even though China banned prenatal sex screening in 199424

illegal

ultrasound tests allow prospective parents to choose the gender they prefer for their only child

19

httpwwwdailymailcouknewsarticle-1322601China-forces-woman-abortion-EIGHT-months-breaching-

child-policyhtml 20

Ibid 21

httpwwwwomensrightswithoutfrontiersorgblogp=429 22

―Has Chinas one-child policy worked httpnewsbbccouk2hiasia-pacific7000931stm 23

British Medical Journal BMJ 2009 338b1211 httpwwwbmjcomcontent338bmjb1211full 24

―A Brief History of Chinas One-Child Policy httpwwwtimecomtimeworldarticle08599191286100html

UNHRC 9 of 44

creating a massive imbalance This imbalance will lead to drastic results in the next few years an

implication the committee needs to take in account when establishing a framework for

responding to the issue

The Human Rights Council conducted a Universal Periodic Review of China in 200925

to much

international consternation and surprise the report lacked substantial evidence implicating

China and was instead found to be extremely vague The role of the United Nations in defining

and drawing attention to the issue is of key significance and the Human Rights Council must

make recommendations on how the United Nations can enhance its capacity in laying the

foundations for the case The Council can also make recommendations regarding the changes

that can be brought about in the conduct of the Review and otherwise in order to be able to

contain the issue with lesser difficulty

The committee will be called upon to review reproductive rights in detail including the implicit

and explicit consequences on the people of China Access to reproductive healthcare is a

problem the world over and is often consciously violated by states Is there a way to control

these violations perhaps through devising enhanced monitoring strategies

The Case of Internet Censorship in China and the Right to Free Speech

Everyone has the right to freedom of opinion and expression this right includes freedom to hold

opinions without interference and to seek receive and impart information and ideas through any

media and regardless of frontiers26

- Article 19 Universal Declaration of Human Rights

Everyone shall have the right to freedom of expression this right shall include freedom to seek

receive and impart information and ideas of all kinds regardless of frontiers either orally in

writing or in print in the form of art or through any other media of his choice 27

- Article 19 (2) International Covenant on Civil and

Political Rights

The Peoplelsquos Republic of China along with being the most populous region of the world is also

home to the worldlsquos largest collection of internet users According to Xinhua Chinalsquos state-run

English news agency Chinalsquos internet user ship exceeded 500 million users as of September

201128

China is also the worldlsquos largest media market However despite these impressive

statistics it is both interesting and disturbing to note that the Republic is also remarkable for its

25

httplibohchrorgHRBodiesUPRDocumentsSession4CNA_HRC_WG6_4_CHN_3_Epdf 26

httpwwwohchrorgENUDHRDocumentsUDHR_Translationsengpdf The Universal Declaration of Human

Rights 27

httpwww2ohchrorgenglishlawpdfccprpdf The International Covenant on Civil and Political Rights 28

httpnewsxinhuanetcomenglish2010china2011-0929c_131167919htm

UNHRC 10 of 44

censorship history About a dozen government bodies control internet usage including the

Ministry of Public Security29

It has been noted that while the Chinese advertising industry is

booming this freedom does not extend to editorial content of newspapers30

This phenomenon of

Chinese censorship has been labeled in the mainstream global media as the Great Firewall of

China The Firewall serves to filter both the information coming into China as well as

information generated within the nation It is beyond being a clever pun a matter of concern for

the committee because of its repressive characteristic The State imposes such extreme

restrictions of freedom of information under the premise of protection of its nationalistic

interests However its negative connotation is much obvious and its resemblance to Orwelllsquos

Ministry of Truth and the notion of thought control is uncanny The Peoplelsquos Republic has signed

(not ratified) the International Covenant on Civil and Political Rights The committee can look

into the reasons behind this as well as assess current global membership to the covenant

Chinalsquos Internet censorship is centered on the control of political thought The Measures on the

Administration of Internet Information Services and the Provisions on the Administration of

Internet News and Information Services are the two main instruments used to do so31

Section 19

of the latter deserves special attention and casts its scope to prohibit activities that disrupt

―national policies on religion propagating evil cults and feudal superstitions jeopardize ―the

security of the nation harm ―integrity of the nationlsquos unity or ―the honor or the interests of the

nation among other things32

Regulations are so stringent that in 2008 only eight websites out

of a total of 430000 in Guangdong Province ndash Chinalsquos most populous region -- were able to

obtain news publication qualifications permits33

The Internet news and information services entities engaging in Internet news and information

services shall abide by the Constitution laws and regulations by persisting in providing service

for the people and serving socialism and guiding public opinion to protect the interests of the

nation and the public

- Article 3 Provisions on the Administration of Internet News and Information Services

The national report submitted by China to the Working Group for the Universal Periodic Review

in 2009 exhibited the governmentlsquos opinion that ―with such easy fast and diverse ways of

gaining access to information and expressing opinion including criticism of the Government

Chinese citizens are enjoying an entirely new lifestyle34

According to a white paper published

29

httpwwwhrworgreports2006china08063htm_ftnref28 30

httpnewsbbccouk2hiafricacountry_profiles1287798stm 31

httpwwwhrichinaorgcrfarticle3244 32

httpwwwchinaitlaworgp1=printampp2=051006175116 Provisions on the Administration of Internet News and

Information Services

Please peruse the following httpwwwhrworgreports2006china08063htm for commentary on the Provisions 33

Ibid 34

httplibohchrorgHRBodiesUPRDocumentsSession4CNA_HRC_WG6_4_CHN_1_Epdf

UNHRC 11 of 44

in 2008 by the Information Office of the State Council the internet is a ―crystallization of human

wisdom and ―Chinese citizens fully enjoy freedom of speech on the internet 35

Chinalsquos policies have relevance beyond

their contravention of what may seem to be

abstract principles China has jailed the

largest number of internet dissidents the

world over The case of Liu Shaokun for

example is a notable one He was a

teacher in Sichuan province which had

been hit in 2008 by a ravaging earthquake

around the time of the Summer Olympics

in Beijing China had been praised for

allowing reporters to openly cover the

earthquake Much of this openness however was part of a bid to soothe the international

community and project Beijinglsquos image as being the perfect venue for the Olympics Shaokun

however was sentenced to a year of labor for posting photographs of schools affected by the

earthquake He is among countless others who have been silenced36

When the Arab Spring flowered over the Middle East China cracked down on many social

networking sites to curb pro-democracy sentiments Amongst these was LinkedIn blocked over

the fact that one of its users had mentioned the possibility of a ―Jasmine Revolution in China37

The government blocks discussions about the Dalai Lama the Tiananmen Square protests and

the Falun Gong spiritual movement among other things In April of 2007 the Chinese version of

MySpace launched but lacked discussion forums centered on the aforementioned topics among

others including Taiwanlsquos independence In 2010 Google considered withdrawing its services

from China after a spur of cyber-attacks on email accounts of human rights activists 38

Google

and the government reached a deal whereby Google operated by Chinese guidelines within

mainland China However Google has a non-censored operation running in Hong Kong to

which it started routing customers in 2010 when it had concerns over Google accounts being

hacked by authorities It is testament to Chinese control that companies such as Google are

forced to enter the internet market on its terms Other instances of well renowned internet

websites being blocked or affronted include Twitter being banned during the 20th

anniversary of

the Tiananmen killings

The Committee to Protect Journalists ranks China as one of the worst internet censors The

Chinese government has been alleged of carrying out ―spear-phishing whereby spying software

disguised as legitimate emails is installed on computers that belong invariably to journalists

35

httpchinaorgcngovernmentwhitepapernode_7093508htm 36

httpcpjorgreports201012cpj-journalist-prison-census-iran-china-highest-14-yearsphp 37

httpwwwbbccouknewstechnology-12586462 38

httpnewsbbccouk2hi8460129stm Please look at this link for a timeline of Chinalsquos internet history

UNHRC 12 of 44

Victims included those writing about Liu Xiaobo the imprisoned human rights defender who

received the Nobel Peace Prize in 201039

According to statistics over 80 of Chinas netizens rely mainly on the Internet for news 40

With this state of affairs and increasing dependence the world over on the internet as a major

source of information discussing information monopolies is crucial To isolate a country of over

a billion and deny it access to information in the age of technology may not seem a palpable

physical or otherwise contravention of human rights however its consequences are

tremendous While one may think that media censorship is restricted to dictatorial regimes the

case of China serves to refute that line of thought Media censorship is prevalent even in

countries as varied as Indonesia India Mexico and Russia ndash all of whom rank relatively low on

the Press Freedom Index41

Looking at instances worldwide and the justifications given for

restricting rights will be a useful direction to take while researching

The following website is a useful tool to check the status of websites in China

httpwwwgreatfirewallofchinaorg

Political Prisoners in China and Illegal Detention

Political prisoners are those whose imprisonment is carried out arbitrarily on contestable and

controversial grounds Governments detain certain individuals on the basis of allegedly valid

grounds which are not always disclosed or declared Many detainees charge existence of ulterior

motives or extrajudicial reasons on part of the state for their detention The phenomenon of

political prisoners is often associated with closed regimes such as Burma and the DPRK

However the Peoplelsquos Republic of China too does not escape scrutiny when the topic of political

prisoners is at hand The phenomenon of political prisoners resonates so loudly in the

international spheres particularly because governments deny the existence of political prisoners

they claim that all detainees are lawfully held under criminal law The unfair detainment of

persons or the capture of people to serve the interests of a government contravenes many human

rights including freedom of expression association and assembly Indeed a countrylsquos political

imprisonment record is one of the crucial indicators of its human rights situation

Amnesty International views political prisoners as prisoners of conscience These are more

specifically ―people who have been jailed because of their political religious or other

conscientiously-held beliefs ethnic origin sex color language national or social origin

economic status birth sexual orientation or other status42

39

httpwwwcpjorgreports201105the-10-tools-of-online-oppressorsphp 40

httpchinaorgcngovernmentwhitepapernode_7093508htm 41

httpenrsforgpress-freedom-index-20101034html 42

httpwwwamnestyusaorgour-workissuesprisoners-and-people-at-riskprisoners-of-conscience

UNHRC 13 of 44

According to the (US) Congressional Executive Commission on China over 5000 cases of

politically or religiously motivated imprisonments have been made It has detailed documented

information on the status of 1452 of these prisoners and

notes that its information is far from complete and that the

true story of Chinalsquos political prisoners remains unknown 43

The plight of political prisoners in China is speculated upon

by various international organizations Among these is the

Human Rights Watch which has gone as far as labeling the

locations for holding political prisoners ―black jails and

―alleyways in hell Officially though the Chinese

government denies the existence of political prisoners Subsequent to Chinalsquos Universal Periodic

Review an outcome report was published which came under fire from various sides The Human

Rights Watch called the substance of the report to be ―manifestly so far removed from reality

that [it] would immediately discredit anybody that adopted them in a report 44

In the report of

the UNHRC Working Group subsequent to Chinalsquos UPR it is stated that the Chinese

government does not use ―state secrets to suppress human rights defenders 45

It is precisely this

situation that our simulation wishes to remedy discussion should be fact based

The ground realities are different In 2010 Chinese activist and human rights defender Mr Liu

Xiaobo was awarded the Nobel Peace Prize He was jailed by Chinese authorities for

distributing his ―Charter 08 a document that called for freedom of expression and of assembly

among other things The government incarcerated him for an 11 year time-period on the charge

of subversion Subsequent to the prize the Chinese government came down hard on other human

rights activists Indeed those celebrating the awarding of the prize to Mr Xiaobo were arrested

arbitrarily While distributing fliers celebrating the win many were imprisoned on the grounds of

―inciting subversion of state power The Report of the Special Rapporteur on the situation of

human rights defenders published in 2011 makes mention of these facts46

The Chinese

government labeled the award an ―obscenity It is vague allegations such as these that allow

governments to thwart dissidents As expected though according to the report of the HRC

Working Group No individual or press has been penalized for voicing their opinions or

views47

When discussing China and political prisoners it is important to mention the Falun Gong

movement It is a spiritual variant of Buddhism and originated in China on the basis of the

teachings of its founder Li Hongzhi The movement was supported within the Chinese

43

httpwwwceccgovpagesvictims20101010_PPD_AR10pdfPHPSESSID=705596c0e91f35e392e6f0ecbb78d6

7c 44

httpwwwhrworgennews20090610human-rights-watch-statement-upr-outcome-report-china 45

httpdaccess-dds-nyunorgdocUNDOCGENG0916299PDFG0916299pdfOpenElement 46

httpwww2ohchrorgenglishissuesdefendersdocsAHRC1644Add1_EFSonlypdf Page 63 47

httpdaccess-dds-nyunorgdocUNDOCGENG0916299PDFG0916299pdfOpenElement Para 71

UNHRC 14 of 44

officialdom initially However Falun Gonglsquos popularity within the masses as well as its

independence from the state and its spiritual teachings was soon perceived as a threat to the

government By the late 1990lsquos the Chinese government cracked down on the movement and

labeled it as a heretical organization Chinese legislation uses the expression ―Xiejiao zuzhi to

refer to a wide range of sectarian or unorthodox religious groups which do not meet official

approval The Falun Gong movement is included in this list48

The Falun Gong followers are the

worldlsquos largest group of prisoners of conscience The PRC often picks up practitioners and

accuses them of ―using an evil cult to destroy implementation of the law 49

China with its strict non-religious government did not take kindly to this new movement that

had garnered millions of followers both within China and internationally between 1992 and the

crackdown in 1999 Today Falun Gong is practiced freely in more than 70 countries around the

world with clubs and associations existing in a range of settings50

Beginning at the turn of the

millennium the authorities started to ban access to websites that contained material about the

movement Indeed a search on the movement on Chinalsquos Xinhua News Agency website will

even today yield nothing (It may be an interesting experiment for delegates to conduct) Those

who reported the initial crackdown were ―followed detained interrogated and threatened

according to a letter written in 1999 by The Foreign Correspondents Club (FCC) of China51

The Falun Gong movementlsquos official website deals with its persecution thus The complex

rationale behind the persecution can be broken into four elements a paranoid dictators fear of

Falun Gongs meteoric growth and soaring popularity that same dictators intense jealousy of

Falun Dafas popularity the inherent conflict between the communist regimes savage political

ideology and its polar oppositemdashFalun Dafas principles of Truthfulness Benevolence

Forbearance and the very nature of communism which to sustain itself requires periodically

labeling a small segment of the population as the class enemy to struggle against52

The Chinese crackdown on Falun Gong practitioners involved a ban on practicing it by the

Chinese Communist Party whose members as aforementioned were interestingly initially

adherents to the movement in significant numbers Indeed the party was divided from within

over their stance on the movement The government formulated an ―anti-cult law a few months

after issuing a warrant for the founderlsquos arrest ―During the first two years of the crackdown

between 150 and 450 group leaders and other members were tried for various crimes and

sentenced to prison terms of up to 18-20 years53

To this day ―central leaders turn a blind eye to

48

httpwwwamnestyorgenlibraryassetASA170112000en7a361a8e-df70-11dd-acaa-

7d9091d4638fasa170112000enhtml 49

httpwww2ohchrorgenglishissuesdefendersdocsAHRC1644Add1_EFSonlypdf 50

httpwwwfaluninfonettopic22 51

httpwwwamnestyorgenlibraryassetASA170112000en7a361a8e-df70-11dd-acaa-

7d9091d4638fasa170112000enhtml 52

httpwwwfalundafaorgengfaqshtmlpersecution 53

httpfpcstategovdocumentsorganization67820pdf Page 4

UNHRC 15 of 44

local methods of suppression against unrepentant practitioners including the reported use of

torture54

Also worth noting is the fact that Chinalsquos judicial system has been alleged to be anything but

conducive to providing justice to those using the system Indeed it is a repressive tool used by

the government to silence dissent China with its vast land mass and various provinces and

municipalities must work hard to keep its Centre strong Scores of individuals who are more

obscure than human rights activists and such are imprisoned by the government while ironically

seeking justice It has long been the custom for people of the countryside to seek justice in

Beijing if they felt that their local authorities had treated them unfairly However modern China

has not taken kindly to this tradition Local authorities are evaluated on the basis of the number

of complaints the Centre receives about them Thus they have a vested interest in thwarting the

reports of any complaints about them to Beijing Those who complain are whisked off to black

jails where ―detainees are denied access to legal counsel and in most cases contact with family

and friends They ―are kept under constant surveillance and subject to often arbitrary physical

and psychological abuse55

Chinalsquos record with regard to political prisoners and its tradition of suppressing dissent are

exacerbated by the sheer scale on which dissent is thwarted The aspect of potential torture of

prisoners further complicates the issue It is troubling that the issue of Chinese political prisoners

only gained international prominence with the case of Mr Liu Xiaobo It is not the only nation in

the world to adopt such strict policies in order to further its own ideology and the committee will

do well to ruminate upon how this tradition can be discontinued so as to allow people their

essential political freedoms

The Infringement of Rights in the Conflict with Tibet

Despite the furor that has been inconsistently directed towards its human rights record China

continues to impose tightening restrictions on rights of expression association and assembly

The Chinese government carries on devising social and economic changes that retain its firm

authority over its citizens which in turn enables a host of human rights violations In the context

of Tibet China has failed to address the grievances of the people there who have been made

victims of social discrimination and have unequal access to opportunities Scores of Tibetans are

marginalized and detained for their religious inclinations which are further suppressed by the

imposition of intense patriotic educationlsquo campaigns whereby socialism is furthered and all sorts

of religious or individualistic tendencies are thwarted

54

Ibid Page 5 55

httpwwwhrworgreports20091112alleyway-hell-0 Page 4

UNHRC 16 of 44

Despite its totalitarian approach China refuses to accept responsibility for the issue Instead it

blames westernlsquo forces for trying to instigate separatism56

The indifference on the part of

China with particular regard to Tibet is apparent with Chinese authoritieslsquo continuous rejection

of ―inconvenient requests by UN human rights experts for visits to the Tibet Autonomous

Region57

During 1912 and 1951 Tibet underwent a period of de facto independence58

While it was still

territorially a part of China it enjoyed relative freedom in its political discourse Tibetan

autonomy was confined within the context of Chinese suzerainty and should not be interpreted

as unrestrained political independence Since 1951 however the Chinese government has taken

steps to ensure its absolute and undeniable dominance over Tibet from which emanates the strife

under discussion Gross violations of human rights have taken place in China administered by

officials with the purpose of cultivating consent with regard to its control over the region

Suppression has led to the inevitable extensive discontent in Tibet a fury which was unleashed

in 2008 The Tibetan unrest of 2008 was a series of protests and demonstrations - not merely in

the Tibet Autonomous Region but elsewhere as well - that later transformed into rioting burning

looting and even killing59

The rioters set fire to state vehicles and clashed violently with the

police installed in the region The crackdown of Chinese authorities in response to the riots was

severe resulting in deaths on both sides and mass imprisonment by state authorities The degree

to which human rights were violated and abused during this crackdown cannot be overstated

The Chinese also revoked the freedom of sharing of information and imposed a ban on the entry

of media officials in the region to contain

information about the unrest and play down

protests60

A Tibetan Government in Exile has existed in India

since 1959 established by the 14th

Dalai Lama61

This Central Tibetan Administration considers the

issue as an illegitimate military occupation by the

Chinese state The Administration works with the

agendas of restoration of freedom in Tibet and rehabilitation of Tibetan refugees

Historical facts refute such a fallacy however The simple reality that the installation of the 14th Dalai Lama

needed the approval of the national government is sufficient proof that Tibet did not possess any independent power

during that period ndash (httpwwwchinaorgcne-whitetibet9-2htm)

56

httpwwwunhcrorgrefworldcountryAMNESTYCHN49b8dfc11a0html 57

Ibid 58

Grunfeld A Tom Reassessing Tibet Policy 2000 59

httpwwwnytimescom20080316worldasia16iht-tibet111134870html 60

Watts Jonathan Branigan Tania (March 18 2008) Tension rises as armed police mass in capital The

Guardian (London) Retrieved November 1 2011 61

httpwwwtibetnetenindexphpid=14

UNHRC 17 of 44

The censured freedom of expression is one of the multiple infringements on rights that are

imposed by China on Tibet Tibetans are denied the basic right to articulate their views through

political discourse Human rights activists advocate the freedom of speech for Tibetans under the

existing and future political arrangements Religious and political figures in Tibet are placed

under house arrest limiting their freedom of movement (in contradiction to article 13 of the

Universal Declaration of Human Rights)62

As was highlighted during the unrest in 2008 China

has often stripped the Tibetan population of its fundamental rights to associate and assemble In

2000 nine Tibetan prisoners in Kandze were charged for participating in a peaceful protest to

five-year prison terms in October 1999 (which were later increased to ten-year terms)63

This example leads us to another crop of abuse conducted overtly by Chinese authorities

arbitrary detention Article 9 of the Universal Declaration of Human Rights reads ―No one shall

be subjected to arbitrary arrest detention or exile64

Chinese law however permits authorities

to detain persons without formally arresting or charging them and persons may be sentenced

administratively to up to 3 years in reeducation-through-labor camps and other similar facilities

without a trial

Chinese authorities have been unresponsive to concerns expressed by the United Nations

Working Group on Arbitrary Detention No counter-explanation was given either over the case

of three Tibetans who had their sentences extended for staging a peaceful political protest during

the Working Groups visit to Drapchi in October 1997 despite international pressure65

Infinite

examples of arbitrary arrests and detentions exist in China international authorities have called

on China to cease this practice and release such detainees immediately absent evidence that they

have engaged in criminal acts No state can or should be able to hold anyone for engaging in

peaceful political activity All humans

should be granted internationally recognized

due-process protections which includes the

right to be informed of the charges leveled

against them66

The question of whether

these detainees are given an impartial trial if

one at all is not even raised

In addition to the arrests carried out in

violation of international law there are

grave evidences of abuses during detention

62

httpwwwhrworgnews20000612human-rights-violations-tibet 63

Ibid 64

httpwwwunorgendocumentsudhr 65

httpwwwhrworgnews20000612human-rights-violations-tibet 66

httpwwwhrworgnews20000612human-rights-violations-tibet

UNHRC 18 of 44

Incidences of beatings at time of arrest and torture (including the administration of electric

shocks and deprivation of food and medical treatment)67

during custody are widely reported

These are not isolated cases rather the product of a holistic policy of dealing with political

dissidents In one notable incident in May 1998 political prisoners in Drapchi staged major

protests to coincide with a visit from a European Union delegation The protests were non-

violent but the authorities reaction was severe several protestors were shot at and one monk

Lobsang Gelek subsequently died68

The Convention Against Torture (CAT ratified by China in 1988) requires the state to prevent

torture and punish those in violation of the law China has not amended its own laws to comply

with even the first article of CAT69

Such practices explicitly stand in contempt of Article 5 of

the Universal Declaration of Rights which censures the use of torture or cruel treatment as

punishment Dr Manfred Nowak the UN Special Rapporteur on Torture stated that ―he was

struck by the strictness of prison discipline and a palpable level of fear and self-censorship when

talking to detainees following his brief assessment of Chinese and Tibetan prisons in 200570

The committee will be looked upon to review ways in which the situation can be monitored more

carefully and what responses if any can be cultivated to impede similar future actions by

China

The continued violations of religious freedom and implementation of policies designed to

diminish religious practices by the State to serve its political needs is a cause of concern Again

referring to the Universal Declaration of Human Rights Article 18 reads ―Everyone has the right

to freedom ofhellipreligion this right includes freedomhellipto manifest his religion or belief in

teaching practice worship and observance71

The policies implemented by Chinese authorities

through use of coercion violent repression and imprisonment impinge upon the freedom of

Tibetans to practice their religion freely China has also strictly enforced re-education programs

for dissident factors within the state The program is aimed at ―combating separatism protecting

stability and promoting development and is intended to reform the political ideology of people

who refuse to accept state control of what they perceive as vital aspects of their religious lives

and beliefs The committee will be expected to deliberate upon the protection of religious

freedom and practices of individuals as well as the validity of these re-education programs in

light of human rights and liberties

Tibet is not the only region where political tensions surrounding autonomy run high The

Kosovo-Serbian conflict is pertinent to recall The Republic of Kosovo declared itself to be an

independent entity on February 17 2008 As of 11 October 2011 85 UN states recognize the

independence of Kosovo However Serbia maintains that Kosovo is a UN governed entity under

67

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 68

httpwwwfreetibetorgabouttorture 69

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 70

Ibid 71

httpwwwunorgendocumentsudhr

UNHRC 19 of 44

its sovereignty Russia and China are among those who do not recognize the Republic while the

USA UK and France have recognized Kosovolsquos declaration of independence This highlights the

rift between the United Nations Security Council over the issue The case of Tibet is all the more

important in light of the fact that many such pockets exist in the world struggling for self-

determination

Media Links

httpwwwfreetibetorgnewsmedia2008-protests-summary

httpwwwguardiancoukworldgallery2008mar19tibetchinapicture=333178281ampindex=7

Chinarsquos Violation of Ethnic Minority Rights

One of the greatest blemishes on Chinalsquos human rights record is in the area of ethnic minorities

and the extent to which China protects ethnic minority rights On paper Chinalsquos policies are

based on ethnic equality and regional ethnic autonomy Ethnic minorities are supposed to be

benefitting from preferential policies in the political economic cultural and educational spheres

However the ground realities are infinitely different Questions have been raised over the extent

to which the government fairly provides services to these minorities and allocates resources

equally to them The Chinese government is seen to largely prefer its Han majority The

minorities claim they are exploited for their resources and in turn not even provided with the

same level of social services as the Han people China is an atheistic government and the fact

that many ethnicities garner their identity in major part from their religious affiliation leads to a

precarious situation The Mongols Tibetans and Uighurs all come to mind when discussing the

issue of China and ethnic minority rights

―Everyone is entitled to all the rights and freedoms set forth in this Declaration without

distinction of any kind such as race colour sex language religion political or other opinion

national or social origin property birth or other status Furthermore no distinction shall be

made on the basis of the political jurisdictional or international status of the country or

territory to which a person belongs whether it be independent trust non-self-governing or

under any other limitation of sovereignty

- Article 2 Universal Declaration of Human Rights

The International Convention on the Elimination of Racial Discrimination defines racial

discrimination as any distinction exclusion restriction or preference based on race colour

descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the

recognition enjoyment or exercise on an equal footing of human rights and fundamental

UNHRC 20 of 44

freedoms in the political economic social cultural or any other field of public life72

It is due to

this that the international community has adopted the norm of subsuming ethnicity under the

terminology of race

―The Peoples Republic of China is a united multi-ethnic country So far 56 ethnic groups have

been identified and recognized by the central government The population of various ethnic

groups differs greatly While the Han ethnic group has the largest population and that of the

other 55 ethnic groups is relatively small so they are customarily referred to as ethnic

minoritieslsquo According to the fifth national census conducted in 2000 the population of all the

55 ethnic minority groups totaled 10449 million accounting for 841 percent of the total

population of China73

Chinas official 55 minorities are located primarily in the south west

and north of China Only Tibet and Xinjiang have a majority population of official minorities

while all other provinces municipalities and regions of China have a Han majority

One of Chinalsquos autonomous regions is the Xinjiang Uighur Autonomous Region (XUAR)

located in western China The area is vast accounting for one sixth of Chinalsquos land and houses

around 13 major ethnicities including the Uighurs who are a predominantly Muslim people with

origins in Central Asia The Uighurs have had strained ties with the state and have often resisted

Chinese authority74

In turn the Chinese government has reacted sometimes violently against

restless factions in the region One of the most passive aggressive forms of response on the part

of the Peoplelsquos Republic has been the encouragement of the migration of the Han people ndash

Chinalsquos ethnic majority ndash to the XUAR75

Around 90 of Xinjiangs population comprised of

Uighurs in 1949 now it is estimated that Uighurs make up only about 45 of the population76

The policies in Xinjiang are said to be designed to ―promote economic development not

demographic change In reality though the influx of migrants has amplified Uighur discontent

as Han and Uighurs compete over limited jobs and natural resources77

The United Stateslsquo

Congressional-Executive Commission on China reported that in 2006 the XPCC (Xinjiang

Production and Construction Core) reserved approximately 800 of 840 civil servant job openings

for Han Chinese78

One of the causes of the Han monopoly in the employment sector is the

linguistic advantage afforded to them and perpetuated by the education system As part of its

efforts to implicitly impose a unified culture the language policy was altered by the state with

an increased focus on use of Mandarin in schools at the expense of the local languages

Methods of education special to the ethnic peoples of the XUAR including the Muslim Uighurs

are suppressed For example a campaign by the PRC in 2001 targeted religious teachers and

72

httpwww2ohchrorgenglishlawcerdhtm 73

httpenglishgovcnofficial2005-0728content_18127htm 74

httpwwwcfrorgchinaeast-turkestan-islamic-movement-etimp9179 75

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p8 76

httpnewsbbccouk2hiasia-pacific3330803stm 77

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p4 78

httpwwwcolumbiaeducunewsclips20080801UighursTWPOSTpdf

UNHRC 21 of 44

endeavored to sever ties between mosques and groups involved in allegedly ―separatist

activities Around 8000 imams were required to undergo ―political reeducation in this regard

and become ―patriotic religious personalities Ethnic minorities are educated in ways that do not

allow them to learn their own languages or practice their own religion In 2001 for example a

Muslim girl was expelled from school for praying 79

Moreover in an attempt to further its socialist agenda and bind ethnic minorities together

minority cultural activities are often hindered In its place nationalistic values are given a

premium and integrated into society so as to tie the entire country in a unified Chinese foldlsquo

Resultantly an asymmetry with regards to the provision of services and protection of cultural

identity can be found in almost every ethnic minority region in the country The repression

against minorities has wider implications on the human rights situation for all This leads to

creation of a vindictive attitude among the minorities not only against the government but also

the Han majority

In July 2009 this attitude manifested itself in

the form of severe riots between the Han and

Uighur communities in Xinjianglsquos capital city

Urumqi Ethnic tensions elevated to the point

that police involvement was made necessary

According to Chinese state media at least 150

people were killed and more than 800 were

injured The riots were reportedly sparked by a

Uighur protest over the ethnically motivated

killing of two Uighur workers in the southern

province of Guangdong

On the topic of allegations of separatism it is interesting to note that post 911 it has been noted

that the Chinese government has used concerns about terrorism as a method for suppressing

ethnic activity This is possible through the characterization of certain ethnicities as having

fundamental leanings The Muslim Uighurs fell under fire for this very reason after the

September 2001 attacks

One of the ways that the Chinese government with its Han leanings has asserted its presence in

the region is through the smokescreen of the XPCC The Peoplelsquos Liberation Army and the

XPCC are present in the region per the government to ―consolidate border defense accelerate

79

wwwminorityrightsorgdownloadphpid=29 Page 30

UNHRC 22 of 44

Xinjianglsquos development and reduce the economic burden on local governments and the local

people of all ethnic groups80

The heavy militarization of ethnic minority

regions also enables the Chinese government

to quickly respond to skirmishes between the

minorities and the Han For example clashes

between the Uighurs and the Han in the

XUAR are quickly clamped down upon The

response by Chinese authorities always

focuses on the minority groups in the region

The typical response includes a period of

strike hardlsquo security measures during which the minorities are subjected to police patrols of

crowded areas identity checks street searches increased criminal investigations and accelerated

trials The measures also include mandatory political indoctrination classes for the Uighur

population Swift Chinese response to ethnic dissidence precludes the possibility of trying

protestersrioters under due process This phenomenon also contributes to the controversy of

China and its policy of arbitrary imprisonment

Essential to any countrylsquos social progress is the protection and provision of the basic rights to all

its citizens For a country like China which has a significant standing in the international

community the degree to which human rights are upheld comes under added scrutiny Minorities

need to be guaranteed provision of not only fundamental rights but additional ones that grant

them equal opportunities

Recent Developments

3 November 2010 UN Secretary General pushes China on human rights

Ban Ki-moon the United Nations secretary general has called on China to respect human rights

after critics accused him of dodging the issue on a trip to Beijing The UN secretary general met

Hu Jintao the Chinese president but failed to challenge Mr Hu on the imprisonment of Liu

Xiaobo the democracy activist who was awarded this years Nobel Peace prize and raise the

issue of human rights81

80

httpwwwchinaorgcne-white200305269htm 81

httpwwwtelegraphcouknewsworldnewsasiachina8107148UN-Secretary-General-pushes-China-on-human-

rightshtml

UNHRC 23 of 44

5 November 2011 Yeqing Ji from Shanghai China will most likely not be able to have children

after she said two forced abortions physically impaired her uterus82

8 September 2011 The Chinese government has renewed Googlelsquos license to allow it to

continue operating its local website in the country83

13 November 2011 Seven months ago

Chinese police detained the countrylsquos most prominent artist Ai Weiwei at the airport and drove

him to a hidden location It was the beginning of what is to be a two-and-a-half month nightmare

for the architect and sculptor who is also a former darling of the Communist Party who later

turned into an outspoken government critic Ai was held on vague charges of economic crimes

was kept in isolation and subjected to Kafka-esque interrogations84

April 19 2011 Amnesty International a 21-year-old monk Phuntsog set himself on fire in an

apparent anti-government protest in March 2011 Instead of putting out the flames Chinese

police beat the young monk creating huge resentment in the monastery85

At least 11 ethnic

Tibetans have been detained for protesting against the event and against government policies

They are at risk of torture and other ill-treatment86

29 May 2011 300 Tibetan monks detained in Kirti monastery by Chinese security forces87

15 September 2011 Chinese Uighurs economic fears

Amid ethnic tensions minority regards modernization plans in Xinjiang as favoring Han Chinese

migrants88

20 November 2011 Another of Chinalsquos minorities the Hui Muslims in Ningxia do not feel

stigmatized

―There is an important reason why Hui and Han Chinese get along with each other Unlike

Muslims of the other ethnic minorities like Uighur Kazakh Kyrgyz and Tajik the Hui Muslims

speak Mandarin just like the Hans89

82

httpabcnewsgocomBusinesswoman-china-forced-abortions-leaves-unable-

childrenstoryid=14880884Tsia7LIk6so 83

httpwwwbbccouknewsbusiness-14832392 84

httpwwwthedailybeastcomnewsweek20111113ai-weiwei-speaks-out-on-his-detentionhtml 85

httphradvorgaggregatorsources10 86

httpwwwamnestyorgenlibraryassetASA170212011end75f7611-be66-4d5a-9391-

c80c43501d56asa170212011enhtml 87

httphumanrightshouseorgArticles16503html 88

httpwwwaljazeeracomvideoasia20110920119158016969449html 89

httpwwwtodayszamancomnews-263322-chinas-hui-muslims-do-not-feel-stigmatizedhtml

UNHRC 24 of 44

Conclusion

The United Nations Human Rights Council at LUMUN 2012 will be looked upon to provide a

framework for the resolution of these issues in a universal context The scope of the issues

should be expanded and applied to countries other than China The committee will have to make

recommendations which have universal application and resolve all aspects of the issue

comprehensively For any queries related to the study guide please do contact either (or both)

the committee directors at the given addresses

UNHRC 25 of 44

Topic Area B Abolishing the Death Penalty

Introduction to the Topic Area

The death penalty is formally defined as the execution of an offender sentenced to death after

conviction by a court of law of a criminal offenselsquo90

The concept of a capital crime is subjective

and states have made use of this practice in response to multiple forms of crime The use of the

death penalty has produced much controversy with regard to its apparent violation of

fundamental human rights as delineated in the Universal Declaration of Human Rights and

subsequent human rights charters and treaties It is asserted that the use of death penalty is in

contravention to the peopleslsquo right to life promised to every individual under Article 3 of the

Declaration91

Moreover Article 2 of the Charter of Fundamental Rights of the European Union

lucidly bars the imposition of death penalty as a form of punishment92

Arguments against the

use of death penalty are also made on the grounds of inhumane methods which are employed to

see out the process Historically multiple methods have been used which include death by

hanging severing of the head lethal injection shooting and electrocution93

94

As a response states have made keen efforts to abolish

the death penalty particularly in the last two decades as

can be interpreted from the graph on the right which

represents the number of states that have abolished the

death penalty Countries belonging to the European

region with the exclusion of Russia and Belarus have

sought to revoke the use of the practice The death

penalty is most commonly seen to be a formal practice

in most of the developing countries The trend is

apparent in Latin America Africa and Asia

96 countries have formally abandoned the use of death penalty 58 countries allow the use95

Other states have abolished the penalty in practice but the laws remain in place for the

imposition of the penalty as a response to certain crimes The imposition of the death penalty has

90

httpwwwbritannicacomEBcheckedtopic93902capital-punishment 91

httpwwwunorgendocumentsudhr 92

httpwwweuroparleuropaeucharterpdftext_enpdf 93

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffle

re-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 94

httpwwwdeathpenaltyinfoorgmethods-execution 95

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf

Figure 1 (Drag to enlarge)

UNHRC 26 of 44

seen a decline over the recent years with a fall in the number of executions that take place

annually It would however be incorrect to assume that the practice is not prevalent or widely in

effect Amnesty International reported that at least 2024 new death sentences were imposed in 67

countries in 2010 Moreover there were at least 17833 people sentenced to death worldwide at

the end of 201096

Again these are minimum figures which are the safest that can be inferred

from the given research There were 527 known executions carried out in 2010 globally97

This

figure however does not include the number of executions that took place in China where

analysts believe that more than a thousand people were put to death in the past year

The statistics represent the number of people executed through capital punishment One way to

formally define capital punishment is to regard it as the state sanctioned killing of an individual

through a judicial process as a punishment for a crime (defined as a capital crime by the state)98

Capital punishment is the most obvious and prevalent manifestation of the death penalty It is

often perceived as a statelsquos right in order to preserve law and order against any individual who

engages in serious crimes that threaten other individuals or the state Those who advocate against

the use of capital punishment label it as a symptom of a culture of violence not a solution to

itlsquo99

The controversy surrounding the topic is based on the legal ethical and moral acceptability

of the statelsquos right to an individuallsquos life The debate entails several social and economic factors

some of which will be reviewed in closer detail in the relevant section of this guide

One of the most striking aspects related to the issue is the imposition of the capital punishment

on juveniles The sentencing of juveniles to death is in clear breach of international law The

morality and validity of such a practice is often called into question and has been put under

relentless scrutiny despite all of which the practice is still carried out in a number of countries

Historically the United States China and Iran have the worst records relating to juvenile death

sentences100

The study guide also includes a separate section for the case of juveniles in which

the legal and social aspects of the problems are detailed

As stated states have made use of the death penalty to punish crimes of varying natures The use

of the death penalty is reserved for only the most seriouslsquo crimes as put forth in international

law101

The notion of a capital crime however is a subjective one states that have doled out

death sentences have defined it differently In certain countries the death penalty is only used to

charge criminals accused of war crimes In other countries the penalty is reserved for crimes like

96

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf 97

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010 98

httpusersrcncommwooddeathpenhtml 99

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 100

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 101

httpwwwunorgdocumentsecosocdocs1995e1995-78htm

UNHRC 27 of 44

murder rape or even robbery States also use the death penalty against individuals who are guilty

of treason The issue however is that many states practicing the death penalty impose the

punishment even when the crimes do not meet the threshold for the aforementioned most

seriouslsquo crimes The ability of states to define what constitutes as a capital crime has led to states

abusing their powers as has been observed in the sentences ordained by military courts

Moreover even the radicals who make the argument of the punishment fitting the crime agree

that in many instances individuals have been executed for softlsquo crimes crimes that were

certainly not tantamount to charges of murder or crimes against humanity The issue of apparent

violations of human rights is further exacerbated in these instances The study guide will discuss

the universal crimes that have resulted in the awarding of the death penalty and examine the

issue further The committee will be expected to discuss the feasibility of drawing up an

international definition of crimes which in isolated instances perhaps may be appropriate for a

sentence like the death penalty

Another pertinent aspect surrounding the debate is that of extrajudicial killings The execution of

a person by state authorities without the authority of a judicial proceeding is termed as an

extrajudicial killing Many states have used extrajudicial killings to establish their authority and

order without having to wade through the legal process By doing so they have deprived scores

of people of their fundamental right to free and fair trials Governments have also employed this

tactic to exercise political aggression and to suppress dissent A particular point of concern is the

fact that some states have made use of these killings even when they have officially revoked the

imposition of the death penalty Extrajudicial killings are carried out persistently in many

countries ndash the list includes countries like Iran Iraq Israel Philippines102

Most recently the

killing of Anwar al-Awlaki and Samir Khan in Yemen by a sanctioned National Security Council

move by the USA was an example of states embarking on such paths to eliminate threats to

national securitylsquo103

102

Multiple citations for each country can be found in the second paragraph article titled Extrajudicial killinglsquo on

Wikipedia 103

httpwwwtelegraphcouknewsworldnewsbarackobama7564581Barack-Obama-orders-killing-of-US-cleric-

Anwar-al-Awlakihtml

UNHRC 28 of 44

Wrongful convictions lead many to believe in the inherent incapacity of the death penalty to

serve justice On September 21 2011 US citizen Troy Davis was executed in Georgia after

which seven of the nine witnesses who testified against him in the case that led to his execution

recounted or retracted their evidences A petition with nearly one million signatures was put

forth to reconsider his case it was rejected On the same day a 17 year old boy was publicly

hanged in Iran for killing a popular athlete his justification based on self-defense was ignored

Also on the same day a Pakistani national was executed in China on grounds of drug trafficking

an offence that does not often result in capital punishment The need for the resolution of this

issue is pressing and the committee needs to deal with all aspects of the problem in a

comprehensive and enduring manner104

Capital Punishment

In 2010 23 countries implemented capital punishment A total of 527 executions (plus the 1000+

carried out in China alone) were known to have taken place with Iran Yemen USA and North

Korea meting out a significant number of sentences105

The figure is lower than the records

computed for years past There are more states which are now abolitionist either in law or in

practice with regard to the imposition of the punishment Gabon was officially the last country

to rescind the practice while bills calling for an end to capital punishment have been presented

to parliaments in Lebanon Mali Mongolia and South Korea106

Renewed efforts are

104

httpwwwamnestyorgennews-and-updatesus-executes-death-row-prisoner-troy-davis-2011-09-21 105

httpwwwguardiancouknewsdatablog2011mar29death-penalty-countries-world 106

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010

UNHRC 29 of 44

simultaneously being made on the international front to implement laws against capital

punishment A third resolution establishing a moratorium on the use of death penalty passed the

UN General Assembly on December 21 2010107

Despite the increasing momentum towards an eventual elimination of the practice the number of

executions taking place annually is a cause of major concern Advocates of the death penalty

assert that the practice is an effective means of deterring crime in society Public executions are

often held in Iran Afghanistan and Palestine for example to demonstrate the fate awaiting

those who commit similar crimes108

Arguments are made on the grounds of justice that it is

proper and fair to take an eye for an eye and a life for a life and that some individuals deserve

it for the crimes they commit

Those opposing the practice question the morality of an action sanctioned by the state which

endorses deprivation of the right to life a fundamental human right under the Universal

Declaration of Human Rights109

There are inescapable flaws within legal systems which are

aggravated by discrimination prosecutorial misconduct and inadequate legal representation

Moreover the risk of executing the innocent can never be eliminated110

An alternative is

presented in the form of imprisonment for life without parole which results in a parallel debate

is imprisonment for life a viable surrogate to the practice of death penalty A thread from this

debate also relates to the economic feasibility of carrying out a death sentence as opposed to the

feasibility of imprisonment for life

Deterrence

Capital punishment is often propagated as an adequate approach in the deterrence and prevention

of crime The logic is that if murderers are sentenced to death potential murderers will think

twice before killing for fear of losing their own life The deterrence theory presumes that the

once the punishment for a certain crime is established the criminal by committing the crime

voluntarily assumes the risk of receiving the prescribed punishment for the crime Only when the

most severe punishment has been set will there be a possibility of an individual evaluating their

actions in light of the consequences111

107

httpwwwundemocracycomA-RES-62-149pdf 108

httpwwwamnestyorgennews-and-updatessharp-rise-public-executions-iran-executes-first-juvenile-

offenders-2011-2011-04-27 109

wwwunorgendocumentsudhr 110

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 111

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 30 of 44

The death penalty it is asserted ensures that convicted criminals do not offend again moreover

it is deemed to be a just penalty for atrocious crimes It is further alleged that many criminals

who are set free even after lengthy sentences regress and go on to commit heinous crimes

Therefore there should never be the possibility of a release clause112

The deterrence theory is modeled on the grounds of human psychology logic and rationale As a

professor of jurisprudence Ernest van den Haag PhD wrote ―Common sense lately bolstered

by statistics tells us that the death penalty will deter murder if anything can People fear nothing

more than death Therefore nothing will deter a criminal more than the fear of death These

statements were further validated by a US Supreme Court Justice who said on record that

Prima facie the penalty of death is likely to have a stronger effect as a deterrent to normal

human beings than any other form of punishmentlsquo113

Numerous studies have been conducted on

the subject with varying results One of the most established studies was conducted in USA

using a panel data set of over 3000 counties from 1977 to 1996 which concluded that on

average one death sentence resulted in 18 fewer murders114

Delegates will be expected to be

familiar with other similar studies

These studies are commonly refuted as not crediblelsquo by opponents of the capital punishment

who also deny the correlation between crime and death penalty as a fabricated relationship which

cannot be empirically established115116

A study of the relationship between capital punishment

and the incidence of murder was conducted for the UN in 1988 and updated in 2002 The

conclusion was ―The investigation has not provided scientific proof that executions have more

deterrent effect than life imprisonment It is unlikely that such evidence will ever come

Deterrence hypothesis finds no support in the survey117

Another counter-argument asserts that crime is still a persistent feature of the societies that

continue to award the death penalty while many of the abolitionist states enjoy low crime rates

This can be evidenced by comparing the crime rate in USA or Pakistan with that of Canada or

some European state In Canada for example the homicide rate per 100000 fell from a peak of

309 in 1975 the year before the abolition of the death penalty for murder to 241 in 1980 and

in 2003 27 years after abolition the homicide rate was 173 per 100000 44 per cent lower than

in 1975118

112

httpwwwdeathpenaltyinfoorgfacts-about-deterrence-and-death-penalty 113

httpdeathpenaltyproconorgviewresourcephpresourceID=002000 114

httpdeathpenaltyproconorgsourcefilesThe20Deterrent20Effect20of20Capital20Punishmentpdf ndash

Delegates should carefully examine certain parts of this document to establish the credibility of the assertions made

They should also invest in trying to locate studies that refute the assertions made in this and similar studies 115

httpwwwdeathpenaltyinfoorglaw-enforcement-views-deterrencelawenforcement 116

httpwwwdeathpenaltyinfoorgDonohueDeterpdf 117

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 118

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml

UNHRC 31 of 44

The lack of evidence on the production of a unique deterrent effect points to the danger of

relying on the deterrence hypothesis as a basis for public policy on the death penalty

Retribution amp Morality

An important terminology that delegates need to familiarize themselves with is that of

―retributivism119

It is defined as ―a policy of criminal justice that sponsors the punishment of

criminals in retribution for the harm they have inflicted120

Criminals deserve to be punished in

proportion to the gravity of their crime regardless of whether the victim or anyone else desires

it we may all deeply regret having to carry out the punishment but consider it warrantedlsquo is

what many say in defense of the theory121

The need for the establishment of a visibly just state arises from the potential risks of not having

one As has been visible in many developing countries with shaky legal systems when criminals

are not adequately punished for their unlawful behavior the public takes the law into its own

hands and deals out vigilante justice It is asserted that retributivism is essential for a functioning

society where individuals respect the supremacy of law

The concept of retribution in society is also grounded in religious beliefs The concept of an eye

for an eye has been a part of all three Abrahamic traditions However in the modern world it is

Islamic nations that still retain the practice based on these grounds Similar traditions can be

found in Hinduism Christianity and Buddhism as well as other religions in different parts of the

world In many non-secular countries the constitutions and state laws are derived from religious

doctrines

Opponents dismiss this aspect of the argument as being emotionally charged with little rational

logic to support the contention They claim that the establishment of capital punishment gives

birth to a culture of violence endorsed by the state It perpetuates the cycle of aggression and

brutality something which the state should be actively inhibiting not endorsing

Wrongful Convictions

The death penalty carries with it the danger of wrongfully convicting an innocent person for

crimes he did not commit There is the potential for capital punishment to evolve into sheer

miscarriage of justice as in certain circumstances states are often seen to rush the trials and

convict the accused hastily This practice takes foremost apparently in military courts often in

119

Cavadino M amp Dignan J (1997) The Penal System An Introduction (2nd ed) p 39 London Sage 120

httpdictionaryreferencecombrowseretributivism 121

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 32 of 44

the developing or lesser-developed countries where the system of law is not properly established

It is not however exclusive to these countries Examples can be drawn from countries like

Philippines Thailand Iran and Palestine to name just a few where executions are carried out at

alarming pace removing the possibility of reviews

On 15 August 2004 Atefah Rajabi Sahaaleh was hanged in a public square in the Iranian city of

Neka Her death sentence was imposed for adultery and crimes against chastity122123

Atefah

was executed a week after the trial was run Following the execution the Judge for the case was

arrested for investigation by the Intelligence Ministry The media reported that in addition to the

confession of his rape of Atefeh Judge Rezai who served as judge jury and executioner also

confessed to torturing her during interrogations to extract names of others she had relations with

No transcripts from court proceedings were recorded The State alleged that Atefah was 22 at the

time of her execution A witness later claimed The judge just looked at her body because of

the developed physique and declared her as 22124

ndash her birth certificate revealed she was born

in 1988 Furthermore Atefah did not have access to a proper defense where she could contest

charges leveled against her This is one example of many such cases of miscarriage of justice

Something that recurs in these cases is the failure of the police or prosecuting authorities to

prevent the use of unreliable witnesses the misuse of evidence or confessions and the provision

of inadequate defense representation The advent of DNA profiling and the use of it as positive

evidence in criminal cases has resulted in the exoneration of multiple death row inmates on

grounds of forensic evidence or lack thereof Since 1973 138 people have been released from

death row in the United States after it was proven that they were innocent125

In 2009 Paul

House was cleared of murder and exonerated in Tennessee USA after having served 22 years

on death row His innocence was proclaimed in light of substantial additional DNA testing and

further investigationlsquo 126

Amnesty International has noted examples of wrongful convictions from elsewhere as well

including Jamaica Japan China Nigeria and Tanzania127

Paul G Cassell a former law clerk to

the Chief Justice of USA stated the mistaken release of guilty murderers should be of far greater

concern than the speculative and heretofore nonexistent risk of the mistaken execution of an

innocent personlsquo highlighting the case made by those who advocate the death penalty even in

light of wrongful convictions128

122

httpwwwcosmolearningcomdocumentariesexecution-of-a-teenage-girl1 123

httpnewsbbccouk2hi5217424stm 124

httpnewsbbccouk2hi5217424stm 125

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 126

httparticlescnncom2009-05-13justicetennesseeexonerated_1_death-row-inmate-dna-evidence-house-

arrest_s=PMCRIME 127

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 128

httpdeathpenaltycurriculumorgstudentcaboutargumentstestimony3bhtm

UNHRC 33 of 44

Alternative to Death Penalty

All abolitionist states have reverted to the practice of sentencing criminals to life imprisonment

(some without parole) which is also termed as death by incarceration Widely regarded as a more

humane course of action life imprisonment is also alleged to be a more economical practice

While ensuring public safety by keeping criminals away from society this system also saves the

lives of innocent people who have been falsely or wrongfully convicted The setup inhibits and

curbs the cycle of violence while retaining the deterrence factor it is strongly asserted

Advocates for the death penalty are averse towards life imprisonment for a number of reasons

They cite the unreliability of the system as one of the flaws which impedes the possibility of

such a sentence being successful A certain James Moore serves as a valid example in this case

In 1962 James Moore raped and strangled 14-year-old Pamela Moss The victimlsquos parents opted

out of capital punishment for Moore and he was instead sentenced to life in prison without

parole Twenty years later a change in sentencing laws in 1982 renders James Moore eligible for

parole every two years129130

Kenneth McDuff is another example McDuff was convicted and sentenced to life imprisonment

Years later due to the issue of overcrowding in prisons McDuff was released following which

he killed eight more people McDufflsquos example is of an individual from a developed country

with an established legal system in place131

Overcrowding is a feature of prisons in developing

or lesser developed countries In many such states criminals have also been known to easily

break out from penitentiaries

The economic aspect of the debate is murky at best There is a lack of empirical data on the

subject which is why the arguments of both these sides cannot be settled beyond doubt

Advocates of capital punishment insist that the overall costs of the practice are far lesser than the

costs of housing an inmate for a lifetime132

They also suggest that the life imprisonment allows

criminals to conceive new habeas corpus petitions which on legal grounds cannot be rejected

automatically resulting in more trials

On the other hand substantial arguments are made which stress that the cost of legal proceedings

in capital cases is in truth more than that of other cases States and nations spend a significant

portion of the taxpayerlsquos money in meting out such punishments133

Delegates when addressing

this portion of the debate will need to be aware of the financial aspects of the issue as it forms

for many states an important part of whether capital punishment should be revoked or

not

129

httpwesleylowecomcphtmldeter 130

httpwwwnytimescomkeywordparole 131

httpwesleylowecomcphtmldeter 132

Ibid ndash view section titled Capital Punishment and its costslsquo 133

httpwwwamnestyusaorgour-workissuesdeath-penaltyus-death-penalty-factsdeath-penalty-cost

UNHRC 34 of 44

Imposition of Death Penalty on Juveniles

The prohibition on the death penalty for crimes committed by juvenile offendersmdashpersons under

age 18 at the time of the offensemdashis well established in international law specifically in the

Convention on the Rights of Child

ldquoNo child shall be subjected to torture or other cruel inhuman or degrading treatment or

punishment Neither capital punishment nor life imprisonment without possibility of release shall

be imposed for offences committed by persons below eighteen years of agerdquo134

- Article 37(a) Convention on the Rights of Child

ldquoSentence of death shall not be imposed for crimes committed by persons below eighteen years

of age and shall not be carried out on pregnant womenrdquo135

- Article 6(5) International Covenant on Civil and Political Rights

The treaties are a unanimously agreed set of non-negotiable standards and obligations By

acceding to the treaties and ratifying them governments commit to protecting and ensuring

childrens rights and to holding themselves accountable for this commitment before the

international community

Even though the practice of capital punishment on juveniles is relatively rare however in clear

contravention of international law nine countries have executed offenders who were juveniles at

the time of their crimes between 1990 and 2005136

These countries include the Peoples Republic

of China (PRC) the Democratic Republic of the Congo Iran Nigeria Pakistan Saudi Arabia

Sudan the United States and Yemen137

The USA has since moved to implement a ban on capital

punishment for juveniles However in most other countries of the preceding list the practice is

still enshrined in the judicial system Iranlsquos record in particular has been abominable over the last

decade It has carried out 39 executions of persons under the age of 18 since 2005 Presently

over a hundred individuals are placed on death row for crimes committed as juveniles The

executions of Mahmoud Asgari Ayaz Marhoni and Makwan Moloudzadeh became international

symbols of Irans child capital punishment and the judicial system that hands down such

134

httpwww2ohchrorgenglishlawcrchtm 135

httpwww2ohchrorgenglishlawccprhtm 136

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf - This document by the Human Rights Watch

called The Last Holdoutslsquo is a good summary of juvenile executions and should be reviewed 137

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 - Contains a list with

statistics and details of countries which have allowed the imposition of death sentence to juveniles

UNHRC 35 of 44

sentences138139140

Saudi Arabia and China too have questionable records that need to be

scrutinized further

While regional treaties and charters usually substantiate international law the Arab Human

Rights Charter of 2004 is unique among regional and international treaties in that the ban on the

juvenile death penalty in it is not absolute but merely optional141

Furthermore national laws in states that observe such a practice are in violation of

international legally-binding charters In Iran and Saudi Arabia laws usually treat a child the

same way as an adult criminal offender would be treated Article 10(3) of the International

Covenant on Civil and Political Rights emphasizes the need for demarcation between the

handling of children and that of adults in stating ―Juvenile offenders shall be segregated from

adults and be accorded treatment appropriate to their age and legal status142

The definition of a child in these Muslim states is unclear as adulthood is associated with

attainment of puberty which is a relative concept The Committee on the Rights of the Child in

January 2005 censured the Saudi government for its practice of imposing the death penalty on

juveniles terming it a serious violation of the fundamental rights The committee was deeply

alarmed over the discretionary power judges hold to treat juveniles as adults as was stated in

the committeelsquos report Iran too was strongly condemned following the release of an

international report highlighting the dire situation in Iran by the International for Human Rights 143

138

httpwwwfoxnewscomstory0293329798200html 139

httpnewsbbccouk2himiddle_east7130380stm 140

httpenwikipediaorgwikiCapital_punishmentIran 141

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 142

httpwww2ohchrorgenglishlawccprhtm 143

httpwwwfidhorgIMGpdfRapport_Iran_finalpdf

UNHRC 36 of 44

On August 19 2008 Iranian authorities executed Seyyed Reza Hejazi at Isfahan Central Prison

for his role in a murder committed in 2003 when he was 15 Hejazi was tried as an adult by

Branch 106 of the Isfahan General Court even if he did not qualify as one under international

stipulations and sentenced to death on November 14 2005144

In Saudi Arabia Mu`id bin

Husayn bin Abu al-Qasim bin `Ali Hakami was executed on July 10 2007 for a murder he

allegedly committed three years earlier when he was 13 years old145

The judges in these states

because of the implementation of the Sharialsquo law have a large amount of discretion with regard

to their rulings This discretion is often abused in the interrogation and judicial proceedings In

Pakistan authorities hanged Mutaber Khan in Peshawar Central Prison on June 13 2006 on

charges of murder of five people The fact that he was held in the juvenile wing of Peshawar

Central prison and the evidence presented by the accused confirming that his age was below 18

at the time of the killings were not taken into account during the trials and Mutaber was charged

as an adult in the case146

While the above does not cover exhaustively the practice of capitally punishing juveniles the

committee is expected to be well read on the matter The committee will be required to devise

ways to strictly apply the existing international law on the subject to curtail further deaths of

juveniles by states A series of recommendations on better implementation of international

covenants will be expected from the committee Delegates at UNHRC will also have to

familiarize themselves with the stipulations in the national laws of countries practicing juvenile

death penalties (Iran Saudi Arabia Pakistan Nigeria Sudan Yemen and UAE among others) to

discuss how these states are constitutionally able to bend international law and mete out the

illegal punishments

144

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 145

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 146

See FIDH and Human Rights Commission of Pakistan ―Slow march to the gallows and ―Condemned Prisoner

Executed Dawn Newspaper Karachi June 14 2005 httpwwwdawncom20060614nat16htm

UNHRC 37 of 44

Universality of Laws Incurring the Death Penalty

In countries which have not abolished the death penalty capital punishment may be imposed

only for the most serious crimes it being understood that their scope should not go beyond

intentional crimes with lethal or other extremely grave consequences

- Safeguards guaranteeing protection of the rights of those facing the death penalty147

Laws incurring the death penalty or capital crimes have certain uniformity the world over This

is of course barring states that are religiously affiliated and whose law systems are not secular

in nature The list of capital crimes for those states with non-secular legal systems is slightly

different The Human Rights Commission had decided that the imposition in the State party of

the death penalty for offences which cannot be characterized as the most serious including

apostasy committing a third homosexual act illicit sex embezzlement by officials and theft by

force are incompatible with Article 6 of the Covenant Economic offences including

embezzlement drug related offences political offences and robbery were also referred to148

The reason why looking into capital crimes and trying to garner a global impression of them is

important is that the death penalty can only realistically be abolished in a piecemeal way This

process will entail shortening the list of capital crimes The UN formally notes that ―in order

fully to guarantee the right to life provided for in article 3 of the Universal Declaration of

Human Rights the main objective to be pursued is that of progressively restricting the number of

offences for which capital punishment may be imposed with a view to the desirability of

abolishing this punishment in all countries149

The first established death penalty laws date as far back as the Eighteenth Century BC in the

Code of King Hammaurabi of Babylon which codified the death penalty for 25 different crimes

By the 1700s 222 crimes were punishable by death in Britain including stealing cutting down a

tree and robbing a rabbit warren In the 19th

century the death penalty was eliminated for over

100 of the 222 crimes punishable by death 150

In modern times the UN Special Rapporteur on

extrajudicial summary or arbitrary executions has stated that the death penalty should be

eliminated for economic crimes and drug-related offences and that the restrictions to its use

―exclude the possibility of death sentences for so-called victimless offences ndash including acts of

treason espionage and other vaguely defined acts usually described as crimes against the Statelsquo

or disloyaltylsquo and ―actions primarily related to prevailing moral values such as adultery and

prostitution as well as matters of sexual orientation151

147

httpwww2ohchrorgenglishlawpdfprotectionpdf 148

httpwwwunhchrchtbsdocnsf0bc310a747155dff88025655300537faeOpendocument 149

General Assembly resolution 2857 httpwwwunodcorgpdfcompendiumcompendium_2006_part_01_05pdf 150

httpdeathpenaltycurriculumorgstudentcabouthistoryhistoryPDF 151

httpswwwabofimedia24259report10pdf

UNHRC 38 of 44

Contrary to the made recommendations even political dissent warrants a death sentence in

several countries most notably in China and Iran In 2010 nearly 20 Kurdish people were

executed for political offences in Iran The country is known for keeping dissent especially from

the Kurds suppressed Most are executed on the grounds of moharebeh or enmity against God

Moreover challenging the power of the Ayatollah is also punishable by death These charges are

neither explicit nor in line with international guidelines over what crimes are punishable

capitally In Iran judges must handle such cases carefully as Iranian law provides for only one

punishment if an individual is found to be guilty of treason Libya too thwarts political dissent

with firm laws in place for punishing by death those who illegally form groups organizations or

associations against the state152

Saudi Arabia too is worth note for its vaguely phrased laws governing capital punishment

Intentional murder and crimes that spread ―mischief in the land (Fasad fil-ardh) merit death In

2010 the government announced that it had executed 26 people all by beheading Crimes that

―spread mischief include witchcraft and sorcery153

How is one convicted of witchcraft in the

21st century What can the international community do when regarding countries such as these

Treason arguably along with murder is the capital crime that has yet to be phased out by many

countries In some such as Brazil treason during warfare is the only crime for which a person

can be sentenced to death In the Gaza Strip under Hamas any sort of cooperation with Israeli

forces during military actions is also punishable by death In others including Algeria Bahrain

Iran and Malaysia treason is punishable by death in all circumstances The United States too has

federal laws governing treason under which traitors ―shall suffer death154

Child sex abuse is another crime that is widely held to merit the death penalty In Russia for

example according to the Russian Public Opinion Research Center an overwhelming majority

consider the death penalty to be an acceptable punishment especially in relation to molestation

155 In 2009 however Russias Constitutional Court effectively abolished the death penalty by

extending indefinitely a 13-year-old moratorium on capital punishment156

Indonesia has some of the strictest penalties for drug related crimes in the world Roughly half of

those on death row are incriminated with drug-related charges157

In 2008 though the most high

profile executions were of terrorists Three of those found responsible for the 2002 Bali

bombings were executed by shooting158

Generally speaking however a significant proportion of

152

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 153

httpwwwstategovgdrlrlshrrpt2010nea154472htm 154

httpdeathpenaltyproconorgviewresourcephpresourceID=1172 155

httpenrianrutrenddeath_penalty 156

httpwwwreuterscomarticle20091119idUSLJ330478 157

httpwwwnytimescom20080711worldasia11iht-indo114421132html 158

httpnewsbbccouk2hiasia-pacific7718246stm

UNHRC 39 of 44

the executions or death sentences recorded (in 2010) in China Egypt Indonesia Iran Laos

Libya Thailand United Arab Emirates and Yemen were for drug-related offences In December

2010 the amended Anti-Narcotics law came into force in Iran extending the scope of the death

penalty to include additional categories of illegal drugs (for example crystal meth) possession

of which became punishable by death Also around the same time the National Assembly of

Gambia voted to extend the scope of the death penalty by making the possession of more than

250g of heroin or cocaine an offence punishable by death159

Several states allow for the death penalty for crimes of blasphemy and other crimes for

nonviolent expression and association In Pakistan Aasia Bibi a Christian mother of five was

charged with blasphemy and sentenced to death after a trial largely believed to be unfair on 8

November 2010 She is currently on death row The country is also noted for its laws concerning

capital crimes The list includes 27 crimes most of which go beyond the notion of ―most serious

crimes as recommended by the International Covenant on Civil and Political Rights Extra-

marital sex and blasphemy are examples of some capital crimes in the country In December

2007 Pakistan voted against a United Nation General Assembly resolution for a moratorium on

the death penalty The year before however the nation amended its law on rape and adultery

charges which are no longer punishable by death160

As far back as 1989 recommendations have been made as to how to abolish the death penalty

Member states (of the UN) have been urged ―to publish for each category of offence for which

the death penalty is authorized and if possible on an annual basis information about the use of

the death penalty including the number of persons sentenced to death the number of executions

actually carried out the number of persons under sentence of death the number of death

sentences reversed or commuted on appeal and the number of instances in which clemency has

been granted and to include information on the extent to which the safeguards referred to above

are incorporated in national law161

The committee must inspect how far this recommendation

has been adopted and should seek to rectify the weaknesses in the system of gradually

abolishing the death penalty Can a target year be designated by which crimes meriting the death

penalty could be made universal How can countries with non-secular legal systems be brought

into the fold of international law

159

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 160

httpwwwfiacatorgenIMGpdfdppakistan-enpdf 161

httpgraduateinstitutechfacultyclaphamhrdocdocsecosocresolutiondeathpen1989html

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 3: UNHRCFINAL

tion Particular focus on the practicality and applicability of resolutions

will be required from you as delegates in light of international diplomatic

standards We hope that as individuals you engage in the sessions with a

unique perspective and take away from the committee a more sophisti-

cated view of these issues

We have thoroughly enjoyed our experiences with LUMUN In retrospect

these experiences have been eerily similar We both attended LUMUN rsquo08

as delegates and won the Outstanding Diplomacy award in our respective

committees We then joined LUMUN in our freshman year and were ap-

pointed Assistant Committee Directors for the United Nations Security

Council for LUMUN 2010 Both of us have chaired the Disarmament and

International Security Committee (DISEC) at separate intra-LUMS MUNs

And now here we are at LUMUN 2012 LUMUN has been an excellent op-

portunity for us to explore our interests and engage with people on a simi-

lar note As your Committee Directors we hope to provide you with the

same opportunities and strive to improve your experience as a delegate

Please note that given that we are a simulated council we have taken cer-

tain liberties For starters the Councilrsquos delegations will not be mirroring

current Council memberships Furthermore our first topic would not be

something discussed in formal international spheres We realize this but

in view of pushing you as delegates to think critically and expand your

knowledge of global affairs inspecting Chinese human rights violations is

appropriate The guide leans towards providing examples of these viola-

tions and not many rationalizations of them That we feel is the domain

of your personal research

To conclude we truly hope all of you enjoy your time at LUMUN 2012 In

order for this to happen delegates must be cognizant of the topics under

review We encourage you to scrupulously research your stances and have

more than just a basic impression of what the topics entail Delegates are

expected to be aware of all updates with regard to the subject matter and

to treat the study guide as an introduction to the topics and not as a stand

-alone document In the process of deciding the topics researching for and

compiling the guide we have become increasingly involved with these is-

sues We hope that you reciprocate our levels of interest and show the

same level of enthusiasm Delegates you are welcome to approach either

of us with any queries that you may have

All the Best

Khadija Mahsud amp Sarim Zia

Committee Directors UNHRC

UNHRC 1 of 44

Introduction to the Human Rights Council

World War II saw some of the worst atrocities of human history It was in the aftermath of the

inability of the League of Nations to prevent international unrest and human rights violations that

the United Nations Charter was promulgated and the UN was set up in 1945 The foundational

premise from which the UNlsquos committees and councils derive their agendas is the protection of

fundamental human rights It is in this vein that the Human Rights Council (and the Commission

it replaced) performs the most integral of functions of the UN Subsequent to the Charter

another landmark document was drawn up in 1948 namely the Universal Declaration of Human

Rights It was the first explicit global expression of the worldlsquos commitment to upholding the

sanctity of human rights It is from the permanent and unprecedented potency of the Declaration

that all subsequent human rights conventions and treaties have been derived both within and

outside of the UN Together with the International Covenant on Economic Social and Cultural

Rights and the International Covenant on Civil and Political Rights it forms the International

Bill of Human Rights

It was through the UN Charter that the Commission on Human Rights was established in 1946

with the purpose of promoting and protecting rights internationally Even though the

Commission successfully achieved the creation of the Universal Declaration of Human Rights it

was repeatedly censured for lacking constructive discussion on human rights issues It was

allegedly used a medium to blame countries and settle political scores It was also critiqued for

being composed of member nations with questionable human rights records such as China Cuba

Zimbabwe and Sudan This among other things led to the replacement of the Commission with

the Council The Council was formed in 2006 through a resolution of the General Assembly

(Resolution 60251)1 that passed with an overwhelming majority The UN Secretary General at

1 GA Resolution 60251 httpwww2ohchrorgenglishbodieshrcouncildocsARES60251_Enpdf

UNHRC 2 of 44

that time Kofi Annan referred to it as a historic resolution that gives the United Nations a

much needed chance to make a new beginning in its work for human rights around the world

The main aim of the Council is to report to the General Assembly and work with it to improve

the situation of global human rights As a specialized body it focuses solely on human rights and

managing the protection and advancement of the human rights of all individuals It aims to

promote universal respect for the protection of all human rights and fundamental freedoms as

demarcated in the International Bill of Rights and the UN Charter for all without distinction of

any kind and in a fair and equal manner Recommendations are made on all documented human

rights violations including gross and systematic violations

The Council can only make recommendations on violations of human rights to the GA which in

turn can suspend the voting rights of the accused Council member The Council also makes

recommendations to the GA for further development of international law in the field of human

rights

The Council comprises of 47 members elected on a geographic quota-based criterion for three-

year-long terms Members elected into the Council by the General Assembly must ―uphold the

highest standards in the promotion and protection of human rights fully cooperate with the

Council and be reviewed under the universal period review mechanism during their term 2

A year after its inception the Human Rights Council designed Resolution 51 in order to provide

mechanisms through which human rights situations could be monitored3 The Resolution

included the Universal Periodic Review (UPR) system4 Through this human rights situations in

individual UN member states are reviewed and subsequently discussed by the entire Council

sitting as a working group through an interactive dialogue with the concerned State The Review

system incentivizes states to independently reform and review domestic human rights situations

prior to international inspection which facilitates the fulfillment of the aim of the Council

Human rights situations are meant to be reviewed on a rotational basis for all 192 UN member

states

2 httpwww2ohchrorgenglishbodieshrcouncildocspledgespdf

3 Resolution 51 httpapohchrorgdocumentsEHRCresolutionsA_HRC_RES_5_1doc

4 Please see the following for information on the UPR of China

httpwwwohchrorgENHRBodiesUPRPagesCNSession4aspx

UNHRC 3 of 44

Conference underway at the UNHRC in Geneva

The Resolution also included the delineation of Special Procedureslsquo established by the former

Commission on Human Rights to comprise of five-member working groups or individual

experts (commonly referred to as Special Rapporteurs) to monitor human rights violations in

thematic or country-specific loci There are currently five Working Groups on people of African

descent on Arbitrary Detention on Enforced or Involuntary Disappearances on the Use of

Mercenaries to Impede the Right of Peoples to Self-Determination and on Situations

(Confidential 1503 Procedure)5

The mandates of the Special Procedures are established and defined by the resolution creating

them Some of the thematic mandates adopted by the Council include the issue of human rights

defenders torture and minorities Special Rapporteurs often conduct fact-finding missions

in countries to investigate allegations of human rights violations They can only visit

countries that have agreed to invite them

The Council is currently headed by Laura Dupuy Lasserre of Uruguay It concluded its

eighteenth session in September 2011 The diversity of the political and social issues

encompassed in the agenda resulted in discussion of issues as varied as the situation in Libya on

one end and water sanitation on the other Also discussed was the situation of human rights in

Syria and the pattern of widespread systematic human rights violations by Syrian security and

military forces was examined The illegal blockade imposed on Gaza was also under focus

Furthermore the Council adopted the outcomes resulting from debate over the Universal

Periodic Review of sixteen countries

5 httpwww2ohchrorgenglishbodieschrworkinggroupshtm

UNHRC 4 of 44

While the Council faces criticism along the lines of that made against the Commission it has

come a long way from being the ―shadow on the ―reputation of the UN system as whole 6

6 httpnewsbbccouk2hiamericas6919268stm

UNHRC 5 of 44

Topic Area A The Great Firewall of China Review of the Human Rights Situation

Introduction to the Topic Area

The Peoplelsquos Republic of China is the worldlsquos most populous country with an estimated

population of 137 billion It is also one of the largest countries in terms of its land territory

China has firmly established itself as a premier world economic powerhouse It is the worlds

second-largest economy after the United States by both nominal GDP ($593 trillion) and

purchasing power parity ($1012 trillion) A single-party state governed by the Communist Party

of China it is widely acknowledged to be the worlds fastest-growing major economy and the

worlds largest exporter and second-largest importer of goods China is also a permanent member

of the UNSC and is a prominent figure in international politics It is a recognized nuclear

weapons state and has the worlds largest standing army with the second-largest defense budget

China is on par with the United States as a superpower and is soon even expected to supersede

the latter as the worldlsquos major politico-economic power

However Chinalsquos record in relation to human rights violations stands out for all the wrong

reasons China has been ruled by the Communist Party since it gained power and established the

Peoplelsquos Republic of China in 1949 It is believed to be in breach of numerous human rights and

its transgressions are a subject of much concern for the entire international community Some

issues like the Tiananmen Square of 1989 or that of Mr Liu Xiaobolsquos imprisonment have seen

the light of day and escaped the iron clutches of Chinese control on media However thousands

of other cases are never brought out into the open and are unable to draw international attention

which is why this year at LUMUNlsquos United Nations Human Rights Council the debate will focus

on China and its human rights violations The human rights abuses in focus will be Chinalsquos

violation of reproductive rights the case of internet censorship in China and the right to free

speech political prisoners in China and illegal detention the infringement of rights in the

conflict with Tibet and ethnic minority rights

The committee will not only be expected to discuss all aspects of the issues distinctly and in

extensive detail The committee will also be expected to be familiar with the Universal

Declaration of Human Rights all pertinent treaties resolutions and conventions

UNHRC 6 of 44

Chinarsquos Violation of Reproductive Rights

While reproductive rights are not specifically mentioned in the Universal Declaration of Human

Rights they are widely understood to be an extension of the freedom of choice and right to life

They are to be granted equally to all humans without discrimination of race sex language or

religion under the United Nations Charter7 Reproductive rights embrace certain human rights

that are already recognized in national laws international human rights documents and other

relevant UN consensus documents The World Health Organization defines reproductive rights

in the following manner

ldquoReproductive rights rest on the recognition of the basic right of all couples and individuals to

decide freely and responsibly the number spacing and timing of their children and to have the

information and means to do so and the right to attain the highest standard of sexual and

reproductive health They also include the right of all to make decisions concerning reproduction

free of discrimination coercion and violence8rdquo

Only if individuals have the freedom to be in control of their sexual and reproductive lives can

uninhibited social development occur However the lack of any binding international covenant

on the subject is a grave state of affairs Soft laws in the form of non-binding measures are

often deemed too inadequate in mounting a challenge against the issue The United Nations

Human Rights Council has the capacity to make recommendations for the revision of the

aforementioned fact and will be something that the committee should focus on

Reproductive rights include in their spectrum the right to legal or safe abortion the right to

access quality reproductive healthcare the right to birth control and the right to education in

order to make well-informed reproductive choices without any coercion or violence9 Equality

and equity for men and women is of paramount importance while addressing such civil liberties

so that individuals are able to make free and informed choices in all spheres of life without any

discrimination of any kind An essential aspect of the debate is related to the right to privacy that

all individuals must be granted in the process of their decision-making

The provision of such personal human rights is notably absent in China With the stern

implementation of the one-childlsquo policy10

China has undertaken extreme measures at the cost

of innumerable human rights to curtail population growth Despite having previously ratified the

7 Article 1 of the UN Charter httpwwwunorgendocumentscharterchapter1shtml

8 Gender and reproductive rights home page httpwwwwhointreproductivehealthen

9Amnesty International USA

httpwwwamnestyusaorgStop_Violence_Against_Women_SVAWReproductive_Rightspagedoid=1108242ampn

1=3ampn2=39ampn3=1101 10

Article 18 of Population and Family Planning Law of Peoplelsquos Republic of China

httpwwwunescaporgesidpsispopulationdatabasepoplawslaw_chinachina20pop20and20family20plan

ningpdf

UNHRC 7 of 44

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in

198011

which prohibits coercion in family planning policies12

China continues to dictate the

reproductive lives of all its citizens While the Law on Population and Family Planning states

that one child is mostly merely encouraged abusive or coercive enforcement measures such as

forced abortions compulsory sterilizations and the forced insertion of intra-uterine devices after

abortions or births are common practices that are regularly documented13

Forced sterilizations are a troublingly common practice in other regions as well Perulsquos case is

important in this regard with its program of achieving a target number of sterilizations each

year sometimes numbering in the hundreds of thousands Indeed the government would

sometimes bribe women to undergo these procedures in exchange for food and medicine for

their existing children 14

A system of enhanced monitoring strategies is often regarded as one of

the solutions to the problem

Another pervasive measure employed by the state is the routine monitoring of the menstrual

cycle of women particularly those in the child-bearing age by family planning officials15

Their

employment is often contingent upon compliance with the policy The right to privacy is

severely breached in all such instances Furthermore unmarried women are not allowed to have

children and even married couples must apply for a birth permit before they can legally bear

children16

Analyzing the statelsquos penetrating involvement and interference in the private spheres

of individuals in light of existing treaties and conventions will be one of the committeelsquos tasks

Women and couples who defy the policy face fines amounting to several yearslsquo salary have their

access to social services cut and are even imprisoned in certain cases Their so-called black

childrenlsquo have no legal status in China meaning these children are not granted any rights

whatsoever and do not have access to education health or any other services provided by the

State There are an estimated 6 million undocumented children in China most of which are

believed to be girls17

The cases of Mao Hengfeng and Chen Guangchengserve as prime examples demonstrating the

inhumane nature of penalties handed out by the Chinese state to violators of the one-child

policy18

Mao a human rights activist was sentenced to two and a half years in prison after she

refused to have an abortion Chen was a blind self-taught lawyer and activist who was charged

and punished with more than four years in prison after exposing abuses in the implementation of

the one-child policy

11

httpunifem-eseasiaorgChina 12

httptreatiesunorgPagesViewDetailsaspxsrc=TREATYampmtdsg_no=IV-8ampchapter=4amplang=en 13

httpwwwrhrealitycheckorgnode7926 14

httpwwwwebsteredu~woolflmforcedsterilizationhtml 15

Page 2 httpwwwcensusgovpopulationinternationalfilesspSP73pdf 16

httpfactsanddetailscomchinaphpitemid=128ampcatid=4ampsubcatid=15 17

Ibid 18

httpwwwrhrealitycheckorgnode7926

UNHRC 8 of 44

The appalling state of affairs is further augmented by the actions the Chinese state takes to

impede the birth of conceived children It implements very strictly a program of compulsory

sterilization and forced abortions to minimize the birth of a second child in a family While

abortion itself may be a debatable and controversial topic the subset of such a controversy in the

form of a state-regulated forced abortion is excruciatingly black and white The undeniable

cruelty of forced abortions is not a deterrent strong enough for the Chinese government and the

phenomenon exists widely in China In fact the policy leads to an estimated 13 million abortions

every year with many of those ordered by local authorities Infanticide is a common practice

especially in the rural areas of the country19

Women are abducted by the state and at the cost of

their lives are forced to undergo forced and mostly unsafe abortions

In October of 2010 China forced an eight-month pregnant woman into an abortion for breaching

the one-child policy20

Government officials entered Xiao Aiyinglsquos residence hit and kicked her

in the stomach and subsequently dragged her to the hospital where doctors injected her with a

lethal drug to kill her unborn baby Xiaolsquos husband later described the incident They held her

hands behind her back and pushed her head against the wall and kicked her in the stomachlsquo The

animalistic discourse adopted by the government officials is a testimony to Chinalsquos open rebuke

for human rights More recently Womenlsquos Rights without Frontierslsquo and China Aidlsquo reported

the death of a six-month pregnant woman during a forced abortion on October 12th

201121

Jihong Ma was seized by Family Planning Officials for a forced abortion having violated the

one-child policy

While the positive environmental impact of the prevention of 300 to 400 million births may be

cited22

it must be noted the one-child policy privileges only the wealthy who can afford the

fines for additional births and have better access to contraceptives and health care while

punishing the poor who are financially crippled by the fines incurred for additional births

Moreover this policy punishes the children of the poor because they are more likely to be kept

hidden from the state and thus will not have access to health care and the education they need to

climb out of poverty In this way social disparity is further perpetuated within the existing

framework

Another adverse byproduct of Chinas 30-year-old family planning policy is the gender

imbalance that is now manifested most clearly among those of marrying age The British

Medical Journal claimed that in 2005 there were 32 million more males than females (under the

age of 20) in China23

Even though China banned prenatal sex screening in 199424

illegal

ultrasound tests allow prospective parents to choose the gender they prefer for their only child

19

httpwwwdailymailcouknewsarticle-1322601China-forces-woman-abortion-EIGHT-months-breaching-

child-policyhtml 20

Ibid 21

httpwwwwomensrightswithoutfrontiersorgblogp=429 22

―Has Chinas one-child policy worked httpnewsbbccouk2hiasia-pacific7000931stm 23

British Medical Journal BMJ 2009 338b1211 httpwwwbmjcomcontent338bmjb1211full 24

―A Brief History of Chinas One-Child Policy httpwwwtimecomtimeworldarticle08599191286100html

UNHRC 9 of 44

creating a massive imbalance This imbalance will lead to drastic results in the next few years an

implication the committee needs to take in account when establishing a framework for

responding to the issue

The Human Rights Council conducted a Universal Periodic Review of China in 200925

to much

international consternation and surprise the report lacked substantial evidence implicating

China and was instead found to be extremely vague The role of the United Nations in defining

and drawing attention to the issue is of key significance and the Human Rights Council must

make recommendations on how the United Nations can enhance its capacity in laying the

foundations for the case The Council can also make recommendations regarding the changes

that can be brought about in the conduct of the Review and otherwise in order to be able to

contain the issue with lesser difficulty

The committee will be called upon to review reproductive rights in detail including the implicit

and explicit consequences on the people of China Access to reproductive healthcare is a

problem the world over and is often consciously violated by states Is there a way to control

these violations perhaps through devising enhanced monitoring strategies

The Case of Internet Censorship in China and the Right to Free Speech

Everyone has the right to freedom of opinion and expression this right includes freedom to hold

opinions without interference and to seek receive and impart information and ideas through any

media and regardless of frontiers26

- Article 19 Universal Declaration of Human Rights

Everyone shall have the right to freedom of expression this right shall include freedom to seek

receive and impart information and ideas of all kinds regardless of frontiers either orally in

writing or in print in the form of art or through any other media of his choice 27

- Article 19 (2) International Covenant on Civil and

Political Rights

The Peoplelsquos Republic of China along with being the most populous region of the world is also

home to the worldlsquos largest collection of internet users According to Xinhua Chinalsquos state-run

English news agency Chinalsquos internet user ship exceeded 500 million users as of September

201128

China is also the worldlsquos largest media market However despite these impressive

statistics it is both interesting and disturbing to note that the Republic is also remarkable for its

25

httplibohchrorgHRBodiesUPRDocumentsSession4CNA_HRC_WG6_4_CHN_3_Epdf 26

httpwwwohchrorgENUDHRDocumentsUDHR_Translationsengpdf The Universal Declaration of Human

Rights 27

httpwww2ohchrorgenglishlawpdfccprpdf The International Covenant on Civil and Political Rights 28

httpnewsxinhuanetcomenglish2010china2011-0929c_131167919htm

UNHRC 10 of 44

censorship history About a dozen government bodies control internet usage including the

Ministry of Public Security29

It has been noted that while the Chinese advertising industry is

booming this freedom does not extend to editorial content of newspapers30

This phenomenon of

Chinese censorship has been labeled in the mainstream global media as the Great Firewall of

China The Firewall serves to filter both the information coming into China as well as

information generated within the nation It is beyond being a clever pun a matter of concern for

the committee because of its repressive characteristic The State imposes such extreme

restrictions of freedom of information under the premise of protection of its nationalistic

interests However its negative connotation is much obvious and its resemblance to Orwelllsquos

Ministry of Truth and the notion of thought control is uncanny The Peoplelsquos Republic has signed

(not ratified) the International Covenant on Civil and Political Rights The committee can look

into the reasons behind this as well as assess current global membership to the covenant

Chinalsquos Internet censorship is centered on the control of political thought The Measures on the

Administration of Internet Information Services and the Provisions on the Administration of

Internet News and Information Services are the two main instruments used to do so31

Section 19

of the latter deserves special attention and casts its scope to prohibit activities that disrupt

―national policies on religion propagating evil cults and feudal superstitions jeopardize ―the

security of the nation harm ―integrity of the nationlsquos unity or ―the honor or the interests of the

nation among other things32

Regulations are so stringent that in 2008 only eight websites out

of a total of 430000 in Guangdong Province ndash Chinalsquos most populous region -- were able to

obtain news publication qualifications permits33

The Internet news and information services entities engaging in Internet news and information

services shall abide by the Constitution laws and regulations by persisting in providing service

for the people and serving socialism and guiding public opinion to protect the interests of the

nation and the public

- Article 3 Provisions on the Administration of Internet News and Information Services

The national report submitted by China to the Working Group for the Universal Periodic Review

in 2009 exhibited the governmentlsquos opinion that ―with such easy fast and diverse ways of

gaining access to information and expressing opinion including criticism of the Government

Chinese citizens are enjoying an entirely new lifestyle34

According to a white paper published

29

httpwwwhrworgreports2006china08063htm_ftnref28 30

httpnewsbbccouk2hiafricacountry_profiles1287798stm 31

httpwwwhrichinaorgcrfarticle3244 32

httpwwwchinaitlaworgp1=printampp2=051006175116 Provisions on the Administration of Internet News and

Information Services

Please peruse the following httpwwwhrworgreports2006china08063htm for commentary on the Provisions 33

Ibid 34

httplibohchrorgHRBodiesUPRDocumentsSession4CNA_HRC_WG6_4_CHN_1_Epdf

UNHRC 11 of 44

in 2008 by the Information Office of the State Council the internet is a ―crystallization of human

wisdom and ―Chinese citizens fully enjoy freedom of speech on the internet 35

Chinalsquos policies have relevance beyond

their contravention of what may seem to be

abstract principles China has jailed the

largest number of internet dissidents the

world over The case of Liu Shaokun for

example is a notable one He was a

teacher in Sichuan province which had

been hit in 2008 by a ravaging earthquake

around the time of the Summer Olympics

in Beijing China had been praised for

allowing reporters to openly cover the

earthquake Much of this openness however was part of a bid to soothe the international

community and project Beijinglsquos image as being the perfect venue for the Olympics Shaokun

however was sentenced to a year of labor for posting photographs of schools affected by the

earthquake He is among countless others who have been silenced36

When the Arab Spring flowered over the Middle East China cracked down on many social

networking sites to curb pro-democracy sentiments Amongst these was LinkedIn blocked over

the fact that one of its users had mentioned the possibility of a ―Jasmine Revolution in China37

The government blocks discussions about the Dalai Lama the Tiananmen Square protests and

the Falun Gong spiritual movement among other things In April of 2007 the Chinese version of

MySpace launched but lacked discussion forums centered on the aforementioned topics among

others including Taiwanlsquos independence In 2010 Google considered withdrawing its services

from China after a spur of cyber-attacks on email accounts of human rights activists 38

Google

and the government reached a deal whereby Google operated by Chinese guidelines within

mainland China However Google has a non-censored operation running in Hong Kong to

which it started routing customers in 2010 when it had concerns over Google accounts being

hacked by authorities It is testament to Chinese control that companies such as Google are

forced to enter the internet market on its terms Other instances of well renowned internet

websites being blocked or affronted include Twitter being banned during the 20th

anniversary of

the Tiananmen killings

The Committee to Protect Journalists ranks China as one of the worst internet censors The

Chinese government has been alleged of carrying out ―spear-phishing whereby spying software

disguised as legitimate emails is installed on computers that belong invariably to journalists

35

httpchinaorgcngovernmentwhitepapernode_7093508htm 36

httpcpjorgreports201012cpj-journalist-prison-census-iran-china-highest-14-yearsphp 37

httpwwwbbccouknewstechnology-12586462 38

httpnewsbbccouk2hi8460129stm Please look at this link for a timeline of Chinalsquos internet history

UNHRC 12 of 44

Victims included those writing about Liu Xiaobo the imprisoned human rights defender who

received the Nobel Peace Prize in 201039

According to statistics over 80 of Chinas netizens rely mainly on the Internet for news 40

With this state of affairs and increasing dependence the world over on the internet as a major

source of information discussing information monopolies is crucial To isolate a country of over

a billion and deny it access to information in the age of technology may not seem a palpable

physical or otherwise contravention of human rights however its consequences are

tremendous While one may think that media censorship is restricted to dictatorial regimes the

case of China serves to refute that line of thought Media censorship is prevalent even in

countries as varied as Indonesia India Mexico and Russia ndash all of whom rank relatively low on

the Press Freedom Index41

Looking at instances worldwide and the justifications given for

restricting rights will be a useful direction to take while researching

The following website is a useful tool to check the status of websites in China

httpwwwgreatfirewallofchinaorg

Political Prisoners in China and Illegal Detention

Political prisoners are those whose imprisonment is carried out arbitrarily on contestable and

controversial grounds Governments detain certain individuals on the basis of allegedly valid

grounds which are not always disclosed or declared Many detainees charge existence of ulterior

motives or extrajudicial reasons on part of the state for their detention The phenomenon of

political prisoners is often associated with closed regimes such as Burma and the DPRK

However the Peoplelsquos Republic of China too does not escape scrutiny when the topic of political

prisoners is at hand The phenomenon of political prisoners resonates so loudly in the

international spheres particularly because governments deny the existence of political prisoners

they claim that all detainees are lawfully held under criminal law The unfair detainment of

persons or the capture of people to serve the interests of a government contravenes many human

rights including freedom of expression association and assembly Indeed a countrylsquos political

imprisonment record is one of the crucial indicators of its human rights situation

Amnesty International views political prisoners as prisoners of conscience These are more

specifically ―people who have been jailed because of their political religious or other

conscientiously-held beliefs ethnic origin sex color language national or social origin

economic status birth sexual orientation or other status42

39

httpwwwcpjorgreports201105the-10-tools-of-online-oppressorsphp 40

httpchinaorgcngovernmentwhitepapernode_7093508htm 41

httpenrsforgpress-freedom-index-20101034html 42

httpwwwamnestyusaorgour-workissuesprisoners-and-people-at-riskprisoners-of-conscience

UNHRC 13 of 44

According to the (US) Congressional Executive Commission on China over 5000 cases of

politically or religiously motivated imprisonments have been made It has detailed documented

information on the status of 1452 of these prisoners and

notes that its information is far from complete and that the

true story of Chinalsquos political prisoners remains unknown 43

The plight of political prisoners in China is speculated upon

by various international organizations Among these is the

Human Rights Watch which has gone as far as labeling the

locations for holding political prisoners ―black jails and

―alleyways in hell Officially though the Chinese

government denies the existence of political prisoners Subsequent to Chinalsquos Universal Periodic

Review an outcome report was published which came under fire from various sides The Human

Rights Watch called the substance of the report to be ―manifestly so far removed from reality

that [it] would immediately discredit anybody that adopted them in a report 44

In the report of

the UNHRC Working Group subsequent to Chinalsquos UPR it is stated that the Chinese

government does not use ―state secrets to suppress human rights defenders 45

It is precisely this

situation that our simulation wishes to remedy discussion should be fact based

The ground realities are different In 2010 Chinese activist and human rights defender Mr Liu

Xiaobo was awarded the Nobel Peace Prize He was jailed by Chinese authorities for

distributing his ―Charter 08 a document that called for freedom of expression and of assembly

among other things The government incarcerated him for an 11 year time-period on the charge

of subversion Subsequent to the prize the Chinese government came down hard on other human

rights activists Indeed those celebrating the awarding of the prize to Mr Xiaobo were arrested

arbitrarily While distributing fliers celebrating the win many were imprisoned on the grounds of

―inciting subversion of state power The Report of the Special Rapporteur on the situation of

human rights defenders published in 2011 makes mention of these facts46

The Chinese

government labeled the award an ―obscenity It is vague allegations such as these that allow

governments to thwart dissidents As expected though according to the report of the HRC

Working Group No individual or press has been penalized for voicing their opinions or

views47

When discussing China and political prisoners it is important to mention the Falun Gong

movement It is a spiritual variant of Buddhism and originated in China on the basis of the

teachings of its founder Li Hongzhi The movement was supported within the Chinese

43

httpwwwceccgovpagesvictims20101010_PPD_AR10pdfPHPSESSID=705596c0e91f35e392e6f0ecbb78d6

7c 44

httpwwwhrworgennews20090610human-rights-watch-statement-upr-outcome-report-china 45

httpdaccess-dds-nyunorgdocUNDOCGENG0916299PDFG0916299pdfOpenElement 46

httpwww2ohchrorgenglishissuesdefendersdocsAHRC1644Add1_EFSonlypdf Page 63 47

httpdaccess-dds-nyunorgdocUNDOCGENG0916299PDFG0916299pdfOpenElement Para 71

UNHRC 14 of 44

officialdom initially However Falun Gonglsquos popularity within the masses as well as its

independence from the state and its spiritual teachings was soon perceived as a threat to the

government By the late 1990lsquos the Chinese government cracked down on the movement and

labeled it as a heretical organization Chinese legislation uses the expression ―Xiejiao zuzhi to

refer to a wide range of sectarian or unorthodox religious groups which do not meet official

approval The Falun Gong movement is included in this list48

The Falun Gong followers are the

worldlsquos largest group of prisoners of conscience The PRC often picks up practitioners and

accuses them of ―using an evil cult to destroy implementation of the law 49

China with its strict non-religious government did not take kindly to this new movement that

had garnered millions of followers both within China and internationally between 1992 and the

crackdown in 1999 Today Falun Gong is practiced freely in more than 70 countries around the

world with clubs and associations existing in a range of settings50

Beginning at the turn of the

millennium the authorities started to ban access to websites that contained material about the

movement Indeed a search on the movement on Chinalsquos Xinhua News Agency website will

even today yield nothing (It may be an interesting experiment for delegates to conduct) Those

who reported the initial crackdown were ―followed detained interrogated and threatened

according to a letter written in 1999 by The Foreign Correspondents Club (FCC) of China51

The Falun Gong movementlsquos official website deals with its persecution thus The complex

rationale behind the persecution can be broken into four elements a paranoid dictators fear of

Falun Gongs meteoric growth and soaring popularity that same dictators intense jealousy of

Falun Dafas popularity the inherent conflict between the communist regimes savage political

ideology and its polar oppositemdashFalun Dafas principles of Truthfulness Benevolence

Forbearance and the very nature of communism which to sustain itself requires periodically

labeling a small segment of the population as the class enemy to struggle against52

The Chinese crackdown on Falun Gong practitioners involved a ban on practicing it by the

Chinese Communist Party whose members as aforementioned were interestingly initially

adherents to the movement in significant numbers Indeed the party was divided from within

over their stance on the movement The government formulated an ―anti-cult law a few months

after issuing a warrant for the founderlsquos arrest ―During the first two years of the crackdown

between 150 and 450 group leaders and other members were tried for various crimes and

sentenced to prison terms of up to 18-20 years53

To this day ―central leaders turn a blind eye to

48

httpwwwamnestyorgenlibraryassetASA170112000en7a361a8e-df70-11dd-acaa-

7d9091d4638fasa170112000enhtml 49

httpwww2ohchrorgenglishissuesdefendersdocsAHRC1644Add1_EFSonlypdf 50

httpwwwfaluninfonettopic22 51

httpwwwamnestyorgenlibraryassetASA170112000en7a361a8e-df70-11dd-acaa-

7d9091d4638fasa170112000enhtml 52

httpwwwfalundafaorgengfaqshtmlpersecution 53

httpfpcstategovdocumentsorganization67820pdf Page 4

UNHRC 15 of 44

local methods of suppression against unrepentant practitioners including the reported use of

torture54

Also worth noting is the fact that Chinalsquos judicial system has been alleged to be anything but

conducive to providing justice to those using the system Indeed it is a repressive tool used by

the government to silence dissent China with its vast land mass and various provinces and

municipalities must work hard to keep its Centre strong Scores of individuals who are more

obscure than human rights activists and such are imprisoned by the government while ironically

seeking justice It has long been the custom for people of the countryside to seek justice in

Beijing if they felt that their local authorities had treated them unfairly However modern China

has not taken kindly to this tradition Local authorities are evaluated on the basis of the number

of complaints the Centre receives about them Thus they have a vested interest in thwarting the

reports of any complaints about them to Beijing Those who complain are whisked off to black

jails where ―detainees are denied access to legal counsel and in most cases contact with family

and friends They ―are kept under constant surveillance and subject to often arbitrary physical

and psychological abuse55

Chinalsquos record with regard to political prisoners and its tradition of suppressing dissent are

exacerbated by the sheer scale on which dissent is thwarted The aspect of potential torture of

prisoners further complicates the issue It is troubling that the issue of Chinese political prisoners

only gained international prominence with the case of Mr Liu Xiaobo It is not the only nation in

the world to adopt such strict policies in order to further its own ideology and the committee will

do well to ruminate upon how this tradition can be discontinued so as to allow people their

essential political freedoms

The Infringement of Rights in the Conflict with Tibet

Despite the furor that has been inconsistently directed towards its human rights record China

continues to impose tightening restrictions on rights of expression association and assembly

The Chinese government carries on devising social and economic changes that retain its firm

authority over its citizens which in turn enables a host of human rights violations In the context

of Tibet China has failed to address the grievances of the people there who have been made

victims of social discrimination and have unequal access to opportunities Scores of Tibetans are

marginalized and detained for their religious inclinations which are further suppressed by the

imposition of intense patriotic educationlsquo campaigns whereby socialism is furthered and all sorts

of religious or individualistic tendencies are thwarted

54

Ibid Page 5 55

httpwwwhrworgreports20091112alleyway-hell-0 Page 4

UNHRC 16 of 44

Despite its totalitarian approach China refuses to accept responsibility for the issue Instead it

blames westernlsquo forces for trying to instigate separatism56

The indifference on the part of

China with particular regard to Tibet is apparent with Chinese authoritieslsquo continuous rejection

of ―inconvenient requests by UN human rights experts for visits to the Tibet Autonomous

Region57

During 1912 and 1951 Tibet underwent a period of de facto independence58

While it was still

territorially a part of China it enjoyed relative freedom in its political discourse Tibetan

autonomy was confined within the context of Chinese suzerainty and should not be interpreted

as unrestrained political independence Since 1951 however the Chinese government has taken

steps to ensure its absolute and undeniable dominance over Tibet from which emanates the strife

under discussion Gross violations of human rights have taken place in China administered by

officials with the purpose of cultivating consent with regard to its control over the region

Suppression has led to the inevitable extensive discontent in Tibet a fury which was unleashed

in 2008 The Tibetan unrest of 2008 was a series of protests and demonstrations - not merely in

the Tibet Autonomous Region but elsewhere as well - that later transformed into rioting burning

looting and even killing59

The rioters set fire to state vehicles and clashed violently with the

police installed in the region The crackdown of Chinese authorities in response to the riots was

severe resulting in deaths on both sides and mass imprisonment by state authorities The degree

to which human rights were violated and abused during this crackdown cannot be overstated

The Chinese also revoked the freedom of sharing of information and imposed a ban on the entry

of media officials in the region to contain

information about the unrest and play down

protests60

A Tibetan Government in Exile has existed in India

since 1959 established by the 14th

Dalai Lama61

This Central Tibetan Administration considers the

issue as an illegitimate military occupation by the

Chinese state The Administration works with the

agendas of restoration of freedom in Tibet and rehabilitation of Tibetan refugees

Historical facts refute such a fallacy however The simple reality that the installation of the 14th Dalai Lama

needed the approval of the national government is sufficient proof that Tibet did not possess any independent power

during that period ndash (httpwwwchinaorgcne-whitetibet9-2htm)

56

httpwwwunhcrorgrefworldcountryAMNESTYCHN49b8dfc11a0html 57

Ibid 58

Grunfeld A Tom Reassessing Tibet Policy 2000 59

httpwwwnytimescom20080316worldasia16iht-tibet111134870html 60

Watts Jonathan Branigan Tania (March 18 2008) Tension rises as armed police mass in capital The

Guardian (London) Retrieved November 1 2011 61

httpwwwtibetnetenindexphpid=14

UNHRC 17 of 44

The censured freedom of expression is one of the multiple infringements on rights that are

imposed by China on Tibet Tibetans are denied the basic right to articulate their views through

political discourse Human rights activists advocate the freedom of speech for Tibetans under the

existing and future political arrangements Religious and political figures in Tibet are placed

under house arrest limiting their freedom of movement (in contradiction to article 13 of the

Universal Declaration of Human Rights)62

As was highlighted during the unrest in 2008 China

has often stripped the Tibetan population of its fundamental rights to associate and assemble In

2000 nine Tibetan prisoners in Kandze were charged for participating in a peaceful protest to

five-year prison terms in October 1999 (which were later increased to ten-year terms)63

This example leads us to another crop of abuse conducted overtly by Chinese authorities

arbitrary detention Article 9 of the Universal Declaration of Human Rights reads ―No one shall

be subjected to arbitrary arrest detention or exile64

Chinese law however permits authorities

to detain persons without formally arresting or charging them and persons may be sentenced

administratively to up to 3 years in reeducation-through-labor camps and other similar facilities

without a trial

Chinese authorities have been unresponsive to concerns expressed by the United Nations

Working Group on Arbitrary Detention No counter-explanation was given either over the case

of three Tibetans who had their sentences extended for staging a peaceful political protest during

the Working Groups visit to Drapchi in October 1997 despite international pressure65

Infinite

examples of arbitrary arrests and detentions exist in China international authorities have called

on China to cease this practice and release such detainees immediately absent evidence that they

have engaged in criminal acts No state can or should be able to hold anyone for engaging in

peaceful political activity All humans

should be granted internationally recognized

due-process protections which includes the

right to be informed of the charges leveled

against them66

The question of whether

these detainees are given an impartial trial if

one at all is not even raised

In addition to the arrests carried out in

violation of international law there are

grave evidences of abuses during detention

62

httpwwwhrworgnews20000612human-rights-violations-tibet 63

Ibid 64

httpwwwunorgendocumentsudhr 65

httpwwwhrworgnews20000612human-rights-violations-tibet 66

httpwwwhrworgnews20000612human-rights-violations-tibet

UNHRC 18 of 44

Incidences of beatings at time of arrest and torture (including the administration of electric

shocks and deprivation of food and medical treatment)67

during custody are widely reported

These are not isolated cases rather the product of a holistic policy of dealing with political

dissidents In one notable incident in May 1998 political prisoners in Drapchi staged major

protests to coincide with a visit from a European Union delegation The protests were non-

violent but the authorities reaction was severe several protestors were shot at and one monk

Lobsang Gelek subsequently died68

The Convention Against Torture (CAT ratified by China in 1988) requires the state to prevent

torture and punish those in violation of the law China has not amended its own laws to comply

with even the first article of CAT69

Such practices explicitly stand in contempt of Article 5 of

the Universal Declaration of Rights which censures the use of torture or cruel treatment as

punishment Dr Manfred Nowak the UN Special Rapporteur on Torture stated that ―he was

struck by the strictness of prison discipline and a palpable level of fear and self-censorship when

talking to detainees following his brief assessment of Chinese and Tibetan prisons in 200570

The committee will be looked upon to review ways in which the situation can be monitored more

carefully and what responses if any can be cultivated to impede similar future actions by

China

The continued violations of religious freedom and implementation of policies designed to

diminish religious practices by the State to serve its political needs is a cause of concern Again

referring to the Universal Declaration of Human Rights Article 18 reads ―Everyone has the right

to freedom ofhellipreligion this right includes freedomhellipto manifest his religion or belief in

teaching practice worship and observance71

The policies implemented by Chinese authorities

through use of coercion violent repression and imprisonment impinge upon the freedom of

Tibetans to practice their religion freely China has also strictly enforced re-education programs

for dissident factors within the state The program is aimed at ―combating separatism protecting

stability and promoting development and is intended to reform the political ideology of people

who refuse to accept state control of what they perceive as vital aspects of their religious lives

and beliefs The committee will be expected to deliberate upon the protection of religious

freedom and practices of individuals as well as the validity of these re-education programs in

light of human rights and liberties

Tibet is not the only region where political tensions surrounding autonomy run high The

Kosovo-Serbian conflict is pertinent to recall The Republic of Kosovo declared itself to be an

independent entity on February 17 2008 As of 11 October 2011 85 UN states recognize the

independence of Kosovo However Serbia maintains that Kosovo is a UN governed entity under

67

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 68

httpwwwfreetibetorgabouttorture 69

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 70

Ibid 71

httpwwwunorgendocumentsudhr

UNHRC 19 of 44

its sovereignty Russia and China are among those who do not recognize the Republic while the

USA UK and France have recognized Kosovolsquos declaration of independence This highlights the

rift between the United Nations Security Council over the issue The case of Tibet is all the more

important in light of the fact that many such pockets exist in the world struggling for self-

determination

Media Links

httpwwwfreetibetorgnewsmedia2008-protests-summary

httpwwwguardiancoukworldgallery2008mar19tibetchinapicture=333178281ampindex=7

Chinarsquos Violation of Ethnic Minority Rights

One of the greatest blemishes on Chinalsquos human rights record is in the area of ethnic minorities

and the extent to which China protects ethnic minority rights On paper Chinalsquos policies are

based on ethnic equality and regional ethnic autonomy Ethnic minorities are supposed to be

benefitting from preferential policies in the political economic cultural and educational spheres

However the ground realities are infinitely different Questions have been raised over the extent

to which the government fairly provides services to these minorities and allocates resources

equally to them The Chinese government is seen to largely prefer its Han majority The

minorities claim they are exploited for their resources and in turn not even provided with the

same level of social services as the Han people China is an atheistic government and the fact

that many ethnicities garner their identity in major part from their religious affiliation leads to a

precarious situation The Mongols Tibetans and Uighurs all come to mind when discussing the

issue of China and ethnic minority rights

―Everyone is entitled to all the rights and freedoms set forth in this Declaration without

distinction of any kind such as race colour sex language religion political or other opinion

national or social origin property birth or other status Furthermore no distinction shall be

made on the basis of the political jurisdictional or international status of the country or

territory to which a person belongs whether it be independent trust non-self-governing or

under any other limitation of sovereignty

- Article 2 Universal Declaration of Human Rights

The International Convention on the Elimination of Racial Discrimination defines racial

discrimination as any distinction exclusion restriction or preference based on race colour

descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the

recognition enjoyment or exercise on an equal footing of human rights and fundamental

UNHRC 20 of 44

freedoms in the political economic social cultural or any other field of public life72

It is due to

this that the international community has adopted the norm of subsuming ethnicity under the

terminology of race

―The Peoples Republic of China is a united multi-ethnic country So far 56 ethnic groups have

been identified and recognized by the central government The population of various ethnic

groups differs greatly While the Han ethnic group has the largest population and that of the

other 55 ethnic groups is relatively small so they are customarily referred to as ethnic

minoritieslsquo According to the fifth national census conducted in 2000 the population of all the

55 ethnic minority groups totaled 10449 million accounting for 841 percent of the total

population of China73

Chinas official 55 minorities are located primarily in the south west

and north of China Only Tibet and Xinjiang have a majority population of official minorities

while all other provinces municipalities and regions of China have a Han majority

One of Chinalsquos autonomous regions is the Xinjiang Uighur Autonomous Region (XUAR)

located in western China The area is vast accounting for one sixth of Chinalsquos land and houses

around 13 major ethnicities including the Uighurs who are a predominantly Muslim people with

origins in Central Asia The Uighurs have had strained ties with the state and have often resisted

Chinese authority74

In turn the Chinese government has reacted sometimes violently against

restless factions in the region One of the most passive aggressive forms of response on the part

of the Peoplelsquos Republic has been the encouragement of the migration of the Han people ndash

Chinalsquos ethnic majority ndash to the XUAR75

Around 90 of Xinjiangs population comprised of

Uighurs in 1949 now it is estimated that Uighurs make up only about 45 of the population76

The policies in Xinjiang are said to be designed to ―promote economic development not

demographic change In reality though the influx of migrants has amplified Uighur discontent

as Han and Uighurs compete over limited jobs and natural resources77

The United Stateslsquo

Congressional-Executive Commission on China reported that in 2006 the XPCC (Xinjiang

Production and Construction Core) reserved approximately 800 of 840 civil servant job openings

for Han Chinese78

One of the causes of the Han monopoly in the employment sector is the

linguistic advantage afforded to them and perpetuated by the education system As part of its

efforts to implicitly impose a unified culture the language policy was altered by the state with

an increased focus on use of Mandarin in schools at the expense of the local languages

Methods of education special to the ethnic peoples of the XUAR including the Muslim Uighurs

are suppressed For example a campaign by the PRC in 2001 targeted religious teachers and

72

httpwww2ohchrorgenglishlawcerdhtm 73

httpenglishgovcnofficial2005-0728content_18127htm 74

httpwwwcfrorgchinaeast-turkestan-islamic-movement-etimp9179 75

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p8 76

httpnewsbbccouk2hiasia-pacific3330803stm 77

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p4 78

httpwwwcolumbiaeducunewsclips20080801UighursTWPOSTpdf

UNHRC 21 of 44

endeavored to sever ties between mosques and groups involved in allegedly ―separatist

activities Around 8000 imams were required to undergo ―political reeducation in this regard

and become ―patriotic religious personalities Ethnic minorities are educated in ways that do not

allow them to learn their own languages or practice their own religion In 2001 for example a

Muslim girl was expelled from school for praying 79

Moreover in an attempt to further its socialist agenda and bind ethnic minorities together

minority cultural activities are often hindered In its place nationalistic values are given a

premium and integrated into society so as to tie the entire country in a unified Chinese foldlsquo

Resultantly an asymmetry with regards to the provision of services and protection of cultural

identity can be found in almost every ethnic minority region in the country The repression

against minorities has wider implications on the human rights situation for all This leads to

creation of a vindictive attitude among the minorities not only against the government but also

the Han majority

In July 2009 this attitude manifested itself in

the form of severe riots between the Han and

Uighur communities in Xinjianglsquos capital city

Urumqi Ethnic tensions elevated to the point

that police involvement was made necessary

According to Chinese state media at least 150

people were killed and more than 800 were

injured The riots were reportedly sparked by a

Uighur protest over the ethnically motivated

killing of two Uighur workers in the southern

province of Guangdong

On the topic of allegations of separatism it is interesting to note that post 911 it has been noted

that the Chinese government has used concerns about terrorism as a method for suppressing

ethnic activity This is possible through the characterization of certain ethnicities as having

fundamental leanings The Muslim Uighurs fell under fire for this very reason after the

September 2001 attacks

One of the ways that the Chinese government with its Han leanings has asserted its presence in

the region is through the smokescreen of the XPCC The Peoplelsquos Liberation Army and the

XPCC are present in the region per the government to ―consolidate border defense accelerate

79

wwwminorityrightsorgdownloadphpid=29 Page 30

UNHRC 22 of 44

Xinjianglsquos development and reduce the economic burden on local governments and the local

people of all ethnic groups80

The heavy militarization of ethnic minority

regions also enables the Chinese government

to quickly respond to skirmishes between the

minorities and the Han For example clashes

between the Uighurs and the Han in the

XUAR are quickly clamped down upon The

response by Chinese authorities always

focuses on the minority groups in the region

The typical response includes a period of

strike hardlsquo security measures during which the minorities are subjected to police patrols of

crowded areas identity checks street searches increased criminal investigations and accelerated

trials The measures also include mandatory political indoctrination classes for the Uighur

population Swift Chinese response to ethnic dissidence precludes the possibility of trying

protestersrioters under due process This phenomenon also contributes to the controversy of

China and its policy of arbitrary imprisonment

Essential to any countrylsquos social progress is the protection and provision of the basic rights to all

its citizens For a country like China which has a significant standing in the international

community the degree to which human rights are upheld comes under added scrutiny Minorities

need to be guaranteed provision of not only fundamental rights but additional ones that grant

them equal opportunities

Recent Developments

3 November 2010 UN Secretary General pushes China on human rights

Ban Ki-moon the United Nations secretary general has called on China to respect human rights

after critics accused him of dodging the issue on a trip to Beijing The UN secretary general met

Hu Jintao the Chinese president but failed to challenge Mr Hu on the imprisonment of Liu

Xiaobo the democracy activist who was awarded this years Nobel Peace prize and raise the

issue of human rights81

80

httpwwwchinaorgcne-white200305269htm 81

httpwwwtelegraphcouknewsworldnewsasiachina8107148UN-Secretary-General-pushes-China-on-human-

rightshtml

UNHRC 23 of 44

5 November 2011 Yeqing Ji from Shanghai China will most likely not be able to have children

after she said two forced abortions physically impaired her uterus82

8 September 2011 The Chinese government has renewed Googlelsquos license to allow it to

continue operating its local website in the country83

13 November 2011 Seven months ago

Chinese police detained the countrylsquos most prominent artist Ai Weiwei at the airport and drove

him to a hidden location It was the beginning of what is to be a two-and-a-half month nightmare

for the architect and sculptor who is also a former darling of the Communist Party who later

turned into an outspoken government critic Ai was held on vague charges of economic crimes

was kept in isolation and subjected to Kafka-esque interrogations84

April 19 2011 Amnesty International a 21-year-old monk Phuntsog set himself on fire in an

apparent anti-government protest in March 2011 Instead of putting out the flames Chinese

police beat the young monk creating huge resentment in the monastery85

At least 11 ethnic

Tibetans have been detained for protesting against the event and against government policies

They are at risk of torture and other ill-treatment86

29 May 2011 300 Tibetan monks detained in Kirti monastery by Chinese security forces87

15 September 2011 Chinese Uighurs economic fears

Amid ethnic tensions minority regards modernization plans in Xinjiang as favoring Han Chinese

migrants88

20 November 2011 Another of Chinalsquos minorities the Hui Muslims in Ningxia do not feel

stigmatized

―There is an important reason why Hui and Han Chinese get along with each other Unlike

Muslims of the other ethnic minorities like Uighur Kazakh Kyrgyz and Tajik the Hui Muslims

speak Mandarin just like the Hans89

82

httpabcnewsgocomBusinesswoman-china-forced-abortions-leaves-unable-

childrenstoryid=14880884Tsia7LIk6so 83

httpwwwbbccouknewsbusiness-14832392 84

httpwwwthedailybeastcomnewsweek20111113ai-weiwei-speaks-out-on-his-detentionhtml 85

httphradvorgaggregatorsources10 86

httpwwwamnestyorgenlibraryassetASA170212011end75f7611-be66-4d5a-9391-

c80c43501d56asa170212011enhtml 87

httphumanrightshouseorgArticles16503html 88

httpwwwaljazeeracomvideoasia20110920119158016969449html 89

httpwwwtodayszamancomnews-263322-chinas-hui-muslims-do-not-feel-stigmatizedhtml

UNHRC 24 of 44

Conclusion

The United Nations Human Rights Council at LUMUN 2012 will be looked upon to provide a

framework for the resolution of these issues in a universal context The scope of the issues

should be expanded and applied to countries other than China The committee will have to make

recommendations which have universal application and resolve all aspects of the issue

comprehensively For any queries related to the study guide please do contact either (or both)

the committee directors at the given addresses

UNHRC 25 of 44

Topic Area B Abolishing the Death Penalty

Introduction to the Topic Area

The death penalty is formally defined as the execution of an offender sentenced to death after

conviction by a court of law of a criminal offenselsquo90

The concept of a capital crime is subjective

and states have made use of this practice in response to multiple forms of crime The use of the

death penalty has produced much controversy with regard to its apparent violation of

fundamental human rights as delineated in the Universal Declaration of Human Rights and

subsequent human rights charters and treaties It is asserted that the use of death penalty is in

contravention to the peopleslsquo right to life promised to every individual under Article 3 of the

Declaration91

Moreover Article 2 of the Charter of Fundamental Rights of the European Union

lucidly bars the imposition of death penalty as a form of punishment92

Arguments against the

use of death penalty are also made on the grounds of inhumane methods which are employed to

see out the process Historically multiple methods have been used which include death by

hanging severing of the head lethal injection shooting and electrocution93

94

As a response states have made keen efforts to abolish

the death penalty particularly in the last two decades as

can be interpreted from the graph on the right which

represents the number of states that have abolished the

death penalty Countries belonging to the European

region with the exclusion of Russia and Belarus have

sought to revoke the use of the practice The death

penalty is most commonly seen to be a formal practice

in most of the developing countries The trend is

apparent in Latin America Africa and Asia

96 countries have formally abandoned the use of death penalty 58 countries allow the use95

Other states have abolished the penalty in practice but the laws remain in place for the

imposition of the penalty as a response to certain crimes The imposition of the death penalty has

90

httpwwwbritannicacomEBcheckedtopic93902capital-punishment 91

httpwwwunorgendocumentsudhr 92

httpwwweuroparleuropaeucharterpdftext_enpdf 93

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffle

re-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 94

httpwwwdeathpenaltyinfoorgmethods-execution 95

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf

Figure 1 (Drag to enlarge)

UNHRC 26 of 44

seen a decline over the recent years with a fall in the number of executions that take place

annually It would however be incorrect to assume that the practice is not prevalent or widely in

effect Amnesty International reported that at least 2024 new death sentences were imposed in 67

countries in 2010 Moreover there were at least 17833 people sentenced to death worldwide at

the end of 201096

Again these are minimum figures which are the safest that can be inferred

from the given research There were 527 known executions carried out in 2010 globally97

This

figure however does not include the number of executions that took place in China where

analysts believe that more than a thousand people were put to death in the past year

The statistics represent the number of people executed through capital punishment One way to

formally define capital punishment is to regard it as the state sanctioned killing of an individual

through a judicial process as a punishment for a crime (defined as a capital crime by the state)98

Capital punishment is the most obvious and prevalent manifestation of the death penalty It is

often perceived as a statelsquos right in order to preserve law and order against any individual who

engages in serious crimes that threaten other individuals or the state Those who advocate against

the use of capital punishment label it as a symptom of a culture of violence not a solution to

itlsquo99

The controversy surrounding the topic is based on the legal ethical and moral acceptability

of the statelsquos right to an individuallsquos life The debate entails several social and economic factors

some of which will be reviewed in closer detail in the relevant section of this guide

One of the most striking aspects related to the issue is the imposition of the capital punishment

on juveniles The sentencing of juveniles to death is in clear breach of international law The

morality and validity of such a practice is often called into question and has been put under

relentless scrutiny despite all of which the practice is still carried out in a number of countries

Historically the United States China and Iran have the worst records relating to juvenile death

sentences100

The study guide also includes a separate section for the case of juveniles in which

the legal and social aspects of the problems are detailed

As stated states have made use of the death penalty to punish crimes of varying natures The use

of the death penalty is reserved for only the most seriouslsquo crimes as put forth in international

law101

The notion of a capital crime however is a subjective one states that have doled out

death sentences have defined it differently In certain countries the death penalty is only used to

charge criminals accused of war crimes In other countries the penalty is reserved for crimes like

96

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf 97

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010 98

httpusersrcncommwooddeathpenhtml 99

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 100

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 101

httpwwwunorgdocumentsecosocdocs1995e1995-78htm

UNHRC 27 of 44

murder rape or even robbery States also use the death penalty against individuals who are guilty

of treason The issue however is that many states practicing the death penalty impose the

punishment even when the crimes do not meet the threshold for the aforementioned most

seriouslsquo crimes The ability of states to define what constitutes as a capital crime has led to states

abusing their powers as has been observed in the sentences ordained by military courts

Moreover even the radicals who make the argument of the punishment fitting the crime agree

that in many instances individuals have been executed for softlsquo crimes crimes that were

certainly not tantamount to charges of murder or crimes against humanity The issue of apparent

violations of human rights is further exacerbated in these instances The study guide will discuss

the universal crimes that have resulted in the awarding of the death penalty and examine the

issue further The committee will be expected to discuss the feasibility of drawing up an

international definition of crimes which in isolated instances perhaps may be appropriate for a

sentence like the death penalty

Another pertinent aspect surrounding the debate is that of extrajudicial killings The execution of

a person by state authorities without the authority of a judicial proceeding is termed as an

extrajudicial killing Many states have used extrajudicial killings to establish their authority and

order without having to wade through the legal process By doing so they have deprived scores

of people of their fundamental right to free and fair trials Governments have also employed this

tactic to exercise political aggression and to suppress dissent A particular point of concern is the

fact that some states have made use of these killings even when they have officially revoked the

imposition of the death penalty Extrajudicial killings are carried out persistently in many

countries ndash the list includes countries like Iran Iraq Israel Philippines102

Most recently the

killing of Anwar al-Awlaki and Samir Khan in Yemen by a sanctioned National Security Council

move by the USA was an example of states embarking on such paths to eliminate threats to

national securitylsquo103

102

Multiple citations for each country can be found in the second paragraph article titled Extrajudicial killinglsquo on

Wikipedia 103

httpwwwtelegraphcouknewsworldnewsbarackobama7564581Barack-Obama-orders-killing-of-US-cleric-

Anwar-al-Awlakihtml

UNHRC 28 of 44

Wrongful convictions lead many to believe in the inherent incapacity of the death penalty to

serve justice On September 21 2011 US citizen Troy Davis was executed in Georgia after

which seven of the nine witnesses who testified against him in the case that led to his execution

recounted or retracted their evidences A petition with nearly one million signatures was put

forth to reconsider his case it was rejected On the same day a 17 year old boy was publicly

hanged in Iran for killing a popular athlete his justification based on self-defense was ignored

Also on the same day a Pakistani national was executed in China on grounds of drug trafficking

an offence that does not often result in capital punishment The need for the resolution of this

issue is pressing and the committee needs to deal with all aspects of the problem in a

comprehensive and enduring manner104

Capital Punishment

In 2010 23 countries implemented capital punishment A total of 527 executions (plus the 1000+

carried out in China alone) were known to have taken place with Iran Yemen USA and North

Korea meting out a significant number of sentences105

The figure is lower than the records

computed for years past There are more states which are now abolitionist either in law or in

practice with regard to the imposition of the punishment Gabon was officially the last country

to rescind the practice while bills calling for an end to capital punishment have been presented

to parliaments in Lebanon Mali Mongolia and South Korea106

Renewed efforts are

104

httpwwwamnestyorgennews-and-updatesus-executes-death-row-prisoner-troy-davis-2011-09-21 105

httpwwwguardiancouknewsdatablog2011mar29death-penalty-countries-world 106

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010

UNHRC 29 of 44

simultaneously being made on the international front to implement laws against capital

punishment A third resolution establishing a moratorium on the use of death penalty passed the

UN General Assembly on December 21 2010107

Despite the increasing momentum towards an eventual elimination of the practice the number of

executions taking place annually is a cause of major concern Advocates of the death penalty

assert that the practice is an effective means of deterring crime in society Public executions are

often held in Iran Afghanistan and Palestine for example to demonstrate the fate awaiting

those who commit similar crimes108

Arguments are made on the grounds of justice that it is

proper and fair to take an eye for an eye and a life for a life and that some individuals deserve

it for the crimes they commit

Those opposing the practice question the morality of an action sanctioned by the state which

endorses deprivation of the right to life a fundamental human right under the Universal

Declaration of Human Rights109

There are inescapable flaws within legal systems which are

aggravated by discrimination prosecutorial misconduct and inadequate legal representation

Moreover the risk of executing the innocent can never be eliminated110

An alternative is

presented in the form of imprisonment for life without parole which results in a parallel debate

is imprisonment for life a viable surrogate to the practice of death penalty A thread from this

debate also relates to the economic feasibility of carrying out a death sentence as opposed to the

feasibility of imprisonment for life

Deterrence

Capital punishment is often propagated as an adequate approach in the deterrence and prevention

of crime The logic is that if murderers are sentenced to death potential murderers will think

twice before killing for fear of losing their own life The deterrence theory presumes that the

once the punishment for a certain crime is established the criminal by committing the crime

voluntarily assumes the risk of receiving the prescribed punishment for the crime Only when the

most severe punishment has been set will there be a possibility of an individual evaluating their

actions in light of the consequences111

107

httpwwwundemocracycomA-RES-62-149pdf 108

httpwwwamnestyorgennews-and-updatessharp-rise-public-executions-iran-executes-first-juvenile-

offenders-2011-2011-04-27 109

wwwunorgendocumentsudhr 110

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 111

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 30 of 44

The death penalty it is asserted ensures that convicted criminals do not offend again moreover

it is deemed to be a just penalty for atrocious crimes It is further alleged that many criminals

who are set free even after lengthy sentences regress and go on to commit heinous crimes

Therefore there should never be the possibility of a release clause112

The deterrence theory is modeled on the grounds of human psychology logic and rationale As a

professor of jurisprudence Ernest van den Haag PhD wrote ―Common sense lately bolstered

by statistics tells us that the death penalty will deter murder if anything can People fear nothing

more than death Therefore nothing will deter a criminal more than the fear of death These

statements were further validated by a US Supreme Court Justice who said on record that

Prima facie the penalty of death is likely to have a stronger effect as a deterrent to normal

human beings than any other form of punishmentlsquo113

Numerous studies have been conducted on

the subject with varying results One of the most established studies was conducted in USA

using a panel data set of over 3000 counties from 1977 to 1996 which concluded that on

average one death sentence resulted in 18 fewer murders114

Delegates will be expected to be

familiar with other similar studies

These studies are commonly refuted as not crediblelsquo by opponents of the capital punishment

who also deny the correlation between crime and death penalty as a fabricated relationship which

cannot be empirically established115116

A study of the relationship between capital punishment

and the incidence of murder was conducted for the UN in 1988 and updated in 2002 The

conclusion was ―The investigation has not provided scientific proof that executions have more

deterrent effect than life imprisonment It is unlikely that such evidence will ever come

Deterrence hypothesis finds no support in the survey117

Another counter-argument asserts that crime is still a persistent feature of the societies that

continue to award the death penalty while many of the abolitionist states enjoy low crime rates

This can be evidenced by comparing the crime rate in USA or Pakistan with that of Canada or

some European state In Canada for example the homicide rate per 100000 fell from a peak of

309 in 1975 the year before the abolition of the death penalty for murder to 241 in 1980 and

in 2003 27 years after abolition the homicide rate was 173 per 100000 44 per cent lower than

in 1975118

112

httpwwwdeathpenaltyinfoorgfacts-about-deterrence-and-death-penalty 113

httpdeathpenaltyproconorgviewresourcephpresourceID=002000 114

httpdeathpenaltyproconorgsourcefilesThe20Deterrent20Effect20of20Capital20Punishmentpdf ndash

Delegates should carefully examine certain parts of this document to establish the credibility of the assertions made

They should also invest in trying to locate studies that refute the assertions made in this and similar studies 115

httpwwwdeathpenaltyinfoorglaw-enforcement-views-deterrencelawenforcement 116

httpwwwdeathpenaltyinfoorgDonohueDeterpdf 117

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 118

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml

UNHRC 31 of 44

The lack of evidence on the production of a unique deterrent effect points to the danger of

relying on the deterrence hypothesis as a basis for public policy on the death penalty

Retribution amp Morality

An important terminology that delegates need to familiarize themselves with is that of

―retributivism119

It is defined as ―a policy of criminal justice that sponsors the punishment of

criminals in retribution for the harm they have inflicted120

Criminals deserve to be punished in

proportion to the gravity of their crime regardless of whether the victim or anyone else desires

it we may all deeply regret having to carry out the punishment but consider it warrantedlsquo is

what many say in defense of the theory121

The need for the establishment of a visibly just state arises from the potential risks of not having

one As has been visible in many developing countries with shaky legal systems when criminals

are not adequately punished for their unlawful behavior the public takes the law into its own

hands and deals out vigilante justice It is asserted that retributivism is essential for a functioning

society where individuals respect the supremacy of law

The concept of retribution in society is also grounded in religious beliefs The concept of an eye

for an eye has been a part of all three Abrahamic traditions However in the modern world it is

Islamic nations that still retain the practice based on these grounds Similar traditions can be

found in Hinduism Christianity and Buddhism as well as other religions in different parts of the

world In many non-secular countries the constitutions and state laws are derived from religious

doctrines

Opponents dismiss this aspect of the argument as being emotionally charged with little rational

logic to support the contention They claim that the establishment of capital punishment gives

birth to a culture of violence endorsed by the state It perpetuates the cycle of aggression and

brutality something which the state should be actively inhibiting not endorsing

Wrongful Convictions

The death penalty carries with it the danger of wrongfully convicting an innocent person for

crimes he did not commit There is the potential for capital punishment to evolve into sheer

miscarriage of justice as in certain circumstances states are often seen to rush the trials and

convict the accused hastily This practice takes foremost apparently in military courts often in

119

Cavadino M amp Dignan J (1997) The Penal System An Introduction (2nd ed) p 39 London Sage 120

httpdictionaryreferencecombrowseretributivism 121

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 32 of 44

the developing or lesser-developed countries where the system of law is not properly established

It is not however exclusive to these countries Examples can be drawn from countries like

Philippines Thailand Iran and Palestine to name just a few where executions are carried out at

alarming pace removing the possibility of reviews

On 15 August 2004 Atefah Rajabi Sahaaleh was hanged in a public square in the Iranian city of

Neka Her death sentence was imposed for adultery and crimes against chastity122123

Atefah

was executed a week after the trial was run Following the execution the Judge for the case was

arrested for investigation by the Intelligence Ministry The media reported that in addition to the

confession of his rape of Atefeh Judge Rezai who served as judge jury and executioner also

confessed to torturing her during interrogations to extract names of others she had relations with

No transcripts from court proceedings were recorded The State alleged that Atefah was 22 at the

time of her execution A witness later claimed The judge just looked at her body because of

the developed physique and declared her as 22124

ndash her birth certificate revealed she was born

in 1988 Furthermore Atefah did not have access to a proper defense where she could contest

charges leveled against her This is one example of many such cases of miscarriage of justice

Something that recurs in these cases is the failure of the police or prosecuting authorities to

prevent the use of unreliable witnesses the misuse of evidence or confessions and the provision

of inadequate defense representation The advent of DNA profiling and the use of it as positive

evidence in criminal cases has resulted in the exoneration of multiple death row inmates on

grounds of forensic evidence or lack thereof Since 1973 138 people have been released from

death row in the United States after it was proven that they were innocent125

In 2009 Paul

House was cleared of murder and exonerated in Tennessee USA after having served 22 years

on death row His innocence was proclaimed in light of substantial additional DNA testing and

further investigationlsquo 126

Amnesty International has noted examples of wrongful convictions from elsewhere as well

including Jamaica Japan China Nigeria and Tanzania127

Paul G Cassell a former law clerk to

the Chief Justice of USA stated the mistaken release of guilty murderers should be of far greater

concern than the speculative and heretofore nonexistent risk of the mistaken execution of an

innocent personlsquo highlighting the case made by those who advocate the death penalty even in

light of wrongful convictions128

122

httpwwwcosmolearningcomdocumentariesexecution-of-a-teenage-girl1 123

httpnewsbbccouk2hi5217424stm 124

httpnewsbbccouk2hi5217424stm 125

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 126

httparticlescnncom2009-05-13justicetennesseeexonerated_1_death-row-inmate-dna-evidence-house-

arrest_s=PMCRIME 127

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 128

httpdeathpenaltycurriculumorgstudentcaboutargumentstestimony3bhtm

UNHRC 33 of 44

Alternative to Death Penalty

All abolitionist states have reverted to the practice of sentencing criminals to life imprisonment

(some without parole) which is also termed as death by incarceration Widely regarded as a more

humane course of action life imprisonment is also alleged to be a more economical practice

While ensuring public safety by keeping criminals away from society this system also saves the

lives of innocent people who have been falsely or wrongfully convicted The setup inhibits and

curbs the cycle of violence while retaining the deterrence factor it is strongly asserted

Advocates for the death penalty are averse towards life imprisonment for a number of reasons

They cite the unreliability of the system as one of the flaws which impedes the possibility of

such a sentence being successful A certain James Moore serves as a valid example in this case

In 1962 James Moore raped and strangled 14-year-old Pamela Moss The victimlsquos parents opted

out of capital punishment for Moore and he was instead sentenced to life in prison without

parole Twenty years later a change in sentencing laws in 1982 renders James Moore eligible for

parole every two years129130

Kenneth McDuff is another example McDuff was convicted and sentenced to life imprisonment

Years later due to the issue of overcrowding in prisons McDuff was released following which

he killed eight more people McDufflsquos example is of an individual from a developed country

with an established legal system in place131

Overcrowding is a feature of prisons in developing

or lesser developed countries In many such states criminals have also been known to easily

break out from penitentiaries

The economic aspect of the debate is murky at best There is a lack of empirical data on the

subject which is why the arguments of both these sides cannot be settled beyond doubt

Advocates of capital punishment insist that the overall costs of the practice are far lesser than the

costs of housing an inmate for a lifetime132

They also suggest that the life imprisonment allows

criminals to conceive new habeas corpus petitions which on legal grounds cannot be rejected

automatically resulting in more trials

On the other hand substantial arguments are made which stress that the cost of legal proceedings

in capital cases is in truth more than that of other cases States and nations spend a significant

portion of the taxpayerlsquos money in meting out such punishments133

Delegates when addressing

this portion of the debate will need to be aware of the financial aspects of the issue as it forms

for many states an important part of whether capital punishment should be revoked or

not

129

httpwesleylowecomcphtmldeter 130

httpwwwnytimescomkeywordparole 131

httpwesleylowecomcphtmldeter 132

Ibid ndash view section titled Capital Punishment and its costslsquo 133

httpwwwamnestyusaorgour-workissuesdeath-penaltyus-death-penalty-factsdeath-penalty-cost

UNHRC 34 of 44

Imposition of Death Penalty on Juveniles

The prohibition on the death penalty for crimes committed by juvenile offendersmdashpersons under

age 18 at the time of the offensemdashis well established in international law specifically in the

Convention on the Rights of Child

ldquoNo child shall be subjected to torture or other cruel inhuman or degrading treatment or

punishment Neither capital punishment nor life imprisonment without possibility of release shall

be imposed for offences committed by persons below eighteen years of agerdquo134

- Article 37(a) Convention on the Rights of Child

ldquoSentence of death shall not be imposed for crimes committed by persons below eighteen years

of age and shall not be carried out on pregnant womenrdquo135

- Article 6(5) International Covenant on Civil and Political Rights

The treaties are a unanimously agreed set of non-negotiable standards and obligations By

acceding to the treaties and ratifying them governments commit to protecting and ensuring

childrens rights and to holding themselves accountable for this commitment before the

international community

Even though the practice of capital punishment on juveniles is relatively rare however in clear

contravention of international law nine countries have executed offenders who were juveniles at

the time of their crimes between 1990 and 2005136

These countries include the Peoples Republic

of China (PRC) the Democratic Republic of the Congo Iran Nigeria Pakistan Saudi Arabia

Sudan the United States and Yemen137

The USA has since moved to implement a ban on capital

punishment for juveniles However in most other countries of the preceding list the practice is

still enshrined in the judicial system Iranlsquos record in particular has been abominable over the last

decade It has carried out 39 executions of persons under the age of 18 since 2005 Presently

over a hundred individuals are placed on death row for crimes committed as juveniles The

executions of Mahmoud Asgari Ayaz Marhoni and Makwan Moloudzadeh became international

symbols of Irans child capital punishment and the judicial system that hands down such

134

httpwww2ohchrorgenglishlawcrchtm 135

httpwww2ohchrorgenglishlawccprhtm 136

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf - This document by the Human Rights Watch

called The Last Holdoutslsquo is a good summary of juvenile executions and should be reviewed 137

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 - Contains a list with

statistics and details of countries which have allowed the imposition of death sentence to juveniles

UNHRC 35 of 44

sentences138139140

Saudi Arabia and China too have questionable records that need to be

scrutinized further

While regional treaties and charters usually substantiate international law the Arab Human

Rights Charter of 2004 is unique among regional and international treaties in that the ban on the

juvenile death penalty in it is not absolute but merely optional141

Furthermore national laws in states that observe such a practice are in violation of

international legally-binding charters In Iran and Saudi Arabia laws usually treat a child the

same way as an adult criminal offender would be treated Article 10(3) of the International

Covenant on Civil and Political Rights emphasizes the need for demarcation between the

handling of children and that of adults in stating ―Juvenile offenders shall be segregated from

adults and be accorded treatment appropriate to their age and legal status142

The definition of a child in these Muslim states is unclear as adulthood is associated with

attainment of puberty which is a relative concept The Committee on the Rights of the Child in

January 2005 censured the Saudi government for its practice of imposing the death penalty on

juveniles terming it a serious violation of the fundamental rights The committee was deeply

alarmed over the discretionary power judges hold to treat juveniles as adults as was stated in

the committeelsquos report Iran too was strongly condemned following the release of an

international report highlighting the dire situation in Iran by the International for Human Rights 143

138

httpwwwfoxnewscomstory0293329798200html 139

httpnewsbbccouk2himiddle_east7130380stm 140

httpenwikipediaorgwikiCapital_punishmentIran 141

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 142

httpwww2ohchrorgenglishlawccprhtm 143

httpwwwfidhorgIMGpdfRapport_Iran_finalpdf

UNHRC 36 of 44

On August 19 2008 Iranian authorities executed Seyyed Reza Hejazi at Isfahan Central Prison

for his role in a murder committed in 2003 when he was 15 Hejazi was tried as an adult by

Branch 106 of the Isfahan General Court even if he did not qualify as one under international

stipulations and sentenced to death on November 14 2005144

In Saudi Arabia Mu`id bin

Husayn bin Abu al-Qasim bin `Ali Hakami was executed on July 10 2007 for a murder he

allegedly committed three years earlier when he was 13 years old145

The judges in these states

because of the implementation of the Sharialsquo law have a large amount of discretion with regard

to their rulings This discretion is often abused in the interrogation and judicial proceedings In

Pakistan authorities hanged Mutaber Khan in Peshawar Central Prison on June 13 2006 on

charges of murder of five people The fact that he was held in the juvenile wing of Peshawar

Central prison and the evidence presented by the accused confirming that his age was below 18

at the time of the killings were not taken into account during the trials and Mutaber was charged

as an adult in the case146

While the above does not cover exhaustively the practice of capitally punishing juveniles the

committee is expected to be well read on the matter The committee will be required to devise

ways to strictly apply the existing international law on the subject to curtail further deaths of

juveniles by states A series of recommendations on better implementation of international

covenants will be expected from the committee Delegates at UNHRC will also have to

familiarize themselves with the stipulations in the national laws of countries practicing juvenile

death penalties (Iran Saudi Arabia Pakistan Nigeria Sudan Yemen and UAE among others) to

discuss how these states are constitutionally able to bend international law and mete out the

illegal punishments

144

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 145

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 146

See FIDH and Human Rights Commission of Pakistan ―Slow march to the gallows and ―Condemned Prisoner

Executed Dawn Newspaper Karachi June 14 2005 httpwwwdawncom20060614nat16htm

UNHRC 37 of 44

Universality of Laws Incurring the Death Penalty

In countries which have not abolished the death penalty capital punishment may be imposed

only for the most serious crimes it being understood that their scope should not go beyond

intentional crimes with lethal or other extremely grave consequences

- Safeguards guaranteeing protection of the rights of those facing the death penalty147

Laws incurring the death penalty or capital crimes have certain uniformity the world over This

is of course barring states that are religiously affiliated and whose law systems are not secular

in nature The list of capital crimes for those states with non-secular legal systems is slightly

different The Human Rights Commission had decided that the imposition in the State party of

the death penalty for offences which cannot be characterized as the most serious including

apostasy committing a third homosexual act illicit sex embezzlement by officials and theft by

force are incompatible with Article 6 of the Covenant Economic offences including

embezzlement drug related offences political offences and robbery were also referred to148

The reason why looking into capital crimes and trying to garner a global impression of them is

important is that the death penalty can only realistically be abolished in a piecemeal way This

process will entail shortening the list of capital crimes The UN formally notes that ―in order

fully to guarantee the right to life provided for in article 3 of the Universal Declaration of

Human Rights the main objective to be pursued is that of progressively restricting the number of

offences for which capital punishment may be imposed with a view to the desirability of

abolishing this punishment in all countries149

The first established death penalty laws date as far back as the Eighteenth Century BC in the

Code of King Hammaurabi of Babylon which codified the death penalty for 25 different crimes

By the 1700s 222 crimes were punishable by death in Britain including stealing cutting down a

tree and robbing a rabbit warren In the 19th

century the death penalty was eliminated for over

100 of the 222 crimes punishable by death 150

In modern times the UN Special Rapporteur on

extrajudicial summary or arbitrary executions has stated that the death penalty should be

eliminated for economic crimes and drug-related offences and that the restrictions to its use

―exclude the possibility of death sentences for so-called victimless offences ndash including acts of

treason espionage and other vaguely defined acts usually described as crimes against the Statelsquo

or disloyaltylsquo and ―actions primarily related to prevailing moral values such as adultery and

prostitution as well as matters of sexual orientation151

147

httpwww2ohchrorgenglishlawpdfprotectionpdf 148

httpwwwunhchrchtbsdocnsf0bc310a747155dff88025655300537faeOpendocument 149

General Assembly resolution 2857 httpwwwunodcorgpdfcompendiumcompendium_2006_part_01_05pdf 150

httpdeathpenaltycurriculumorgstudentcabouthistoryhistoryPDF 151

httpswwwabofimedia24259report10pdf

UNHRC 38 of 44

Contrary to the made recommendations even political dissent warrants a death sentence in

several countries most notably in China and Iran In 2010 nearly 20 Kurdish people were

executed for political offences in Iran The country is known for keeping dissent especially from

the Kurds suppressed Most are executed on the grounds of moharebeh or enmity against God

Moreover challenging the power of the Ayatollah is also punishable by death These charges are

neither explicit nor in line with international guidelines over what crimes are punishable

capitally In Iran judges must handle such cases carefully as Iranian law provides for only one

punishment if an individual is found to be guilty of treason Libya too thwarts political dissent

with firm laws in place for punishing by death those who illegally form groups organizations or

associations against the state152

Saudi Arabia too is worth note for its vaguely phrased laws governing capital punishment

Intentional murder and crimes that spread ―mischief in the land (Fasad fil-ardh) merit death In

2010 the government announced that it had executed 26 people all by beheading Crimes that

―spread mischief include witchcraft and sorcery153

How is one convicted of witchcraft in the

21st century What can the international community do when regarding countries such as these

Treason arguably along with murder is the capital crime that has yet to be phased out by many

countries In some such as Brazil treason during warfare is the only crime for which a person

can be sentenced to death In the Gaza Strip under Hamas any sort of cooperation with Israeli

forces during military actions is also punishable by death In others including Algeria Bahrain

Iran and Malaysia treason is punishable by death in all circumstances The United States too has

federal laws governing treason under which traitors ―shall suffer death154

Child sex abuse is another crime that is widely held to merit the death penalty In Russia for

example according to the Russian Public Opinion Research Center an overwhelming majority

consider the death penalty to be an acceptable punishment especially in relation to molestation

155 In 2009 however Russias Constitutional Court effectively abolished the death penalty by

extending indefinitely a 13-year-old moratorium on capital punishment156

Indonesia has some of the strictest penalties for drug related crimes in the world Roughly half of

those on death row are incriminated with drug-related charges157

In 2008 though the most high

profile executions were of terrorists Three of those found responsible for the 2002 Bali

bombings were executed by shooting158

Generally speaking however a significant proportion of

152

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 153

httpwwwstategovgdrlrlshrrpt2010nea154472htm 154

httpdeathpenaltyproconorgviewresourcephpresourceID=1172 155

httpenrianrutrenddeath_penalty 156

httpwwwreuterscomarticle20091119idUSLJ330478 157

httpwwwnytimescom20080711worldasia11iht-indo114421132html 158

httpnewsbbccouk2hiasia-pacific7718246stm

UNHRC 39 of 44

the executions or death sentences recorded (in 2010) in China Egypt Indonesia Iran Laos

Libya Thailand United Arab Emirates and Yemen were for drug-related offences In December

2010 the amended Anti-Narcotics law came into force in Iran extending the scope of the death

penalty to include additional categories of illegal drugs (for example crystal meth) possession

of which became punishable by death Also around the same time the National Assembly of

Gambia voted to extend the scope of the death penalty by making the possession of more than

250g of heroin or cocaine an offence punishable by death159

Several states allow for the death penalty for crimes of blasphemy and other crimes for

nonviolent expression and association In Pakistan Aasia Bibi a Christian mother of five was

charged with blasphemy and sentenced to death after a trial largely believed to be unfair on 8

November 2010 She is currently on death row The country is also noted for its laws concerning

capital crimes The list includes 27 crimes most of which go beyond the notion of ―most serious

crimes as recommended by the International Covenant on Civil and Political Rights Extra-

marital sex and blasphemy are examples of some capital crimes in the country In December

2007 Pakistan voted against a United Nation General Assembly resolution for a moratorium on

the death penalty The year before however the nation amended its law on rape and adultery

charges which are no longer punishable by death160

As far back as 1989 recommendations have been made as to how to abolish the death penalty

Member states (of the UN) have been urged ―to publish for each category of offence for which

the death penalty is authorized and if possible on an annual basis information about the use of

the death penalty including the number of persons sentenced to death the number of executions

actually carried out the number of persons under sentence of death the number of death

sentences reversed or commuted on appeal and the number of instances in which clemency has

been granted and to include information on the extent to which the safeguards referred to above

are incorporated in national law161

The committee must inspect how far this recommendation

has been adopted and should seek to rectify the weaknesses in the system of gradually

abolishing the death penalty Can a target year be designated by which crimes meriting the death

penalty could be made universal How can countries with non-secular legal systems be brought

into the fold of international law

159

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 160

httpwwwfiacatorgenIMGpdfdppakistan-enpdf 161

httpgraduateinstitutechfacultyclaphamhrdocdocsecosocresolutiondeathpen1989html

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 4: UNHRCFINAL

appropriate The guide leans towards providing examples of these viola-

tions and not many rationalizations of them That we feel is the domain

of your personal research

To conclude we truly hope all of you enjoy your time at LUMUN 2012 In

order for this to happen delegates must be cognizant of the topics under

review We encourage you to scrupulously research your stances and have

more than just a basic impression of what the topics entail Delegates are

expected to be aware of all updates with regard to the subject matter and

to treat the study guide as an introduction to the topics and not as a stand

-alone document In the process of deciding the topics researching for and

compiling the guide we have become increasingly involved with these is-

sues We hope that you reciprocate our levels of interest and show the

same level of enthusiasm Delegates you are welcome to approach either

of us with any queries that you may have

All the Best

Khadija Mahsud amp Sarim Zia

Committee Directors UNHRC

UNHRC 1 of 44

Introduction to the Human Rights Council

World War II saw some of the worst atrocities of human history It was in the aftermath of the

inability of the League of Nations to prevent international unrest and human rights violations that

the United Nations Charter was promulgated and the UN was set up in 1945 The foundational

premise from which the UNlsquos committees and councils derive their agendas is the protection of

fundamental human rights It is in this vein that the Human Rights Council (and the Commission

it replaced) performs the most integral of functions of the UN Subsequent to the Charter

another landmark document was drawn up in 1948 namely the Universal Declaration of Human

Rights It was the first explicit global expression of the worldlsquos commitment to upholding the

sanctity of human rights It is from the permanent and unprecedented potency of the Declaration

that all subsequent human rights conventions and treaties have been derived both within and

outside of the UN Together with the International Covenant on Economic Social and Cultural

Rights and the International Covenant on Civil and Political Rights it forms the International

Bill of Human Rights

It was through the UN Charter that the Commission on Human Rights was established in 1946

with the purpose of promoting and protecting rights internationally Even though the

Commission successfully achieved the creation of the Universal Declaration of Human Rights it

was repeatedly censured for lacking constructive discussion on human rights issues It was

allegedly used a medium to blame countries and settle political scores It was also critiqued for

being composed of member nations with questionable human rights records such as China Cuba

Zimbabwe and Sudan This among other things led to the replacement of the Commission with

the Council The Council was formed in 2006 through a resolution of the General Assembly

(Resolution 60251)1 that passed with an overwhelming majority The UN Secretary General at

1 GA Resolution 60251 httpwww2ohchrorgenglishbodieshrcouncildocsARES60251_Enpdf

UNHRC 2 of 44

that time Kofi Annan referred to it as a historic resolution that gives the United Nations a

much needed chance to make a new beginning in its work for human rights around the world

The main aim of the Council is to report to the General Assembly and work with it to improve

the situation of global human rights As a specialized body it focuses solely on human rights and

managing the protection and advancement of the human rights of all individuals It aims to

promote universal respect for the protection of all human rights and fundamental freedoms as

demarcated in the International Bill of Rights and the UN Charter for all without distinction of

any kind and in a fair and equal manner Recommendations are made on all documented human

rights violations including gross and systematic violations

The Council can only make recommendations on violations of human rights to the GA which in

turn can suspend the voting rights of the accused Council member The Council also makes

recommendations to the GA for further development of international law in the field of human

rights

The Council comprises of 47 members elected on a geographic quota-based criterion for three-

year-long terms Members elected into the Council by the General Assembly must ―uphold the

highest standards in the promotion and protection of human rights fully cooperate with the

Council and be reviewed under the universal period review mechanism during their term 2

A year after its inception the Human Rights Council designed Resolution 51 in order to provide

mechanisms through which human rights situations could be monitored3 The Resolution

included the Universal Periodic Review (UPR) system4 Through this human rights situations in

individual UN member states are reviewed and subsequently discussed by the entire Council

sitting as a working group through an interactive dialogue with the concerned State The Review

system incentivizes states to independently reform and review domestic human rights situations

prior to international inspection which facilitates the fulfillment of the aim of the Council

Human rights situations are meant to be reviewed on a rotational basis for all 192 UN member

states

2 httpwww2ohchrorgenglishbodieshrcouncildocspledgespdf

3 Resolution 51 httpapohchrorgdocumentsEHRCresolutionsA_HRC_RES_5_1doc

4 Please see the following for information on the UPR of China

httpwwwohchrorgENHRBodiesUPRPagesCNSession4aspx

UNHRC 3 of 44

Conference underway at the UNHRC in Geneva

The Resolution also included the delineation of Special Procedureslsquo established by the former

Commission on Human Rights to comprise of five-member working groups or individual

experts (commonly referred to as Special Rapporteurs) to monitor human rights violations in

thematic or country-specific loci There are currently five Working Groups on people of African

descent on Arbitrary Detention on Enforced or Involuntary Disappearances on the Use of

Mercenaries to Impede the Right of Peoples to Self-Determination and on Situations

(Confidential 1503 Procedure)5

The mandates of the Special Procedures are established and defined by the resolution creating

them Some of the thematic mandates adopted by the Council include the issue of human rights

defenders torture and minorities Special Rapporteurs often conduct fact-finding missions

in countries to investigate allegations of human rights violations They can only visit

countries that have agreed to invite them

The Council is currently headed by Laura Dupuy Lasserre of Uruguay It concluded its

eighteenth session in September 2011 The diversity of the political and social issues

encompassed in the agenda resulted in discussion of issues as varied as the situation in Libya on

one end and water sanitation on the other Also discussed was the situation of human rights in

Syria and the pattern of widespread systematic human rights violations by Syrian security and

military forces was examined The illegal blockade imposed on Gaza was also under focus

Furthermore the Council adopted the outcomes resulting from debate over the Universal

Periodic Review of sixteen countries

5 httpwww2ohchrorgenglishbodieschrworkinggroupshtm

UNHRC 4 of 44

While the Council faces criticism along the lines of that made against the Commission it has

come a long way from being the ―shadow on the ―reputation of the UN system as whole 6

6 httpnewsbbccouk2hiamericas6919268stm

UNHRC 5 of 44

Topic Area A The Great Firewall of China Review of the Human Rights Situation

Introduction to the Topic Area

The Peoplelsquos Republic of China is the worldlsquos most populous country with an estimated

population of 137 billion It is also one of the largest countries in terms of its land territory

China has firmly established itself as a premier world economic powerhouse It is the worlds

second-largest economy after the United States by both nominal GDP ($593 trillion) and

purchasing power parity ($1012 trillion) A single-party state governed by the Communist Party

of China it is widely acknowledged to be the worlds fastest-growing major economy and the

worlds largest exporter and second-largest importer of goods China is also a permanent member

of the UNSC and is a prominent figure in international politics It is a recognized nuclear

weapons state and has the worlds largest standing army with the second-largest defense budget

China is on par with the United States as a superpower and is soon even expected to supersede

the latter as the worldlsquos major politico-economic power

However Chinalsquos record in relation to human rights violations stands out for all the wrong

reasons China has been ruled by the Communist Party since it gained power and established the

Peoplelsquos Republic of China in 1949 It is believed to be in breach of numerous human rights and

its transgressions are a subject of much concern for the entire international community Some

issues like the Tiananmen Square of 1989 or that of Mr Liu Xiaobolsquos imprisonment have seen

the light of day and escaped the iron clutches of Chinese control on media However thousands

of other cases are never brought out into the open and are unable to draw international attention

which is why this year at LUMUNlsquos United Nations Human Rights Council the debate will focus

on China and its human rights violations The human rights abuses in focus will be Chinalsquos

violation of reproductive rights the case of internet censorship in China and the right to free

speech political prisoners in China and illegal detention the infringement of rights in the

conflict with Tibet and ethnic minority rights

The committee will not only be expected to discuss all aspects of the issues distinctly and in

extensive detail The committee will also be expected to be familiar with the Universal

Declaration of Human Rights all pertinent treaties resolutions and conventions

UNHRC 6 of 44

Chinarsquos Violation of Reproductive Rights

While reproductive rights are not specifically mentioned in the Universal Declaration of Human

Rights they are widely understood to be an extension of the freedom of choice and right to life

They are to be granted equally to all humans without discrimination of race sex language or

religion under the United Nations Charter7 Reproductive rights embrace certain human rights

that are already recognized in national laws international human rights documents and other

relevant UN consensus documents The World Health Organization defines reproductive rights

in the following manner

ldquoReproductive rights rest on the recognition of the basic right of all couples and individuals to

decide freely and responsibly the number spacing and timing of their children and to have the

information and means to do so and the right to attain the highest standard of sexual and

reproductive health They also include the right of all to make decisions concerning reproduction

free of discrimination coercion and violence8rdquo

Only if individuals have the freedom to be in control of their sexual and reproductive lives can

uninhibited social development occur However the lack of any binding international covenant

on the subject is a grave state of affairs Soft laws in the form of non-binding measures are

often deemed too inadequate in mounting a challenge against the issue The United Nations

Human Rights Council has the capacity to make recommendations for the revision of the

aforementioned fact and will be something that the committee should focus on

Reproductive rights include in their spectrum the right to legal or safe abortion the right to

access quality reproductive healthcare the right to birth control and the right to education in

order to make well-informed reproductive choices without any coercion or violence9 Equality

and equity for men and women is of paramount importance while addressing such civil liberties

so that individuals are able to make free and informed choices in all spheres of life without any

discrimination of any kind An essential aspect of the debate is related to the right to privacy that

all individuals must be granted in the process of their decision-making

The provision of such personal human rights is notably absent in China With the stern

implementation of the one-childlsquo policy10

China has undertaken extreme measures at the cost

of innumerable human rights to curtail population growth Despite having previously ratified the

7 Article 1 of the UN Charter httpwwwunorgendocumentscharterchapter1shtml

8 Gender and reproductive rights home page httpwwwwhointreproductivehealthen

9Amnesty International USA

httpwwwamnestyusaorgStop_Violence_Against_Women_SVAWReproductive_Rightspagedoid=1108242ampn

1=3ampn2=39ampn3=1101 10

Article 18 of Population and Family Planning Law of Peoplelsquos Republic of China

httpwwwunescaporgesidpsispopulationdatabasepoplawslaw_chinachina20pop20and20family20plan

ningpdf

UNHRC 7 of 44

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in

198011

which prohibits coercion in family planning policies12

China continues to dictate the

reproductive lives of all its citizens While the Law on Population and Family Planning states

that one child is mostly merely encouraged abusive or coercive enforcement measures such as

forced abortions compulsory sterilizations and the forced insertion of intra-uterine devices after

abortions or births are common practices that are regularly documented13

Forced sterilizations are a troublingly common practice in other regions as well Perulsquos case is

important in this regard with its program of achieving a target number of sterilizations each

year sometimes numbering in the hundreds of thousands Indeed the government would

sometimes bribe women to undergo these procedures in exchange for food and medicine for

their existing children 14

A system of enhanced monitoring strategies is often regarded as one of

the solutions to the problem

Another pervasive measure employed by the state is the routine monitoring of the menstrual

cycle of women particularly those in the child-bearing age by family planning officials15

Their

employment is often contingent upon compliance with the policy The right to privacy is

severely breached in all such instances Furthermore unmarried women are not allowed to have

children and even married couples must apply for a birth permit before they can legally bear

children16

Analyzing the statelsquos penetrating involvement and interference in the private spheres

of individuals in light of existing treaties and conventions will be one of the committeelsquos tasks

Women and couples who defy the policy face fines amounting to several yearslsquo salary have their

access to social services cut and are even imprisoned in certain cases Their so-called black

childrenlsquo have no legal status in China meaning these children are not granted any rights

whatsoever and do not have access to education health or any other services provided by the

State There are an estimated 6 million undocumented children in China most of which are

believed to be girls17

The cases of Mao Hengfeng and Chen Guangchengserve as prime examples demonstrating the

inhumane nature of penalties handed out by the Chinese state to violators of the one-child

policy18

Mao a human rights activist was sentenced to two and a half years in prison after she

refused to have an abortion Chen was a blind self-taught lawyer and activist who was charged

and punished with more than four years in prison after exposing abuses in the implementation of

the one-child policy

11

httpunifem-eseasiaorgChina 12

httptreatiesunorgPagesViewDetailsaspxsrc=TREATYampmtdsg_no=IV-8ampchapter=4amplang=en 13

httpwwwrhrealitycheckorgnode7926 14

httpwwwwebsteredu~woolflmforcedsterilizationhtml 15

Page 2 httpwwwcensusgovpopulationinternationalfilesspSP73pdf 16

httpfactsanddetailscomchinaphpitemid=128ampcatid=4ampsubcatid=15 17

Ibid 18

httpwwwrhrealitycheckorgnode7926

UNHRC 8 of 44

The appalling state of affairs is further augmented by the actions the Chinese state takes to

impede the birth of conceived children It implements very strictly a program of compulsory

sterilization and forced abortions to minimize the birth of a second child in a family While

abortion itself may be a debatable and controversial topic the subset of such a controversy in the

form of a state-regulated forced abortion is excruciatingly black and white The undeniable

cruelty of forced abortions is not a deterrent strong enough for the Chinese government and the

phenomenon exists widely in China In fact the policy leads to an estimated 13 million abortions

every year with many of those ordered by local authorities Infanticide is a common practice

especially in the rural areas of the country19

Women are abducted by the state and at the cost of

their lives are forced to undergo forced and mostly unsafe abortions

In October of 2010 China forced an eight-month pregnant woman into an abortion for breaching

the one-child policy20

Government officials entered Xiao Aiyinglsquos residence hit and kicked her

in the stomach and subsequently dragged her to the hospital where doctors injected her with a

lethal drug to kill her unborn baby Xiaolsquos husband later described the incident They held her

hands behind her back and pushed her head against the wall and kicked her in the stomachlsquo The

animalistic discourse adopted by the government officials is a testimony to Chinalsquos open rebuke

for human rights More recently Womenlsquos Rights without Frontierslsquo and China Aidlsquo reported

the death of a six-month pregnant woman during a forced abortion on October 12th

201121

Jihong Ma was seized by Family Planning Officials for a forced abortion having violated the

one-child policy

While the positive environmental impact of the prevention of 300 to 400 million births may be

cited22

it must be noted the one-child policy privileges only the wealthy who can afford the

fines for additional births and have better access to contraceptives and health care while

punishing the poor who are financially crippled by the fines incurred for additional births

Moreover this policy punishes the children of the poor because they are more likely to be kept

hidden from the state and thus will not have access to health care and the education they need to

climb out of poverty In this way social disparity is further perpetuated within the existing

framework

Another adverse byproduct of Chinas 30-year-old family planning policy is the gender

imbalance that is now manifested most clearly among those of marrying age The British

Medical Journal claimed that in 2005 there were 32 million more males than females (under the

age of 20) in China23

Even though China banned prenatal sex screening in 199424

illegal

ultrasound tests allow prospective parents to choose the gender they prefer for their only child

19

httpwwwdailymailcouknewsarticle-1322601China-forces-woman-abortion-EIGHT-months-breaching-

child-policyhtml 20

Ibid 21

httpwwwwomensrightswithoutfrontiersorgblogp=429 22

―Has Chinas one-child policy worked httpnewsbbccouk2hiasia-pacific7000931stm 23

British Medical Journal BMJ 2009 338b1211 httpwwwbmjcomcontent338bmjb1211full 24

―A Brief History of Chinas One-Child Policy httpwwwtimecomtimeworldarticle08599191286100html

UNHRC 9 of 44

creating a massive imbalance This imbalance will lead to drastic results in the next few years an

implication the committee needs to take in account when establishing a framework for

responding to the issue

The Human Rights Council conducted a Universal Periodic Review of China in 200925

to much

international consternation and surprise the report lacked substantial evidence implicating

China and was instead found to be extremely vague The role of the United Nations in defining

and drawing attention to the issue is of key significance and the Human Rights Council must

make recommendations on how the United Nations can enhance its capacity in laying the

foundations for the case The Council can also make recommendations regarding the changes

that can be brought about in the conduct of the Review and otherwise in order to be able to

contain the issue with lesser difficulty

The committee will be called upon to review reproductive rights in detail including the implicit

and explicit consequences on the people of China Access to reproductive healthcare is a

problem the world over and is often consciously violated by states Is there a way to control

these violations perhaps through devising enhanced monitoring strategies

The Case of Internet Censorship in China and the Right to Free Speech

Everyone has the right to freedom of opinion and expression this right includes freedom to hold

opinions without interference and to seek receive and impart information and ideas through any

media and regardless of frontiers26

- Article 19 Universal Declaration of Human Rights

Everyone shall have the right to freedom of expression this right shall include freedom to seek

receive and impart information and ideas of all kinds regardless of frontiers either orally in

writing or in print in the form of art or through any other media of his choice 27

- Article 19 (2) International Covenant on Civil and

Political Rights

The Peoplelsquos Republic of China along with being the most populous region of the world is also

home to the worldlsquos largest collection of internet users According to Xinhua Chinalsquos state-run

English news agency Chinalsquos internet user ship exceeded 500 million users as of September

201128

China is also the worldlsquos largest media market However despite these impressive

statistics it is both interesting and disturbing to note that the Republic is also remarkable for its

25

httplibohchrorgHRBodiesUPRDocumentsSession4CNA_HRC_WG6_4_CHN_3_Epdf 26

httpwwwohchrorgENUDHRDocumentsUDHR_Translationsengpdf The Universal Declaration of Human

Rights 27

httpwww2ohchrorgenglishlawpdfccprpdf The International Covenant on Civil and Political Rights 28

httpnewsxinhuanetcomenglish2010china2011-0929c_131167919htm

UNHRC 10 of 44

censorship history About a dozen government bodies control internet usage including the

Ministry of Public Security29

It has been noted that while the Chinese advertising industry is

booming this freedom does not extend to editorial content of newspapers30

This phenomenon of

Chinese censorship has been labeled in the mainstream global media as the Great Firewall of

China The Firewall serves to filter both the information coming into China as well as

information generated within the nation It is beyond being a clever pun a matter of concern for

the committee because of its repressive characteristic The State imposes such extreme

restrictions of freedom of information under the premise of protection of its nationalistic

interests However its negative connotation is much obvious and its resemblance to Orwelllsquos

Ministry of Truth and the notion of thought control is uncanny The Peoplelsquos Republic has signed

(not ratified) the International Covenant on Civil and Political Rights The committee can look

into the reasons behind this as well as assess current global membership to the covenant

Chinalsquos Internet censorship is centered on the control of political thought The Measures on the

Administration of Internet Information Services and the Provisions on the Administration of

Internet News and Information Services are the two main instruments used to do so31

Section 19

of the latter deserves special attention and casts its scope to prohibit activities that disrupt

―national policies on religion propagating evil cults and feudal superstitions jeopardize ―the

security of the nation harm ―integrity of the nationlsquos unity or ―the honor or the interests of the

nation among other things32

Regulations are so stringent that in 2008 only eight websites out

of a total of 430000 in Guangdong Province ndash Chinalsquos most populous region -- were able to

obtain news publication qualifications permits33

The Internet news and information services entities engaging in Internet news and information

services shall abide by the Constitution laws and regulations by persisting in providing service

for the people and serving socialism and guiding public opinion to protect the interests of the

nation and the public

- Article 3 Provisions on the Administration of Internet News and Information Services

The national report submitted by China to the Working Group for the Universal Periodic Review

in 2009 exhibited the governmentlsquos opinion that ―with such easy fast and diverse ways of

gaining access to information and expressing opinion including criticism of the Government

Chinese citizens are enjoying an entirely new lifestyle34

According to a white paper published

29

httpwwwhrworgreports2006china08063htm_ftnref28 30

httpnewsbbccouk2hiafricacountry_profiles1287798stm 31

httpwwwhrichinaorgcrfarticle3244 32

httpwwwchinaitlaworgp1=printampp2=051006175116 Provisions on the Administration of Internet News and

Information Services

Please peruse the following httpwwwhrworgreports2006china08063htm for commentary on the Provisions 33

Ibid 34

httplibohchrorgHRBodiesUPRDocumentsSession4CNA_HRC_WG6_4_CHN_1_Epdf

UNHRC 11 of 44

in 2008 by the Information Office of the State Council the internet is a ―crystallization of human

wisdom and ―Chinese citizens fully enjoy freedom of speech on the internet 35

Chinalsquos policies have relevance beyond

their contravention of what may seem to be

abstract principles China has jailed the

largest number of internet dissidents the

world over The case of Liu Shaokun for

example is a notable one He was a

teacher in Sichuan province which had

been hit in 2008 by a ravaging earthquake

around the time of the Summer Olympics

in Beijing China had been praised for

allowing reporters to openly cover the

earthquake Much of this openness however was part of a bid to soothe the international

community and project Beijinglsquos image as being the perfect venue for the Olympics Shaokun

however was sentenced to a year of labor for posting photographs of schools affected by the

earthquake He is among countless others who have been silenced36

When the Arab Spring flowered over the Middle East China cracked down on many social

networking sites to curb pro-democracy sentiments Amongst these was LinkedIn blocked over

the fact that one of its users had mentioned the possibility of a ―Jasmine Revolution in China37

The government blocks discussions about the Dalai Lama the Tiananmen Square protests and

the Falun Gong spiritual movement among other things In April of 2007 the Chinese version of

MySpace launched but lacked discussion forums centered on the aforementioned topics among

others including Taiwanlsquos independence In 2010 Google considered withdrawing its services

from China after a spur of cyber-attacks on email accounts of human rights activists 38

Google

and the government reached a deal whereby Google operated by Chinese guidelines within

mainland China However Google has a non-censored operation running in Hong Kong to

which it started routing customers in 2010 when it had concerns over Google accounts being

hacked by authorities It is testament to Chinese control that companies such as Google are

forced to enter the internet market on its terms Other instances of well renowned internet

websites being blocked or affronted include Twitter being banned during the 20th

anniversary of

the Tiananmen killings

The Committee to Protect Journalists ranks China as one of the worst internet censors The

Chinese government has been alleged of carrying out ―spear-phishing whereby spying software

disguised as legitimate emails is installed on computers that belong invariably to journalists

35

httpchinaorgcngovernmentwhitepapernode_7093508htm 36

httpcpjorgreports201012cpj-journalist-prison-census-iran-china-highest-14-yearsphp 37

httpwwwbbccouknewstechnology-12586462 38

httpnewsbbccouk2hi8460129stm Please look at this link for a timeline of Chinalsquos internet history

UNHRC 12 of 44

Victims included those writing about Liu Xiaobo the imprisoned human rights defender who

received the Nobel Peace Prize in 201039

According to statistics over 80 of Chinas netizens rely mainly on the Internet for news 40

With this state of affairs and increasing dependence the world over on the internet as a major

source of information discussing information monopolies is crucial To isolate a country of over

a billion and deny it access to information in the age of technology may not seem a palpable

physical or otherwise contravention of human rights however its consequences are

tremendous While one may think that media censorship is restricted to dictatorial regimes the

case of China serves to refute that line of thought Media censorship is prevalent even in

countries as varied as Indonesia India Mexico and Russia ndash all of whom rank relatively low on

the Press Freedom Index41

Looking at instances worldwide and the justifications given for

restricting rights will be a useful direction to take while researching

The following website is a useful tool to check the status of websites in China

httpwwwgreatfirewallofchinaorg

Political Prisoners in China and Illegal Detention

Political prisoners are those whose imprisonment is carried out arbitrarily on contestable and

controversial grounds Governments detain certain individuals on the basis of allegedly valid

grounds which are not always disclosed or declared Many detainees charge existence of ulterior

motives or extrajudicial reasons on part of the state for their detention The phenomenon of

political prisoners is often associated with closed regimes such as Burma and the DPRK

However the Peoplelsquos Republic of China too does not escape scrutiny when the topic of political

prisoners is at hand The phenomenon of political prisoners resonates so loudly in the

international spheres particularly because governments deny the existence of political prisoners

they claim that all detainees are lawfully held under criminal law The unfair detainment of

persons or the capture of people to serve the interests of a government contravenes many human

rights including freedom of expression association and assembly Indeed a countrylsquos political

imprisonment record is one of the crucial indicators of its human rights situation

Amnesty International views political prisoners as prisoners of conscience These are more

specifically ―people who have been jailed because of their political religious or other

conscientiously-held beliefs ethnic origin sex color language national or social origin

economic status birth sexual orientation or other status42

39

httpwwwcpjorgreports201105the-10-tools-of-online-oppressorsphp 40

httpchinaorgcngovernmentwhitepapernode_7093508htm 41

httpenrsforgpress-freedom-index-20101034html 42

httpwwwamnestyusaorgour-workissuesprisoners-and-people-at-riskprisoners-of-conscience

UNHRC 13 of 44

According to the (US) Congressional Executive Commission on China over 5000 cases of

politically or religiously motivated imprisonments have been made It has detailed documented

information on the status of 1452 of these prisoners and

notes that its information is far from complete and that the

true story of Chinalsquos political prisoners remains unknown 43

The plight of political prisoners in China is speculated upon

by various international organizations Among these is the

Human Rights Watch which has gone as far as labeling the

locations for holding political prisoners ―black jails and

―alleyways in hell Officially though the Chinese

government denies the existence of political prisoners Subsequent to Chinalsquos Universal Periodic

Review an outcome report was published which came under fire from various sides The Human

Rights Watch called the substance of the report to be ―manifestly so far removed from reality

that [it] would immediately discredit anybody that adopted them in a report 44

In the report of

the UNHRC Working Group subsequent to Chinalsquos UPR it is stated that the Chinese

government does not use ―state secrets to suppress human rights defenders 45

It is precisely this

situation that our simulation wishes to remedy discussion should be fact based

The ground realities are different In 2010 Chinese activist and human rights defender Mr Liu

Xiaobo was awarded the Nobel Peace Prize He was jailed by Chinese authorities for

distributing his ―Charter 08 a document that called for freedom of expression and of assembly

among other things The government incarcerated him for an 11 year time-period on the charge

of subversion Subsequent to the prize the Chinese government came down hard on other human

rights activists Indeed those celebrating the awarding of the prize to Mr Xiaobo were arrested

arbitrarily While distributing fliers celebrating the win many were imprisoned on the grounds of

―inciting subversion of state power The Report of the Special Rapporteur on the situation of

human rights defenders published in 2011 makes mention of these facts46

The Chinese

government labeled the award an ―obscenity It is vague allegations such as these that allow

governments to thwart dissidents As expected though according to the report of the HRC

Working Group No individual or press has been penalized for voicing their opinions or

views47

When discussing China and political prisoners it is important to mention the Falun Gong

movement It is a spiritual variant of Buddhism and originated in China on the basis of the

teachings of its founder Li Hongzhi The movement was supported within the Chinese

43

httpwwwceccgovpagesvictims20101010_PPD_AR10pdfPHPSESSID=705596c0e91f35e392e6f0ecbb78d6

7c 44

httpwwwhrworgennews20090610human-rights-watch-statement-upr-outcome-report-china 45

httpdaccess-dds-nyunorgdocUNDOCGENG0916299PDFG0916299pdfOpenElement 46

httpwww2ohchrorgenglishissuesdefendersdocsAHRC1644Add1_EFSonlypdf Page 63 47

httpdaccess-dds-nyunorgdocUNDOCGENG0916299PDFG0916299pdfOpenElement Para 71

UNHRC 14 of 44

officialdom initially However Falun Gonglsquos popularity within the masses as well as its

independence from the state and its spiritual teachings was soon perceived as a threat to the

government By the late 1990lsquos the Chinese government cracked down on the movement and

labeled it as a heretical organization Chinese legislation uses the expression ―Xiejiao zuzhi to

refer to a wide range of sectarian or unorthodox religious groups which do not meet official

approval The Falun Gong movement is included in this list48

The Falun Gong followers are the

worldlsquos largest group of prisoners of conscience The PRC often picks up practitioners and

accuses them of ―using an evil cult to destroy implementation of the law 49

China with its strict non-religious government did not take kindly to this new movement that

had garnered millions of followers both within China and internationally between 1992 and the

crackdown in 1999 Today Falun Gong is practiced freely in more than 70 countries around the

world with clubs and associations existing in a range of settings50

Beginning at the turn of the

millennium the authorities started to ban access to websites that contained material about the

movement Indeed a search on the movement on Chinalsquos Xinhua News Agency website will

even today yield nothing (It may be an interesting experiment for delegates to conduct) Those

who reported the initial crackdown were ―followed detained interrogated and threatened

according to a letter written in 1999 by The Foreign Correspondents Club (FCC) of China51

The Falun Gong movementlsquos official website deals with its persecution thus The complex

rationale behind the persecution can be broken into four elements a paranoid dictators fear of

Falun Gongs meteoric growth and soaring popularity that same dictators intense jealousy of

Falun Dafas popularity the inherent conflict between the communist regimes savage political

ideology and its polar oppositemdashFalun Dafas principles of Truthfulness Benevolence

Forbearance and the very nature of communism which to sustain itself requires periodically

labeling a small segment of the population as the class enemy to struggle against52

The Chinese crackdown on Falun Gong practitioners involved a ban on practicing it by the

Chinese Communist Party whose members as aforementioned were interestingly initially

adherents to the movement in significant numbers Indeed the party was divided from within

over their stance on the movement The government formulated an ―anti-cult law a few months

after issuing a warrant for the founderlsquos arrest ―During the first two years of the crackdown

between 150 and 450 group leaders and other members were tried for various crimes and

sentenced to prison terms of up to 18-20 years53

To this day ―central leaders turn a blind eye to

48

httpwwwamnestyorgenlibraryassetASA170112000en7a361a8e-df70-11dd-acaa-

7d9091d4638fasa170112000enhtml 49

httpwww2ohchrorgenglishissuesdefendersdocsAHRC1644Add1_EFSonlypdf 50

httpwwwfaluninfonettopic22 51

httpwwwamnestyorgenlibraryassetASA170112000en7a361a8e-df70-11dd-acaa-

7d9091d4638fasa170112000enhtml 52

httpwwwfalundafaorgengfaqshtmlpersecution 53

httpfpcstategovdocumentsorganization67820pdf Page 4

UNHRC 15 of 44

local methods of suppression against unrepentant practitioners including the reported use of

torture54

Also worth noting is the fact that Chinalsquos judicial system has been alleged to be anything but

conducive to providing justice to those using the system Indeed it is a repressive tool used by

the government to silence dissent China with its vast land mass and various provinces and

municipalities must work hard to keep its Centre strong Scores of individuals who are more

obscure than human rights activists and such are imprisoned by the government while ironically

seeking justice It has long been the custom for people of the countryside to seek justice in

Beijing if they felt that their local authorities had treated them unfairly However modern China

has not taken kindly to this tradition Local authorities are evaluated on the basis of the number

of complaints the Centre receives about them Thus they have a vested interest in thwarting the

reports of any complaints about them to Beijing Those who complain are whisked off to black

jails where ―detainees are denied access to legal counsel and in most cases contact with family

and friends They ―are kept under constant surveillance and subject to often arbitrary physical

and psychological abuse55

Chinalsquos record with regard to political prisoners and its tradition of suppressing dissent are

exacerbated by the sheer scale on which dissent is thwarted The aspect of potential torture of

prisoners further complicates the issue It is troubling that the issue of Chinese political prisoners

only gained international prominence with the case of Mr Liu Xiaobo It is not the only nation in

the world to adopt such strict policies in order to further its own ideology and the committee will

do well to ruminate upon how this tradition can be discontinued so as to allow people their

essential political freedoms

The Infringement of Rights in the Conflict with Tibet

Despite the furor that has been inconsistently directed towards its human rights record China

continues to impose tightening restrictions on rights of expression association and assembly

The Chinese government carries on devising social and economic changes that retain its firm

authority over its citizens which in turn enables a host of human rights violations In the context

of Tibet China has failed to address the grievances of the people there who have been made

victims of social discrimination and have unequal access to opportunities Scores of Tibetans are

marginalized and detained for their religious inclinations which are further suppressed by the

imposition of intense patriotic educationlsquo campaigns whereby socialism is furthered and all sorts

of religious or individualistic tendencies are thwarted

54

Ibid Page 5 55

httpwwwhrworgreports20091112alleyway-hell-0 Page 4

UNHRC 16 of 44

Despite its totalitarian approach China refuses to accept responsibility for the issue Instead it

blames westernlsquo forces for trying to instigate separatism56

The indifference on the part of

China with particular regard to Tibet is apparent with Chinese authoritieslsquo continuous rejection

of ―inconvenient requests by UN human rights experts for visits to the Tibet Autonomous

Region57

During 1912 and 1951 Tibet underwent a period of de facto independence58

While it was still

territorially a part of China it enjoyed relative freedom in its political discourse Tibetan

autonomy was confined within the context of Chinese suzerainty and should not be interpreted

as unrestrained political independence Since 1951 however the Chinese government has taken

steps to ensure its absolute and undeniable dominance over Tibet from which emanates the strife

under discussion Gross violations of human rights have taken place in China administered by

officials with the purpose of cultivating consent with regard to its control over the region

Suppression has led to the inevitable extensive discontent in Tibet a fury which was unleashed

in 2008 The Tibetan unrest of 2008 was a series of protests and demonstrations - not merely in

the Tibet Autonomous Region but elsewhere as well - that later transformed into rioting burning

looting and even killing59

The rioters set fire to state vehicles and clashed violently with the

police installed in the region The crackdown of Chinese authorities in response to the riots was

severe resulting in deaths on both sides and mass imprisonment by state authorities The degree

to which human rights were violated and abused during this crackdown cannot be overstated

The Chinese also revoked the freedom of sharing of information and imposed a ban on the entry

of media officials in the region to contain

information about the unrest and play down

protests60

A Tibetan Government in Exile has existed in India

since 1959 established by the 14th

Dalai Lama61

This Central Tibetan Administration considers the

issue as an illegitimate military occupation by the

Chinese state The Administration works with the

agendas of restoration of freedom in Tibet and rehabilitation of Tibetan refugees

Historical facts refute such a fallacy however The simple reality that the installation of the 14th Dalai Lama

needed the approval of the national government is sufficient proof that Tibet did not possess any independent power

during that period ndash (httpwwwchinaorgcne-whitetibet9-2htm)

56

httpwwwunhcrorgrefworldcountryAMNESTYCHN49b8dfc11a0html 57

Ibid 58

Grunfeld A Tom Reassessing Tibet Policy 2000 59

httpwwwnytimescom20080316worldasia16iht-tibet111134870html 60

Watts Jonathan Branigan Tania (March 18 2008) Tension rises as armed police mass in capital The

Guardian (London) Retrieved November 1 2011 61

httpwwwtibetnetenindexphpid=14

UNHRC 17 of 44

The censured freedom of expression is one of the multiple infringements on rights that are

imposed by China on Tibet Tibetans are denied the basic right to articulate their views through

political discourse Human rights activists advocate the freedom of speech for Tibetans under the

existing and future political arrangements Religious and political figures in Tibet are placed

under house arrest limiting their freedom of movement (in contradiction to article 13 of the

Universal Declaration of Human Rights)62

As was highlighted during the unrest in 2008 China

has often stripped the Tibetan population of its fundamental rights to associate and assemble In

2000 nine Tibetan prisoners in Kandze were charged for participating in a peaceful protest to

five-year prison terms in October 1999 (which were later increased to ten-year terms)63

This example leads us to another crop of abuse conducted overtly by Chinese authorities

arbitrary detention Article 9 of the Universal Declaration of Human Rights reads ―No one shall

be subjected to arbitrary arrest detention or exile64

Chinese law however permits authorities

to detain persons without formally arresting or charging them and persons may be sentenced

administratively to up to 3 years in reeducation-through-labor camps and other similar facilities

without a trial

Chinese authorities have been unresponsive to concerns expressed by the United Nations

Working Group on Arbitrary Detention No counter-explanation was given either over the case

of three Tibetans who had their sentences extended for staging a peaceful political protest during

the Working Groups visit to Drapchi in October 1997 despite international pressure65

Infinite

examples of arbitrary arrests and detentions exist in China international authorities have called

on China to cease this practice and release such detainees immediately absent evidence that they

have engaged in criminal acts No state can or should be able to hold anyone for engaging in

peaceful political activity All humans

should be granted internationally recognized

due-process protections which includes the

right to be informed of the charges leveled

against them66

The question of whether

these detainees are given an impartial trial if

one at all is not even raised

In addition to the arrests carried out in

violation of international law there are

grave evidences of abuses during detention

62

httpwwwhrworgnews20000612human-rights-violations-tibet 63

Ibid 64

httpwwwunorgendocumentsudhr 65

httpwwwhrworgnews20000612human-rights-violations-tibet 66

httpwwwhrworgnews20000612human-rights-violations-tibet

UNHRC 18 of 44

Incidences of beatings at time of arrest and torture (including the administration of electric

shocks and deprivation of food and medical treatment)67

during custody are widely reported

These are not isolated cases rather the product of a holistic policy of dealing with political

dissidents In one notable incident in May 1998 political prisoners in Drapchi staged major

protests to coincide with a visit from a European Union delegation The protests were non-

violent but the authorities reaction was severe several protestors were shot at and one monk

Lobsang Gelek subsequently died68

The Convention Against Torture (CAT ratified by China in 1988) requires the state to prevent

torture and punish those in violation of the law China has not amended its own laws to comply

with even the first article of CAT69

Such practices explicitly stand in contempt of Article 5 of

the Universal Declaration of Rights which censures the use of torture or cruel treatment as

punishment Dr Manfred Nowak the UN Special Rapporteur on Torture stated that ―he was

struck by the strictness of prison discipline and a palpable level of fear and self-censorship when

talking to detainees following his brief assessment of Chinese and Tibetan prisons in 200570

The committee will be looked upon to review ways in which the situation can be monitored more

carefully and what responses if any can be cultivated to impede similar future actions by

China

The continued violations of religious freedom and implementation of policies designed to

diminish religious practices by the State to serve its political needs is a cause of concern Again

referring to the Universal Declaration of Human Rights Article 18 reads ―Everyone has the right

to freedom ofhellipreligion this right includes freedomhellipto manifest his religion or belief in

teaching practice worship and observance71

The policies implemented by Chinese authorities

through use of coercion violent repression and imprisonment impinge upon the freedom of

Tibetans to practice their religion freely China has also strictly enforced re-education programs

for dissident factors within the state The program is aimed at ―combating separatism protecting

stability and promoting development and is intended to reform the political ideology of people

who refuse to accept state control of what they perceive as vital aspects of their religious lives

and beliefs The committee will be expected to deliberate upon the protection of religious

freedom and practices of individuals as well as the validity of these re-education programs in

light of human rights and liberties

Tibet is not the only region where political tensions surrounding autonomy run high The

Kosovo-Serbian conflict is pertinent to recall The Republic of Kosovo declared itself to be an

independent entity on February 17 2008 As of 11 October 2011 85 UN states recognize the

independence of Kosovo However Serbia maintains that Kosovo is a UN governed entity under

67

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 68

httpwwwfreetibetorgabouttorture 69

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 70

Ibid 71

httpwwwunorgendocumentsudhr

UNHRC 19 of 44

its sovereignty Russia and China are among those who do not recognize the Republic while the

USA UK and France have recognized Kosovolsquos declaration of independence This highlights the

rift between the United Nations Security Council over the issue The case of Tibet is all the more

important in light of the fact that many such pockets exist in the world struggling for self-

determination

Media Links

httpwwwfreetibetorgnewsmedia2008-protests-summary

httpwwwguardiancoukworldgallery2008mar19tibetchinapicture=333178281ampindex=7

Chinarsquos Violation of Ethnic Minority Rights

One of the greatest blemishes on Chinalsquos human rights record is in the area of ethnic minorities

and the extent to which China protects ethnic minority rights On paper Chinalsquos policies are

based on ethnic equality and regional ethnic autonomy Ethnic minorities are supposed to be

benefitting from preferential policies in the political economic cultural and educational spheres

However the ground realities are infinitely different Questions have been raised over the extent

to which the government fairly provides services to these minorities and allocates resources

equally to them The Chinese government is seen to largely prefer its Han majority The

minorities claim they are exploited for their resources and in turn not even provided with the

same level of social services as the Han people China is an atheistic government and the fact

that many ethnicities garner their identity in major part from their religious affiliation leads to a

precarious situation The Mongols Tibetans and Uighurs all come to mind when discussing the

issue of China and ethnic minority rights

―Everyone is entitled to all the rights and freedoms set forth in this Declaration without

distinction of any kind such as race colour sex language religion political or other opinion

national or social origin property birth or other status Furthermore no distinction shall be

made on the basis of the political jurisdictional or international status of the country or

territory to which a person belongs whether it be independent trust non-self-governing or

under any other limitation of sovereignty

- Article 2 Universal Declaration of Human Rights

The International Convention on the Elimination of Racial Discrimination defines racial

discrimination as any distinction exclusion restriction or preference based on race colour

descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the

recognition enjoyment or exercise on an equal footing of human rights and fundamental

UNHRC 20 of 44

freedoms in the political economic social cultural or any other field of public life72

It is due to

this that the international community has adopted the norm of subsuming ethnicity under the

terminology of race

―The Peoples Republic of China is a united multi-ethnic country So far 56 ethnic groups have

been identified and recognized by the central government The population of various ethnic

groups differs greatly While the Han ethnic group has the largest population and that of the

other 55 ethnic groups is relatively small so they are customarily referred to as ethnic

minoritieslsquo According to the fifth national census conducted in 2000 the population of all the

55 ethnic minority groups totaled 10449 million accounting for 841 percent of the total

population of China73

Chinas official 55 minorities are located primarily in the south west

and north of China Only Tibet and Xinjiang have a majority population of official minorities

while all other provinces municipalities and regions of China have a Han majority

One of Chinalsquos autonomous regions is the Xinjiang Uighur Autonomous Region (XUAR)

located in western China The area is vast accounting for one sixth of Chinalsquos land and houses

around 13 major ethnicities including the Uighurs who are a predominantly Muslim people with

origins in Central Asia The Uighurs have had strained ties with the state and have often resisted

Chinese authority74

In turn the Chinese government has reacted sometimes violently against

restless factions in the region One of the most passive aggressive forms of response on the part

of the Peoplelsquos Republic has been the encouragement of the migration of the Han people ndash

Chinalsquos ethnic majority ndash to the XUAR75

Around 90 of Xinjiangs population comprised of

Uighurs in 1949 now it is estimated that Uighurs make up only about 45 of the population76

The policies in Xinjiang are said to be designed to ―promote economic development not

demographic change In reality though the influx of migrants has amplified Uighur discontent

as Han and Uighurs compete over limited jobs and natural resources77

The United Stateslsquo

Congressional-Executive Commission on China reported that in 2006 the XPCC (Xinjiang

Production and Construction Core) reserved approximately 800 of 840 civil servant job openings

for Han Chinese78

One of the causes of the Han monopoly in the employment sector is the

linguistic advantage afforded to them and perpetuated by the education system As part of its

efforts to implicitly impose a unified culture the language policy was altered by the state with

an increased focus on use of Mandarin in schools at the expense of the local languages

Methods of education special to the ethnic peoples of the XUAR including the Muslim Uighurs

are suppressed For example a campaign by the PRC in 2001 targeted religious teachers and

72

httpwww2ohchrorgenglishlawcerdhtm 73

httpenglishgovcnofficial2005-0728content_18127htm 74

httpwwwcfrorgchinaeast-turkestan-islamic-movement-etimp9179 75

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p8 76

httpnewsbbccouk2hiasia-pacific3330803stm 77

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p4 78

httpwwwcolumbiaeducunewsclips20080801UighursTWPOSTpdf

UNHRC 21 of 44

endeavored to sever ties between mosques and groups involved in allegedly ―separatist

activities Around 8000 imams were required to undergo ―political reeducation in this regard

and become ―patriotic religious personalities Ethnic minorities are educated in ways that do not

allow them to learn their own languages or practice their own religion In 2001 for example a

Muslim girl was expelled from school for praying 79

Moreover in an attempt to further its socialist agenda and bind ethnic minorities together

minority cultural activities are often hindered In its place nationalistic values are given a

premium and integrated into society so as to tie the entire country in a unified Chinese foldlsquo

Resultantly an asymmetry with regards to the provision of services and protection of cultural

identity can be found in almost every ethnic minority region in the country The repression

against minorities has wider implications on the human rights situation for all This leads to

creation of a vindictive attitude among the minorities not only against the government but also

the Han majority

In July 2009 this attitude manifested itself in

the form of severe riots between the Han and

Uighur communities in Xinjianglsquos capital city

Urumqi Ethnic tensions elevated to the point

that police involvement was made necessary

According to Chinese state media at least 150

people were killed and more than 800 were

injured The riots were reportedly sparked by a

Uighur protest over the ethnically motivated

killing of two Uighur workers in the southern

province of Guangdong

On the topic of allegations of separatism it is interesting to note that post 911 it has been noted

that the Chinese government has used concerns about terrorism as a method for suppressing

ethnic activity This is possible through the characterization of certain ethnicities as having

fundamental leanings The Muslim Uighurs fell under fire for this very reason after the

September 2001 attacks

One of the ways that the Chinese government with its Han leanings has asserted its presence in

the region is through the smokescreen of the XPCC The Peoplelsquos Liberation Army and the

XPCC are present in the region per the government to ―consolidate border defense accelerate

79

wwwminorityrightsorgdownloadphpid=29 Page 30

UNHRC 22 of 44

Xinjianglsquos development and reduce the economic burden on local governments and the local

people of all ethnic groups80

The heavy militarization of ethnic minority

regions also enables the Chinese government

to quickly respond to skirmishes between the

minorities and the Han For example clashes

between the Uighurs and the Han in the

XUAR are quickly clamped down upon The

response by Chinese authorities always

focuses on the minority groups in the region

The typical response includes a period of

strike hardlsquo security measures during which the minorities are subjected to police patrols of

crowded areas identity checks street searches increased criminal investigations and accelerated

trials The measures also include mandatory political indoctrination classes for the Uighur

population Swift Chinese response to ethnic dissidence precludes the possibility of trying

protestersrioters under due process This phenomenon also contributes to the controversy of

China and its policy of arbitrary imprisonment

Essential to any countrylsquos social progress is the protection and provision of the basic rights to all

its citizens For a country like China which has a significant standing in the international

community the degree to which human rights are upheld comes under added scrutiny Minorities

need to be guaranteed provision of not only fundamental rights but additional ones that grant

them equal opportunities

Recent Developments

3 November 2010 UN Secretary General pushes China on human rights

Ban Ki-moon the United Nations secretary general has called on China to respect human rights

after critics accused him of dodging the issue on a trip to Beijing The UN secretary general met

Hu Jintao the Chinese president but failed to challenge Mr Hu on the imprisonment of Liu

Xiaobo the democracy activist who was awarded this years Nobel Peace prize and raise the

issue of human rights81

80

httpwwwchinaorgcne-white200305269htm 81

httpwwwtelegraphcouknewsworldnewsasiachina8107148UN-Secretary-General-pushes-China-on-human-

rightshtml

UNHRC 23 of 44

5 November 2011 Yeqing Ji from Shanghai China will most likely not be able to have children

after she said two forced abortions physically impaired her uterus82

8 September 2011 The Chinese government has renewed Googlelsquos license to allow it to

continue operating its local website in the country83

13 November 2011 Seven months ago

Chinese police detained the countrylsquos most prominent artist Ai Weiwei at the airport and drove

him to a hidden location It was the beginning of what is to be a two-and-a-half month nightmare

for the architect and sculptor who is also a former darling of the Communist Party who later

turned into an outspoken government critic Ai was held on vague charges of economic crimes

was kept in isolation and subjected to Kafka-esque interrogations84

April 19 2011 Amnesty International a 21-year-old monk Phuntsog set himself on fire in an

apparent anti-government protest in March 2011 Instead of putting out the flames Chinese

police beat the young monk creating huge resentment in the monastery85

At least 11 ethnic

Tibetans have been detained for protesting against the event and against government policies

They are at risk of torture and other ill-treatment86

29 May 2011 300 Tibetan monks detained in Kirti monastery by Chinese security forces87

15 September 2011 Chinese Uighurs economic fears

Amid ethnic tensions minority regards modernization plans in Xinjiang as favoring Han Chinese

migrants88

20 November 2011 Another of Chinalsquos minorities the Hui Muslims in Ningxia do not feel

stigmatized

―There is an important reason why Hui and Han Chinese get along with each other Unlike

Muslims of the other ethnic minorities like Uighur Kazakh Kyrgyz and Tajik the Hui Muslims

speak Mandarin just like the Hans89

82

httpabcnewsgocomBusinesswoman-china-forced-abortions-leaves-unable-

childrenstoryid=14880884Tsia7LIk6so 83

httpwwwbbccouknewsbusiness-14832392 84

httpwwwthedailybeastcomnewsweek20111113ai-weiwei-speaks-out-on-his-detentionhtml 85

httphradvorgaggregatorsources10 86

httpwwwamnestyorgenlibraryassetASA170212011end75f7611-be66-4d5a-9391-

c80c43501d56asa170212011enhtml 87

httphumanrightshouseorgArticles16503html 88

httpwwwaljazeeracomvideoasia20110920119158016969449html 89

httpwwwtodayszamancomnews-263322-chinas-hui-muslims-do-not-feel-stigmatizedhtml

UNHRC 24 of 44

Conclusion

The United Nations Human Rights Council at LUMUN 2012 will be looked upon to provide a

framework for the resolution of these issues in a universal context The scope of the issues

should be expanded and applied to countries other than China The committee will have to make

recommendations which have universal application and resolve all aspects of the issue

comprehensively For any queries related to the study guide please do contact either (or both)

the committee directors at the given addresses

UNHRC 25 of 44

Topic Area B Abolishing the Death Penalty

Introduction to the Topic Area

The death penalty is formally defined as the execution of an offender sentenced to death after

conviction by a court of law of a criminal offenselsquo90

The concept of a capital crime is subjective

and states have made use of this practice in response to multiple forms of crime The use of the

death penalty has produced much controversy with regard to its apparent violation of

fundamental human rights as delineated in the Universal Declaration of Human Rights and

subsequent human rights charters and treaties It is asserted that the use of death penalty is in

contravention to the peopleslsquo right to life promised to every individual under Article 3 of the

Declaration91

Moreover Article 2 of the Charter of Fundamental Rights of the European Union

lucidly bars the imposition of death penalty as a form of punishment92

Arguments against the

use of death penalty are also made on the grounds of inhumane methods which are employed to

see out the process Historically multiple methods have been used which include death by

hanging severing of the head lethal injection shooting and electrocution93

94

As a response states have made keen efforts to abolish

the death penalty particularly in the last two decades as

can be interpreted from the graph on the right which

represents the number of states that have abolished the

death penalty Countries belonging to the European

region with the exclusion of Russia and Belarus have

sought to revoke the use of the practice The death

penalty is most commonly seen to be a formal practice

in most of the developing countries The trend is

apparent in Latin America Africa and Asia

96 countries have formally abandoned the use of death penalty 58 countries allow the use95

Other states have abolished the penalty in practice but the laws remain in place for the

imposition of the penalty as a response to certain crimes The imposition of the death penalty has

90

httpwwwbritannicacomEBcheckedtopic93902capital-punishment 91

httpwwwunorgendocumentsudhr 92

httpwwweuroparleuropaeucharterpdftext_enpdf 93

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffle

re-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 94

httpwwwdeathpenaltyinfoorgmethods-execution 95

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf

Figure 1 (Drag to enlarge)

UNHRC 26 of 44

seen a decline over the recent years with a fall in the number of executions that take place

annually It would however be incorrect to assume that the practice is not prevalent or widely in

effect Amnesty International reported that at least 2024 new death sentences were imposed in 67

countries in 2010 Moreover there were at least 17833 people sentenced to death worldwide at

the end of 201096

Again these are minimum figures which are the safest that can be inferred

from the given research There were 527 known executions carried out in 2010 globally97

This

figure however does not include the number of executions that took place in China where

analysts believe that more than a thousand people were put to death in the past year

The statistics represent the number of people executed through capital punishment One way to

formally define capital punishment is to regard it as the state sanctioned killing of an individual

through a judicial process as a punishment for a crime (defined as a capital crime by the state)98

Capital punishment is the most obvious and prevalent manifestation of the death penalty It is

often perceived as a statelsquos right in order to preserve law and order against any individual who

engages in serious crimes that threaten other individuals or the state Those who advocate against

the use of capital punishment label it as a symptom of a culture of violence not a solution to

itlsquo99

The controversy surrounding the topic is based on the legal ethical and moral acceptability

of the statelsquos right to an individuallsquos life The debate entails several social and economic factors

some of which will be reviewed in closer detail in the relevant section of this guide

One of the most striking aspects related to the issue is the imposition of the capital punishment

on juveniles The sentencing of juveniles to death is in clear breach of international law The

morality and validity of such a practice is often called into question and has been put under

relentless scrutiny despite all of which the practice is still carried out in a number of countries

Historically the United States China and Iran have the worst records relating to juvenile death

sentences100

The study guide also includes a separate section for the case of juveniles in which

the legal and social aspects of the problems are detailed

As stated states have made use of the death penalty to punish crimes of varying natures The use

of the death penalty is reserved for only the most seriouslsquo crimes as put forth in international

law101

The notion of a capital crime however is a subjective one states that have doled out

death sentences have defined it differently In certain countries the death penalty is only used to

charge criminals accused of war crimes In other countries the penalty is reserved for crimes like

96

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf 97

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010 98

httpusersrcncommwooddeathpenhtml 99

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 100

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 101

httpwwwunorgdocumentsecosocdocs1995e1995-78htm

UNHRC 27 of 44

murder rape or even robbery States also use the death penalty against individuals who are guilty

of treason The issue however is that many states practicing the death penalty impose the

punishment even when the crimes do not meet the threshold for the aforementioned most

seriouslsquo crimes The ability of states to define what constitutes as a capital crime has led to states

abusing their powers as has been observed in the sentences ordained by military courts

Moreover even the radicals who make the argument of the punishment fitting the crime agree

that in many instances individuals have been executed for softlsquo crimes crimes that were

certainly not tantamount to charges of murder or crimes against humanity The issue of apparent

violations of human rights is further exacerbated in these instances The study guide will discuss

the universal crimes that have resulted in the awarding of the death penalty and examine the

issue further The committee will be expected to discuss the feasibility of drawing up an

international definition of crimes which in isolated instances perhaps may be appropriate for a

sentence like the death penalty

Another pertinent aspect surrounding the debate is that of extrajudicial killings The execution of

a person by state authorities without the authority of a judicial proceeding is termed as an

extrajudicial killing Many states have used extrajudicial killings to establish their authority and

order without having to wade through the legal process By doing so they have deprived scores

of people of their fundamental right to free and fair trials Governments have also employed this

tactic to exercise political aggression and to suppress dissent A particular point of concern is the

fact that some states have made use of these killings even when they have officially revoked the

imposition of the death penalty Extrajudicial killings are carried out persistently in many

countries ndash the list includes countries like Iran Iraq Israel Philippines102

Most recently the

killing of Anwar al-Awlaki and Samir Khan in Yemen by a sanctioned National Security Council

move by the USA was an example of states embarking on such paths to eliminate threats to

national securitylsquo103

102

Multiple citations for each country can be found in the second paragraph article titled Extrajudicial killinglsquo on

Wikipedia 103

httpwwwtelegraphcouknewsworldnewsbarackobama7564581Barack-Obama-orders-killing-of-US-cleric-

Anwar-al-Awlakihtml

UNHRC 28 of 44

Wrongful convictions lead many to believe in the inherent incapacity of the death penalty to

serve justice On September 21 2011 US citizen Troy Davis was executed in Georgia after

which seven of the nine witnesses who testified against him in the case that led to his execution

recounted or retracted their evidences A petition with nearly one million signatures was put

forth to reconsider his case it was rejected On the same day a 17 year old boy was publicly

hanged in Iran for killing a popular athlete his justification based on self-defense was ignored

Also on the same day a Pakistani national was executed in China on grounds of drug trafficking

an offence that does not often result in capital punishment The need for the resolution of this

issue is pressing and the committee needs to deal with all aspects of the problem in a

comprehensive and enduring manner104

Capital Punishment

In 2010 23 countries implemented capital punishment A total of 527 executions (plus the 1000+

carried out in China alone) were known to have taken place with Iran Yemen USA and North

Korea meting out a significant number of sentences105

The figure is lower than the records

computed for years past There are more states which are now abolitionist either in law or in

practice with regard to the imposition of the punishment Gabon was officially the last country

to rescind the practice while bills calling for an end to capital punishment have been presented

to parliaments in Lebanon Mali Mongolia and South Korea106

Renewed efforts are

104

httpwwwamnestyorgennews-and-updatesus-executes-death-row-prisoner-troy-davis-2011-09-21 105

httpwwwguardiancouknewsdatablog2011mar29death-penalty-countries-world 106

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010

UNHRC 29 of 44

simultaneously being made on the international front to implement laws against capital

punishment A third resolution establishing a moratorium on the use of death penalty passed the

UN General Assembly on December 21 2010107

Despite the increasing momentum towards an eventual elimination of the practice the number of

executions taking place annually is a cause of major concern Advocates of the death penalty

assert that the practice is an effective means of deterring crime in society Public executions are

often held in Iran Afghanistan and Palestine for example to demonstrate the fate awaiting

those who commit similar crimes108

Arguments are made on the grounds of justice that it is

proper and fair to take an eye for an eye and a life for a life and that some individuals deserve

it for the crimes they commit

Those opposing the practice question the morality of an action sanctioned by the state which

endorses deprivation of the right to life a fundamental human right under the Universal

Declaration of Human Rights109

There are inescapable flaws within legal systems which are

aggravated by discrimination prosecutorial misconduct and inadequate legal representation

Moreover the risk of executing the innocent can never be eliminated110

An alternative is

presented in the form of imprisonment for life without parole which results in a parallel debate

is imprisonment for life a viable surrogate to the practice of death penalty A thread from this

debate also relates to the economic feasibility of carrying out a death sentence as opposed to the

feasibility of imprisonment for life

Deterrence

Capital punishment is often propagated as an adequate approach in the deterrence and prevention

of crime The logic is that if murderers are sentenced to death potential murderers will think

twice before killing for fear of losing their own life The deterrence theory presumes that the

once the punishment for a certain crime is established the criminal by committing the crime

voluntarily assumes the risk of receiving the prescribed punishment for the crime Only when the

most severe punishment has been set will there be a possibility of an individual evaluating their

actions in light of the consequences111

107

httpwwwundemocracycomA-RES-62-149pdf 108

httpwwwamnestyorgennews-and-updatessharp-rise-public-executions-iran-executes-first-juvenile-

offenders-2011-2011-04-27 109

wwwunorgendocumentsudhr 110

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 111

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 30 of 44

The death penalty it is asserted ensures that convicted criminals do not offend again moreover

it is deemed to be a just penalty for atrocious crimes It is further alleged that many criminals

who are set free even after lengthy sentences regress and go on to commit heinous crimes

Therefore there should never be the possibility of a release clause112

The deterrence theory is modeled on the grounds of human psychology logic and rationale As a

professor of jurisprudence Ernest van den Haag PhD wrote ―Common sense lately bolstered

by statistics tells us that the death penalty will deter murder if anything can People fear nothing

more than death Therefore nothing will deter a criminal more than the fear of death These

statements were further validated by a US Supreme Court Justice who said on record that

Prima facie the penalty of death is likely to have a stronger effect as a deterrent to normal

human beings than any other form of punishmentlsquo113

Numerous studies have been conducted on

the subject with varying results One of the most established studies was conducted in USA

using a panel data set of over 3000 counties from 1977 to 1996 which concluded that on

average one death sentence resulted in 18 fewer murders114

Delegates will be expected to be

familiar with other similar studies

These studies are commonly refuted as not crediblelsquo by opponents of the capital punishment

who also deny the correlation between crime and death penalty as a fabricated relationship which

cannot be empirically established115116

A study of the relationship between capital punishment

and the incidence of murder was conducted for the UN in 1988 and updated in 2002 The

conclusion was ―The investigation has not provided scientific proof that executions have more

deterrent effect than life imprisonment It is unlikely that such evidence will ever come

Deterrence hypothesis finds no support in the survey117

Another counter-argument asserts that crime is still a persistent feature of the societies that

continue to award the death penalty while many of the abolitionist states enjoy low crime rates

This can be evidenced by comparing the crime rate in USA or Pakistan with that of Canada or

some European state In Canada for example the homicide rate per 100000 fell from a peak of

309 in 1975 the year before the abolition of the death penalty for murder to 241 in 1980 and

in 2003 27 years after abolition the homicide rate was 173 per 100000 44 per cent lower than

in 1975118

112

httpwwwdeathpenaltyinfoorgfacts-about-deterrence-and-death-penalty 113

httpdeathpenaltyproconorgviewresourcephpresourceID=002000 114

httpdeathpenaltyproconorgsourcefilesThe20Deterrent20Effect20of20Capital20Punishmentpdf ndash

Delegates should carefully examine certain parts of this document to establish the credibility of the assertions made

They should also invest in trying to locate studies that refute the assertions made in this and similar studies 115

httpwwwdeathpenaltyinfoorglaw-enforcement-views-deterrencelawenforcement 116

httpwwwdeathpenaltyinfoorgDonohueDeterpdf 117

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 118

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml

UNHRC 31 of 44

The lack of evidence on the production of a unique deterrent effect points to the danger of

relying on the deterrence hypothesis as a basis for public policy on the death penalty

Retribution amp Morality

An important terminology that delegates need to familiarize themselves with is that of

―retributivism119

It is defined as ―a policy of criminal justice that sponsors the punishment of

criminals in retribution for the harm they have inflicted120

Criminals deserve to be punished in

proportion to the gravity of their crime regardless of whether the victim or anyone else desires

it we may all deeply regret having to carry out the punishment but consider it warrantedlsquo is

what many say in defense of the theory121

The need for the establishment of a visibly just state arises from the potential risks of not having

one As has been visible in many developing countries with shaky legal systems when criminals

are not adequately punished for their unlawful behavior the public takes the law into its own

hands and deals out vigilante justice It is asserted that retributivism is essential for a functioning

society where individuals respect the supremacy of law

The concept of retribution in society is also grounded in religious beliefs The concept of an eye

for an eye has been a part of all three Abrahamic traditions However in the modern world it is

Islamic nations that still retain the practice based on these grounds Similar traditions can be

found in Hinduism Christianity and Buddhism as well as other religions in different parts of the

world In many non-secular countries the constitutions and state laws are derived from religious

doctrines

Opponents dismiss this aspect of the argument as being emotionally charged with little rational

logic to support the contention They claim that the establishment of capital punishment gives

birth to a culture of violence endorsed by the state It perpetuates the cycle of aggression and

brutality something which the state should be actively inhibiting not endorsing

Wrongful Convictions

The death penalty carries with it the danger of wrongfully convicting an innocent person for

crimes he did not commit There is the potential for capital punishment to evolve into sheer

miscarriage of justice as in certain circumstances states are often seen to rush the trials and

convict the accused hastily This practice takes foremost apparently in military courts often in

119

Cavadino M amp Dignan J (1997) The Penal System An Introduction (2nd ed) p 39 London Sage 120

httpdictionaryreferencecombrowseretributivism 121

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 32 of 44

the developing or lesser-developed countries where the system of law is not properly established

It is not however exclusive to these countries Examples can be drawn from countries like

Philippines Thailand Iran and Palestine to name just a few where executions are carried out at

alarming pace removing the possibility of reviews

On 15 August 2004 Atefah Rajabi Sahaaleh was hanged in a public square in the Iranian city of

Neka Her death sentence was imposed for adultery and crimes against chastity122123

Atefah

was executed a week after the trial was run Following the execution the Judge for the case was

arrested for investigation by the Intelligence Ministry The media reported that in addition to the

confession of his rape of Atefeh Judge Rezai who served as judge jury and executioner also

confessed to torturing her during interrogations to extract names of others she had relations with

No transcripts from court proceedings were recorded The State alleged that Atefah was 22 at the

time of her execution A witness later claimed The judge just looked at her body because of

the developed physique and declared her as 22124

ndash her birth certificate revealed she was born

in 1988 Furthermore Atefah did not have access to a proper defense where she could contest

charges leveled against her This is one example of many such cases of miscarriage of justice

Something that recurs in these cases is the failure of the police or prosecuting authorities to

prevent the use of unreliable witnesses the misuse of evidence or confessions and the provision

of inadequate defense representation The advent of DNA profiling and the use of it as positive

evidence in criminal cases has resulted in the exoneration of multiple death row inmates on

grounds of forensic evidence or lack thereof Since 1973 138 people have been released from

death row in the United States after it was proven that they were innocent125

In 2009 Paul

House was cleared of murder and exonerated in Tennessee USA after having served 22 years

on death row His innocence was proclaimed in light of substantial additional DNA testing and

further investigationlsquo 126

Amnesty International has noted examples of wrongful convictions from elsewhere as well

including Jamaica Japan China Nigeria and Tanzania127

Paul G Cassell a former law clerk to

the Chief Justice of USA stated the mistaken release of guilty murderers should be of far greater

concern than the speculative and heretofore nonexistent risk of the mistaken execution of an

innocent personlsquo highlighting the case made by those who advocate the death penalty even in

light of wrongful convictions128

122

httpwwwcosmolearningcomdocumentariesexecution-of-a-teenage-girl1 123

httpnewsbbccouk2hi5217424stm 124

httpnewsbbccouk2hi5217424stm 125

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 126

httparticlescnncom2009-05-13justicetennesseeexonerated_1_death-row-inmate-dna-evidence-house-

arrest_s=PMCRIME 127

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 128

httpdeathpenaltycurriculumorgstudentcaboutargumentstestimony3bhtm

UNHRC 33 of 44

Alternative to Death Penalty

All abolitionist states have reverted to the practice of sentencing criminals to life imprisonment

(some without parole) which is also termed as death by incarceration Widely regarded as a more

humane course of action life imprisonment is also alleged to be a more economical practice

While ensuring public safety by keeping criminals away from society this system also saves the

lives of innocent people who have been falsely or wrongfully convicted The setup inhibits and

curbs the cycle of violence while retaining the deterrence factor it is strongly asserted

Advocates for the death penalty are averse towards life imprisonment for a number of reasons

They cite the unreliability of the system as one of the flaws which impedes the possibility of

such a sentence being successful A certain James Moore serves as a valid example in this case

In 1962 James Moore raped and strangled 14-year-old Pamela Moss The victimlsquos parents opted

out of capital punishment for Moore and he was instead sentenced to life in prison without

parole Twenty years later a change in sentencing laws in 1982 renders James Moore eligible for

parole every two years129130

Kenneth McDuff is another example McDuff was convicted and sentenced to life imprisonment

Years later due to the issue of overcrowding in prisons McDuff was released following which

he killed eight more people McDufflsquos example is of an individual from a developed country

with an established legal system in place131

Overcrowding is a feature of prisons in developing

or lesser developed countries In many such states criminals have also been known to easily

break out from penitentiaries

The economic aspect of the debate is murky at best There is a lack of empirical data on the

subject which is why the arguments of both these sides cannot be settled beyond doubt

Advocates of capital punishment insist that the overall costs of the practice are far lesser than the

costs of housing an inmate for a lifetime132

They also suggest that the life imprisonment allows

criminals to conceive new habeas corpus petitions which on legal grounds cannot be rejected

automatically resulting in more trials

On the other hand substantial arguments are made which stress that the cost of legal proceedings

in capital cases is in truth more than that of other cases States and nations spend a significant

portion of the taxpayerlsquos money in meting out such punishments133

Delegates when addressing

this portion of the debate will need to be aware of the financial aspects of the issue as it forms

for many states an important part of whether capital punishment should be revoked or

not

129

httpwesleylowecomcphtmldeter 130

httpwwwnytimescomkeywordparole 131

httpwesleylowecomcphtmldeter 132

Ibid ndash view section titled Capital Punishment and its costslsquo 133

httpwwwamnestyusaorgour-workissuesdeath-penaltyus-death-penalty-factsdeath-penalty-cost

UNHRC 34 of 44

Imposition of Death Penalty on Juveniles

The prohibition on the death penalty for crimes committed by juvenile offendersmdashpersons under

age 18 at the time of the offensemdashis well established in international law specifically in the

Convention on the Rights of Child

ldquoNo child shall be subjected to torture or other cruel inhuman or degrading treatment or

punishment Neither capital punishment nor life imprisonment without possibility of release shall

be imposed for offences committed by persons below eighteen years of agerdquo134

- Article 37(a) Convention on the Rights of Child

ldquoSentence of death shall not be imposed for crimes committed by persons below eighteen years

of age and shall not be carried out on pregnant womenrdquo135

- Article 6(5) International Covenant on Civil and Political Rights

The treaties are a unanimously agreed set of non-negotiable standards and obligations By

acceding to the treaties and ratifying them governments commit to protecting and ensuring

childrens rights and to holding themselves accountable for this commitment before the

international community

Even though the practice of capital punishment on juveniles is relatively rare however in clear

contravention of international law nine countries have executed offenders who were juveniles at

the time of their crimes between 1990 and 2005136

These countries include the Peoples Republic

of China (PRC) the Democratic Republic of the Congo Iran Nigeria Pakistan Saudi Arabia

Sudan the United States and Yemen137

The USA has since moved to implement a ban on capital

punishment for juveniles However in most other countries of the preceding list the practice is

still enshrined in the judicial system Iranlsquos record in particular has been abominable over the last

decade It has carried out 39 executions of persons under the age of 18 since 2005 Presently

over a hundred individuals are placed on death row for crimes committed as juveniles The

executions of Mahmoud Asgari Ayaz Marhoni and Makwan Moloudzadeh became international

symbols of Irans child capital punishment and the judicial system that hands down such

134

httpwww2ohchrorgenglishlawcrchtm 135

httpwww2ohchrorgenglishlawccprhtm 136

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf - This document by the Human Rights Watch

called The Last Holdoutslsquo is a good summary of juvenile executions and should be reviewed 137

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 - Contains a list with

statistics and details of countries which have allowed the imposition of death sentence to juveniles

UNHRC 35 of 44

sentences138139140

Saudi Arabia and China too have questionable records that need to be

scrutinized further

While regional treaties and charters usually substantiate international law the Arab Human

Rights Charter of 2004 is unique among regional and international treaties in that the ban on the

juvenile death penalty in it is not absolute but merely optional141

Furthermore national laws in states that observe such a practice are in violation of

international legally-binding charters In Iran and Saudi Arabia laws usually treat a child the

same way as an adult criminal offender would be treated Article 10(3) of the International

Covenant on Civil and Political Rights emphasizes the need for demarcation between the

handling of children and that of adults in stating ―Juvenile offenders shall be segregated from

adults and be accorded treatment appropriate to their age and legal status142

The definition of a child in these Muslim states is unclear as adulthood is associated with

attainment of puberty which is a relative concept The Committee on the Rights of the Child in

January 2005 censured the Saudi government for its practice of imposing the death penalty on

juveniles terming it a serious violation of the fundamental rights The committee was deeply

alarmed over the discretionary power judges hold to treat juveniles as adults as was stated in

the committeelsquos report Iran too was strongly condemned following the release of an

international report highlighting the dire situation in Iran by the International for Human Rights 143

138

httpwwwfoxnewscomstory0293329798200html 139

httpnewsbbccouk2himiddle_east7130380stm 140

httpenwikipediaorgwikiCapital_punishmentIran 141

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 142

httpwww2ohchrorgenglishlawccprhtm 143

httpwwwfidhorgIMGpdfRapport_Iran_finalpdf

UNHRC 36 of 44

On August 19 2008 Iranian authorities executed Seyyed Reza Hejazi at Isfahan Central Prison

for his role in a murder committed in 2003 when he was 15 Hejazi was tried as an adult by

Branch 106 of the Isfahan General Court even if he did not qualify as one under international

stipulations and sentenced to death on November 14 2005144

In Saudi Arabia Mu`id bin

Husayn bin Abu al-Qasim bin `Ali Hakami was executed on July 10 2007 for a murder he

allegedly committed three years earlier when he was 13 years old145

The judges in these states

because of the implementation of the Sharialsquo law have a large amount of discretion with regard

to their rulings This discretion is often abused in the interrogation and judicial proceedings In

Pakistan authorities hanged Mutaber Khan in Peshawar Central Prison on June 13 2006 on

charges of murder of five people The fact that he was held in the juvenile wing of Peshawar

Central prison and the evidence presented by the accused confirming that his age was below 18

at the time of the killings were not taken into account during the trials and Mutaber was charged

as an adult in the case146

While the above does not cover exhaustively the practice of capitally punishing juveniles the

committee is expected to be well read on the matter The committee will be required to devise

ways to strictly apply the existing international law on the subject to curtail further deaths of

juveniles by states A series of recommendations on better implementation of international

covenants will be expected from the committee Delegates at UNHRC will also have to

familiarize themselves with the stipulations in the national laws of countries practicing juvenile

death penalties (Iran Saudi Arabia Pakistan Nigeria Sudan Yemen and UAE among others) to

discuss how these states are constitutionally able to bend international law and mete out the

illegal punishments

144

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 145

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 146

See FIDH and Human Rights Commission of Pakistan ―Slow march to the gallows and ―Condemned Prisoner

Executed Dawn Newspaper Karachi June 14 2005 httpwwwdawncom20060614nat16htm

UNHRC 37 of 44

Universality of Laws Incurring the Death Penalty

In countries which have not abolished the death penalty capital punishment may be imposed

only for the most serious crimes it being understood that their scope should not go beyond

intentional crimes with lethal or other extremely grave consequences

- Safeguards guaranteeing protection of the rights of those facing the death penalty147

Laws incurring the death penalty or capital crimes have certain uniformity the world over This

is of course barring states that are religiously affiliated and whose law systems are not secular

in nature The list of capital crimes for those states with non-secular legal systems is slightly

different The Human Rights Commission had decided that the imposition in the State party of

the death penalty for offences which cannot be characterized as the most serious including

apostasy committing a third homosexual act illicit sex embezzlement by officials and theft by

force are incompatible with Article 6 of the Covenant Economic offences including

embezzlement drug related offences political offences and robbery were also referred to148

The reason why looking into capital crimes and trying to garner a global impression of them is

important is that the death penalty can only realistically be abolished in a piecemeal way This

process will entail shortening the list of capital crimes The UN formally notes that ―in order

fully to guarantee the right to life provided for in article 3 of the Universal Declaration of

Human Rights the main objective to be pursued is that of progressively restricting the number of

offences for which capital punishment may be imposed with a view to the desirability of

abolishing this punishment in all countries149

The first established death penalty laws date as far back as the Eighteenth Century BC in the

Code of King Hammaurabi of Babylon which codified the death penalty for 25 different crimes

By the 1700s 222 crimes were punishable by death in Britain including stealing cutting down a

tree and robbing a rabbit warren In the 19th

century the death penalty was eliminated for over

100 of the 222 crimes punishable by death 150

In modern times the UN Special Rapporteur on

extrajudicial summary or arbitrary executions has stated that the death penalty should be

eliminated for economic crimes and drug-related offences and that the restrictions to its use

―exclude the possibility of death sentences for so-called victimless offences ndash including acts of

treason espionage and other vaguely defined acts usually described as crimes against the Statelsquo

or disloyaltylsquo and ―actions primarily related to prevailing moral values such as adultery and

prostitution as well as matters of sexual orientation151

147

httpwww2ohchrorgenglishlawpdfprotectionpdf 148

httpwwwunhchrchtbsdocnsf0bc310a747155dff88025655300537faeOpendocument 149

General Assembly resolution 2857 httpwwwunodcorgpdfcompendiumcompendium_2006_part_01_05pdf 150

httpdeathpenaltycurriculumorgstudentcabouthistoryhistoryPDF 151

httpswwwabofimedia24259report10pdf

UNHRC 38 of 44

Contrary to the made recommendations even political dissent warrants a death sentence in

several countries most notably in China and Iran In 2010 nearly 20 Kurdish people were

executed for political offences in Iran The country is known for keeping dissent especially from

the Kurds suppressed Most are executed on the grounds of moharebeh or enmity against God

Moreover challenging the power of the Ayatollah is also punishable by death These charges are

neither explicit nor in line with international guidelines over what crimes are punishable

capitally In Iran judges must handle such cases carefully as Iranian law provides for only one

punishment if an individual is found to be guilty of treason Libya too thwarts political dissent

with firm laws in place for punishing by death those who illegally form groups organizations or

associations against the state152

Saudi Arabia too is worth note for its vaguely phrased laws governing capital punishment

Intentional murder and crimes that spread ―mischief in the land (Fasad fil-ardh) merit death In

2010 the government announced that it had executed 26 people all by beheading Crimes that

―spread mischief include witchcraft and sorcery153

How is one convicted of witchcraft in the

21st century What can the international community do when regarding countries such as these

Treason arguably along with murder is the capital crime that has yet to be phased out by many

countries In some such as Brazil treason during warfare is the only crime for which a person

can be sentenced to death In the Gaza Strip under Hamas any sort of cooperation with Israeli

forces during military actions is also punishable by death In others including Algeria Bahrain

Iran and Malaysia treason is punishable by death in all circumstances The United States too has

federal laws governing treason under which traitors ―shall suffer death154

Child sex abuse is another crime that is widely held to merit the death penalty In Russia for

example according to the Russian Public Opinion Research Center an overwhelming majority

consider the death penalty to be an acceptable punishment especially in relation to molestation

155 In 2009 however Russias Constitutional Court effectively abolished the death penalty by

extending indefinitely a 13-year-old moratorium on capital punishment156

Indonesia has some of the strictest penalties for drug related crimes in the world Roughly half of

those on death row are incriminated with drug-related charges157

In 2008 though the most high

profile executions were of terrorists Three of those found responsible for the 2002 Bali

bombings were executed by shooting158

Generally speaking however a significant proportion of

152

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 153

httpwwwstategovgdrlrlshrrpt2010nea154472htm 154

httpdeathpenaltyproconorgviewresourcephpresourceID=1172 155

httpenrianrutrenddeath_penalty 156

httpwwwreuterscomarticle20091119idUSLJ330478 157

httpwwwnytimescom20080711worldasia11iht-indo114421132html 158

httpnewsbbccouk2hiasia-pacific7718246stm

UNHRC 39 of 44

the executions or death sentences recorded (in 2010) in China Egypt Indonesia Iran Laos

Libya Thailand United Arab Emirates and Yemen were for drug-related offences In December

2010 the amended Anti-Narcotics law came into force in Iran extending the scope of the death

penalty to include additional categories of illegal drugs (for example crystal meth) possession

of which became punishable by death Also around the same time the National Assembly of

Gambia voted to extend the scope of the death penalty by making the possession of more than

250g of heroin or cocaine an offence punishable by death159

Several states allow for the death penalty for crimes of blasphemy and other crimes for

nonviolent expression and association In Pakistan Aasia Bibi a Christian mother of five was

charged with blasphemy and sentenced to death after a trial largely believed to be unfair on 8

November 2010 She is currently on death row The country is also noted for its laws concerning

capital crimes The list includes 27 crimes most of which go beyond the notion of ―most serious

crimes as recommended by the International Covenant on Civil and Political Rights Extra-

marital sex and blasphemy are examples of some capital crimes in the country In December

2007 Pakistan voted against a United Nation General Assembly resolution for a moratorium on

the death penalty The year before however the nation amended its law on rape and adultery

charges which are no longer punishable by death160

As far back as 1989 recommendations have been made as to how to abolish the death penalty

Member states (of the UN) have been urged ―to publish for each category of offence for which

the death penalty is authorized and if possible on an annual basis information about the use of

the death penalty including the number of persons sentenced to death the number of executions

actually carried out the number of persons under sentence of death the number of death

sentences reversed or commuted on appeal and the number of instances in which clemency has

been granted and to include information on the extent to which the safeguards referred to above

are incorporated in national law161

The committee must inspect how far this recommendation

has been adopted and should seek to rectify the weaknesses in the system of gradually

abolishing the death penalty Can a target year be designated by which crimes meriting the death

penalty could be made universal How can countries with non-secular legal systems be brought

into the fold of international law

159

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 160

httpwwwfiacatorgenIMGpdfdppakistan-enpdf 161

httpgraduateinstitutechfacultyclaphamhrdocdocsecosocresolutiondeathpen1989html

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 5: UNHRCFINAL

UNHRC 1 of 44

Introduction to the Human Rights Council

World War II saw some of the worst atrocities of human history It was in the aftermath of the

inability of the League of Nations to prevent international unrest and human rights violations that

the United Nations Charter was promulgated and the UN was set up in 1945 The foundational

premise from which the UNlsquos committees and councils derive their agendas is the protection of

fundamental human rights It is in this vein that the Human Rights Council (and the Commission

it replaced) performs the most integral of functions of the UN Subsequent to the Charter

another landmark document was drawn up in 1948 namely the Universal Declaration of Human

Rights It was the first explicit global expression of the worldlsquos commitment to upholding the

sanctity of human rights It is from the permanent and unprecedented potency of the Declaration

that all subsequent human rights conventions and treaties have been derived both within and

outside of the UN Together with the International Covenant on Economic Social and Cultural

Rights and the International Covenant on Civil and Political Rights it forms the International

Bill of Human Rights

It was through the UN Charter that the Commission on Human Rights was established in 1946

with the purpose of promoting and protecting rights internationally Even though the

Commission successfully achieved the creation of the Universal Declaration of Human Rights it

was repeatedly censured for lacking constructive discussion on human rights issues It was

allegedly used a medium to blame countries and settle political scores It was also critiqued for

being composed of member nations with questionable human rights records such as China Cuba

Zimbabwe and Sudan This among other things led to the replacement of the Commission with

the Council The Council was formed in 2006 through a resolution of the General Assembly

(Resolution 60251)1 that passed with an overwhelming majority The UN Secretary General at

1 GA Resolution 60251 httpwww2ohchrorgenglishbodieshrcouncildocsARES60251_Enpdf

UNHRC 2 of 44

that time Kofi Annan referred to it as a historic resolution that gives the United Nations a

much needed chance to make a new beginning in its work for human rights around the world

The main aim of the Council is to report to the General Assembly and work with it to improve

the situation of global human rights As a specialized body it focuses solely on human rights and

managing the protection and advancement of the human rights of all individuals It aims to

promote universal respect for the protection of all human rights and fundamental freedoms as

demarcated in the International Bill of Rights and the UN Charter for all without distinction of

any kind and in a fair and equal manner Recommendations are made on all documented human

rights violations including gross and systematic violations

The Council can only make recommendations on violations of human rights to the GA which in

turn can suspend the voting rights of the accused Council member The Council also makes

recommendations to the GA for further development of international law in the field of human

rights

The Council comprises of 47 members elected on a geographic quota-based criterion for three-

year-long terms Members elected into the Council by the General Assembly must ―uphold the

highest standards in the promotion and protection of human rights fully cooperate with the

Council and be reviewed under the universal period review mechanism during their term 2

A year after its inception the Human Rights Council designed Resolution 51 in order to provide

mechanisms through which human rights situations could be monitored3 The Resolution

included the Universal Periodic Review (UPR) system4 Through this human rights situations in

individual UN member states are reviewed and subsequently discussed by the entire Council

sitting as a working group through an interactive dialogue with the concerned State The Review

system incentivizes states to independently reform and review domestic human rights situations

prior to international inspection which facilitates the fulfillment of the aim of the Council

Human rights situations are meant to be reviewed on a rotational basis for all 192 UN member

states

2 httpwww2ohchrorgenglishbodieshrcouncildocspledgespdf

3 Resolution 51 httpapohchrorgdocumentsEHRCresolutionsA_HRC_RES_5_1doc

4 Please see the following for information on the UPR of China

httpwwwohchrorgENHRBodiesUPRPagesCNSession4aspx

UNHRC 3 of 44

Conference underway at the UNHRC in Geneva

The Resolution also included the delineation of Special Procedureslsquo established by the former

Commission on Human Rights to comprise of five-member working groups or individual

experts (commonly referred to as Special Rapporteurs) to monitor human rights violations in

thematic or country-specific loci There are currently five Working Groups on people of African

descent on Arbitrary Detention on Enforced or Involuntary Disappearances on the Use of

Mercenaries to Impede the Right of Peoples to Self-Determination and on Situations

(Confidential 1503 Procedure)5

The mandates of the Special Procedures are established and defined by the resolution creating

them Some of the thematic mandates adopted by the Council include the issue of human rights

defenders torture and minorities Special Rapporteurs often conduct fact-finding missions

in countries to investigate allegations of human rights violations They can only visit

countries that have agreed to invite them

The Council is currently headed by Laura Dupuy Lasserre of Uruguay It concluded its

eighteenth session in September 2011 The diversity of the political and social issues

encompassed in the agenda resulted in discussion of issues as varied as the situation in Libya on

one end and water sanitation on the other Also discussed was the situation of human rights in

Syria and the pattern of widespread systematic human rights violations by Syrian security and

military forces was examined The illegal blockade imposed on Gaza was also under focus

Furthermore the Council adopted the outcomes resulting from debate over the Universal

Periodic Review of sixteen countries

5 httpwww2ohchrorgenglishbodieschrworkinggroupshtm

UNHRC 4 of 44

While the Council faces criticism along the lines of that made against the Commission it has

come a long way from being the ―shadow on the ―reputation of the UN system as whole 6

6 httpnewsbbccouk2hiamericas6919268stm

UNHRC 5 of 44

Topic Area A The Great Firewall of China Review of the Human Rights Situation

Introduction to the Topic Area

The Peoplelsquos Republic of China is the worldlsquos most populous country with an estimated

population of 137 billion It is also one of the largest countries in terms of its land territory

China has firmly established itself as a premier world economic powerhouse It is the worlds

second-largest economy after the United States by both nominal GDP ($593 trillion) and

purchasing power parity ($1012 trillion) A single-party state governed by the Communist Party

of China it is widely acknowledged to be the worlds fastest-growing major economy and the

worlds largest exporter and second-largest importer of goods China is also a permanent member

of the UNSC and is a prominent figure in international politics It is a recognized nuclear

weapons state and has the worlds largest standing army with the second-largest defense budget

China is on par with the United States as a superpower and is soon even expected to supersede

the latter as the worldlsquos major politico-economic power

However Chinalsquos record in relation to human rights violations stands out for all the wrong

reasons China has been ruled by the Communist Party since it gained power and established the

Peoplelsquos Republic of China in 1949 It is believed to be in breach of numerous human rights and

its transgressions are a subject of much concern for the entire international community Some

issues like the Tiananmen Square of 1989 or that of Mr Liu Xiaobolsquos imprisonment have seen

the light of day and escaped the iron clutches of Chinese control on media However thousands

of other cases are never brought out into the open and are unable to draw international attention

which is why this year at LUMUNlsquos United Nations Human Rights Council the debate will focus

on China and its human rights violations The human rights abuses in focus will be Chinalsquos

violation of reproductive rights the case of internet censorship in China and the right to free

speech political prisoners in China and illegal detention the infringement of rights in the

conflict with Tibet and ethnic minority rights

The committee will not only be expected to discuss all aspects of the issues distinctly and in

extensive detail The committee will also be expected to be familiar with the Universal

Declaration of Human Rights all pertinent treaties resolutions and conventions

UNHRC 6 of 44

Chinarsquos Violation of Reproductive Rights

While reproductive rights are not specifically mentioned in the Universal Declaration of Human

Rights they are widely understood to be an extension of the freedom of choice and right to life

They are to be granted equally to all humans without discrimination of race sex language or

religion under the United Nations Charter7 Reproductive rights embrace certain human rights

that are already recognized in national laws international human rights documents and other

relevant UN consensus documents The World Health Organization defines reproductive rights

in the following manner

ldquoReproductive rights rest on the recognition of the basic right of all couples and individuals to

decide freely and responsibly the number spacing and timing of their children and to have the

information and means to do so and the right to attain the highest standard of sexual and

reproductive health They also include the right of all to make decisions concerning reproduction

free of discrimination coercion and violence8rdquo

Only if individuals have the freedom to be in control of their sexual and reproductive lives can

uninhibited social development occur However the lack of any binding international covenant

on the subject is a grave state of affairs Soft laws in the form of non-binding measures are

often deemed too inadequate in mounting a challenge against the issue The United Nations

Human Rights Council has the capacity to make recommendations for the revision of the

aforementioned fact and will be something that the committee should focus on

Reproductive rights include in their spectrum the right to legal or safe abortion the right to

access quality reproductive healthcare the right to birth control and the right to education in

order to make well-informed reproductive choices without any coercion or violence9 Equality

and equity for men and women is of paramount importance while addressing such civil liberties

so that individuals are able to make free and informed choices in all spheres of life without any

discrimination of any kind An essential aspect of the debate is related to the right to privacy that

all individuals must be granted in the process of their decision-making

The provision of such personal human rights is notably absent in China With the stern

implementation of the one-childlsquo policy10

China has undertaken extreme measures at the cost

of innumerable human rights to curtail population growth Despite having previously ratified the

7 Article 1 of the UN Charter httpwwwunorgendocumentscharterchapter1shtml

8 Gender and reproductive rights home page httpwwwwhointreproductivehealthen

9Amnesty International USA

httpwwwamnestyusaorgStop_Violence_Against_Women_SVAWReproductive_Rightspagedoid=1108242ampn

1=3ampn2=39ampn3=1101 10

Article 18 of Population and Family Planning Law of Peoplelsquos Republic of China

httpwwwunescaporgesidpsispopulationdatabasepoplawslaw_chinachina20pop20and20family20plan

ningpdf

UNHRC 7 of 44

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in

198011

which prohibits coercion in family planning policies12

China continues to dictate the

reproductive lives of all its citizens While the Law on Population and Family Planning states

that one child is mostly merely encouraged abusive or coercive enforcement measures such as

forced abortions compulsory sterilizations and the forced insertion of intra-uterine devices after

abortions or births are common practices that are regularly documented13

Forced sterilizations are a troublingly common practice in other regions as well Perulsquos case is

important in this regard with its program of achieving a target number of sterilizations each

year sometimes numbering in the hundreds of thousands Indeed the government would

sometimes bribe women to undergo these procedures in exchange for food and medicine for

their existing children 14

A system of enhanced monitoring strategies is often regarded as one of

the solutions to the problem

Another pervasive measure employed by the state is the routine monitoring of the menstrual

cycle of women particularly those in the child-bearing age by family planning officials15

Their

employment is often contingent upon compliance with the policy The right to privacy is

severely breached in all such instances Furthermore unmarried women are not allowed to have

children and even married couples must apply for a birth permit before they can legally bear

children16

Analyzing the statelsquos penetrating involvement and interference in the private spheres

of individuals in light of existing treaties and conventions will be one of the committeelsquos tasks

Women and couples who defy the policy face fines amounting to several yearslsquo salary have their

access to social services cut and are even imprisoned in certain cases Their so-called black

childrenlsquo have no legal status in China meaning these children are not granted any rights

whatsoever and do not have access to education health or any other services provided by the

State There are an estimated 6 million undocumented children in China most of which are

believed to be girls17

The cases of Mao Hengfeng and Chen Guangchengserve as prime examples demonstrating the

inhumane nature of penalties handed out by the Chinese state to violators of the one-child

policy18

Mao a human rights activist was sentenced to two and a half years in prison after she

refused to have an abortion Chen was a blind self-taught lawyer and activist who was charged

and punished with more than four years in prison after exposing abuses in the implementation of

the one-child policy

11

httpunifem-eseasiaorgChina 12

httptreatiesunorgPagesViewDetailsaspxsrc=TREATYampmtdsg_no=IV-8ampchapter=4amplang=en 13

httpwwwrhrealitycheckorgnode7926 14

httpwwwwebsteredu~woolflmforcedsterilizationhtml 15

Page 2 httpwwwcensusgovpopulationinternationalfilesspSP73pdf 16

httpfactsanddetailscomchinaphpitemid=128ampcatid=4ampsubcatid=15 17

Ibid 18

httpwwwrhrealitycheckorgnode7926

UNHRC 8 of 44

The appalling state of affairs is further augmented by the actions the Chinese state takes to

impede the birth of conceived children It implements very strictly a program of compulsory

sterilization and forced abortions to minimize the birth of a second child in a family While

abortion itself may be a debatable and controversial topic the subset of such a controversy in the

form of a state-regulated forced abortion is excruciatingly black and white The undeniable

cruelty of forced abortions is not a deterrent strong enough for the Chinese government and the

phenomenon exists widely in China In fact the policy leads to an estimated 13 million abortions

every year with many of those ordered by local authorities Infanticide is a common practice

especially in the rural areas of the country19

Women are abducted by the state and at the cost of

their lives are forced to undergo forced and mostly unsafe abortions

In October of 2010 China forced an eight-month pregnant woman into an abortion for breaching

the one-child policy20

Government officials entered Xiao Aiyinglsquos residence hit and kicked her

in the stomach and subsequently dragged her to the hospital where doctors injected her with a

lethal drug to kill her unborn baby Xiaolsquos husband later described the incident They held her

hands behind her back and pushed her head against the wall and kicked her in the stomachlsquo The

animalistic discourse adopted by the government officials is a testimony to Chinalsquos open rebuke

for human rights More recently Womenlsquos Rights without Frontierslsquo and China Aidlsquo reported

the death of a six-month pregnant woman during a forced abortion on October 12th

201121

Jihong Ma was seized by Family Planning Officials for a forced abortion having violated the

one-child policy

While the positive environmental impact of the prevention of 300 to 400 million births may be

cited22

it must be noted the one-child policy privileges only the wealthy who can afford the

fines for additional births and have better access to contraceptives and health care while

punishing the poor who are financially crippled by the fines incurred for additional births

Moreover this policy punishes the children of the poor because they are more likely to be kept

hidden from the state and thus will not have access to health care and the education they need to

climb out of poverty In this way social disparity is further perpetuated within the existing

framework

Another adverse byproduct of Chinas 30-year-old family planning policy is the gender

imbalance that is now manifested most clearly among those of marrying age The British

Medical Journal claimed that in 2005 there were 32 million more males than females (under the

age of 20) in China23

Even though China banned prenatal sex screening in 199424

illegal

ultrasound tests allow prospective parents to choose the gender they prefer for their only child

19

httpwwwdailymailcouknewsarticle-1322601China-forces-woman-abortion-EIGHT-months-breaching-

child-policyhtml 20

Ibid 21

httpwwwwomensrightswithoutfrontiersorgblogp=429 22

―Has Chinas one-child policy worked httpnewsbbccouk2hiasia-pacific7000931stm 23

British Medical Journal BMJ 2009 338b1211 httpwwwbmjcomcontent338bmjb1211full 24

―A Brief History of Chinas One-Child Policy httpwwwtimecomtimeworldarticle08599191286100html

UNHRC 9 of 44

creating a massive imbalance This imbalance will lead to drastic results in the next few years an

implication the committee needs to take in account when establishing a framework for

responding to the issue

The Human Rights Council conducted a Universal Periodic Review of China in 200925

to much

international consternation and surprise the report lacked substantial evidence implicating

China and was instead found to be extremely vague The role of the United Nations in defining

and drawing attention to the issue is of key significance and the Human Rights Council must

make recommendations on how the United Nations can enhance its capacity in laying the

foundations for the case The Council can also make recommendations regarding the changes

that can be brought about in the conduct of the Review and otherwise in order to be able to

contain the issue with lesser difficulty

The committee will be called upon to review reproductive rights in detail including the implicit

and explicit consequences on the people of China Access to reproductive healthcare is a

problem the world over and is often consciously violated by states Is there a way to control

these violations perhaps through devising enhanced monitoring strategies

The Case of Internet Censorship in China and the Right to Free Speech

Everyone has the right to freedom of opinion and expression this right includes freedom to hold

opinions without interference and to seek receive and impart information and ideas through any

media and regardless of frontiers26

- Article 19 Universal Declaration of Human Rights

Everyone shall have the right to freedom of expression this right shall include freedom to seek

receive and impart information and ideas of all kinds regardless of frontiers either orally in

writing or in print in the form of art or through any other media of his choice 27

- Article 19 (2) International Covenant on Civil and

Political Rights

The Peoplelsquos Republic of China along with being the most populous region of the world is also

home to the worldlsquos largest collection of internet users According to Xinhua Chinalsquos state-run

English news agency Chinalsquos internet user ship exceeded 500 million users as of September

201128

China is also the worldlsquos largest media market However despite these impressive

statistics it is both interesting and disturbing to note that the Republic is also remarkable for its

25

httplibohchrorgHRBodiesUPRDocumentsSession4CNA_HRC_WG6_4_CHN_3_Epdf 26

httpwwwohchrorgENUDHRDocumentsUDHR_Translationsengpdf The Universal Declaration of Human

Rights 27

httpwww2ohchrorgenglishlawpdfccprpdf The International Covenant on Civil and Political Rights 28

httpnewsxinhuanetcomenglish2010china2011-0929c_131167919htm

UNHRC 10 of 44

censorship history About a dozen government bodies control internet usage including the

Ministry of Public Security29

It has been noted that while the Chinese advertising industry is

booming this freedom does not extend to editorial content of newspapers30

This phenomenon of

Chinese censorship has been labeled in the mainstream global media as the Great Firewall of

China The Firewall serves to filter both the information coming into China as well as

information generated within the nation It is beyond being a clever pun a matter of concern for

the committee because of its repressive characteristic The State imposes such extreme

restrictions of freedom of information under the premise of protection of its nationalistic

interests However its negative connotation is much obvious and its resemblance to Orwelllsquos

Ministry of Truth and the notion of thought control is uncanny The Peoplelsquos Republic has signed

(not ratified) the International Covenant on Civil and Political Rights The committee can look

into the reasons behind this as well as assess current global membership to the covenant

Chinalsquos Internet censorship is centered on the control of political thought The Measures on the

Administration of Internet Information Services and the Provisions on the Administration of

Internet News and Information Services are the two main instruments used to do so31

Section 19

of the latter deserves special attention and casts its scope to prohibit activities that disrupt

―national policies on religion propagating evil cults and feudal superstitions jeopardize ―the

security of the nation harm ―integrity of the nationlsquos unity or ―the honor or the interests of the

nation among other things32

Regulations are so stringent that in 2008 only eight websites out

of a total of 430000 in Guangdong Province ndash Chinalsquos most populous region -- were able to

obtain news publication qualifications permits33

The Internet news and information services entities engaging in Internet news and information

services shall abide by the Constitution laws and regulations by persisting in providing service

for the people and serving socialism and guiding public opinion to protect the interests of the

nation and the public

- Article 3 Provisions on the Administration of Internet News and Information Services

The national report submitted by China to the Working Group for the Universal Periodic Review

in 2009 exhibited the governmentlsquos opinion that ―with such easy fast and diverse ways of

gaining access to information and expressing opinion including criticism of the Government

Chinese citizens are enjoying an entirely new lifestyle34

According to a white paper published

29

httpwwwhrworgreports2006china08063htm_ftnref28 30

httpnewsbbccouk2hiafricacountry_profiles1287798stm 31

httpwwwhrichinaorgcrfarticle3244 32

httpwwwchinaitlaworgp1=printampp2=051006175116 Provisions on the Administration of Internet News and

Information Services

Please peruse the following httpwwwhrworgreports2006china08063htm for commentary on the Provisions 33

Ibid 34

httplibohchrorgHRBodiesUPRDocumentsSession4CNA_HRC_WG6_4_CHN_1_Epdf

UNHRC 11 of 44

in 2008 by the Information Office of the State Council the internet is a ―crystallization of human

wisdom and ―Chinese citizens fully enjoy freedom of speech on the internet 35

Chinalsquos policies have relevance beyond

their contravention of what may seem to be

abstract principles China has jailed the

largest number of internet dissidents the

world over The case of Liu Shaokun for

example is a notable one He was a

teacher in Sichuan province which had

been hit in 2008 by a ravaging earthquake

around the time of the Summer Olympics

in Beijing China had been praised for

allowing reporters to openly cover the

earthquake Much of this openness however was part of a bid to soothe the international

community and project Beijinglsquos image as being the perfect venue for the Olympics Shaokun

however was sentenced to a year of labor for posting photographs of schools affected by the

earthquake He is among countless others who have been silenced36

When the Arab Spring flowered over the Middle East China cracked down on many social

networking sites to curb pro-democracy sentiments Amongst these was LinkedIn blocked over

the fact that one of its users had mentioned the possibility of a ―Jasmine Revolution in China37

The government blocks discussions about the Dalai Lama the Tiananmen Square protests and

the Falun Gong spiritual movement among other things In April of 2007 the Chinese version of

MySpace launched but lacked discussion forums centered on the aforementioned topics among

others including Taiwanlsquos independence In 2010 Google considered withdrawing its services

from China after a spur of cyber-attacks on email accounts of human rights activists 38

Google

and the government reached a deal whereby Google operated by Chinese guidelines within

mainland China However Google has a non-censored operation running in Hong Kong to

which it started routing customers in 2010 when it had concerns over Google accounts being

hacked by authorities It is testament to Chinese control that companies such as Google are

forced to enter the internet market on its terms Other instances of well renowned internet

websites being blocked or affronted include Twitter being banned during the 20th

anniversary of

the Tiananmen killings

The Committee to Protect Journalists ranks China as one of the worst internet censors The

Chinese government has been alleged of carrying out ―spear-phishing whereby spying software

disguised as legitimate emails is installed on computers that belong invariably to journalists

35

httpchinaorgcngovernmentwhitepapernode_7093508htm 36

httpcpjorgreports201012cpj-journalist-prison-census-iran-china-highest-14-yearsphp 37

httpwwwbbccouknewstechnology-12586462 38

httpnewsbbccouk2hi8460129stm Please look at this link for a timeline of Chinalsquos internet history

UNHRC 12 of 44

Victims included those writing about Liu Xiaobo the imprisoned human rights defender who

received the Nobel Peace Prize in 201039

According to statistics over 80 of Chinas netizens rely mainly on the Internet for news 40

With this state of affairs and increasing dependence the world over on the internet as a major

source of information discussing information monopolies is crucial To isolate a country of over

a billion and deny it access to information in the age of technology may not seem a palpable

physical or otherwise contravention of human rights however its consequences are

tremendous While one may think that media censorship is restricted to dictatorial regimes the

case of China serves to refute that line of thought Media censorship is prevalent even in

countries as varied as Indonesia India Mexico and Russia ndash all of whom rank relatively low on

the Press Freedom Index41

Looking at instances worldwide and the justifications given for

restricting rights will be a useful direction to take while researching

The following website is a useful tool to check the status of websites in China

httpwwwgreatfirewallofchinaorg

Political Prisoners in China and Illegal Detention

Political prisoners are those whose imprisonment is carried out arbitrarily on contestable and

controversial grounds Governments detain certain individuals on the basis of allegedly valid

grounds which are not always disclosed or declared Many detainees charge existence of ulterior

motives or extrajudicial reasons on part of the state for their detention The phenomenon of

political prisoners is often associated with closed regimes such as Burma and the DPRK

However the Peoplelsquos Republic of China too does not escape scrutiny when the topic of political

prisoners is at hand The phenomenon of political prisoners resonates so loudly in the

international spheres particularly because governments deny the existence of political prisoners

they claim that all detainees are lawfully held under criminal law The unfair detainment of

persons or the capture of people to serve the interests of a government contravenes many human

rights including freedom of expression association and assembly Indeed a countrylsquos political

imprisonment record is one of the crucial indicators of its human rights situation

Amnesty International views political prisoners as prisoners of conscience These are more

specifically ―people who have been jailed because of their political religious or other

conscientiously-held beliefs ethnic origin sex color language national or social origin

economic status birth sexual orientation or other status42

39

httpwwwcpjorgreports201105the-10-tools-of-online-oppressorsphp 40

httpchinaorgcngovernmentwhitepapernode_7093508htm 41

httpenrsforgpress-freedom-index-20101034html 42

httpwwwamnestyusaorgour-workissuesprisoners-and-people-at-riskprisoners-of-conscience

UNHRC 13 of 44

According to the (US) Congressional Executive Commission on China over 5000 cases of

politically or religiously motivated imprisonments have been made It has detailed documented

information on the status of 1452 of these prisoners and

notes that its information is far from complete and that the

true story of Chinalsquos political prisoners remains unknown 43

The plight of political prisoners in China is speculated upon

by various international organizations Among these is the

Human Rights Watch which has gone as far as labeling the

locations for holding political prisoners ―black jails and

―alleyways in hell Officially though the Chinese

government denies the existence of political prisoners Subsequent to Chinalsquos Universal Periodic

Review an outcome report was published which came under fire from various sides The Human

Rights Watch called the substance of the report to be ―manifestly so far removed from reality

that [it] would immediately discredit anybody that adopted them in a report 44

In the report of

the UNHRC Working Group subsequent to Chinalsquos UPR it is stated that the Chinese

government does not use ―state secrets to suppress human rights defenders 45

It is precisely this

situation that our simulation wishes to remedy discussion should be fact based

The ground realities are different In 2010 Chinese activist and human rights defender Mr Liu

Xiaobo was awarded the Nobel Peace Prize He was jailed by Chinese authorities for

distributing his ―Charter 08 a document that called for freedom of expression and of assembly

among other things The government incarcerated him for an 11 year time-period on the charge

of subversion Subsequent to the prize the Chinese government came down hard on other human

rights activists Indeed those celebrating the awarding of the prize to Mr Xiaobo were arrested

arbitrarily While distributing fliers celebrating the win many were imprisoned on the grounds of

―inciting subversion of state power The Report of the Special Rapporteur on the situation of

human rights defenders published in 2011 makes mention of these facts46

The Chinese

government labeled the award an ―obscenity It is vague allegations such as these that allow

governments to thwart dissidents As expected though according to the report of the HRC

Working Group No individual or press has been penalized for voicing their opinions or

views47

When discussing China and political prisoners it is important to mention the Falun Gong

movement It is a spiritual variant of Buddhism and originated in China on the basis of the

teachings of its founder Li Hongzhi The movement was supported within the Chinese

43

httpwwwceccgovpagesvictims20101010_PPD_AR10pdfPHPSESSID=705596c0e91f35e392e6f0ecbb78d6

7c 44

httpwwwhrworgennews20090610human-rights-watch-statement-upr-outcome-report-china 45

httpdaccess-dds-nyunorgdocUNDOCGENG0916299PDFG0916299pdfOpenElement 46

httpwww2ohchrorgenglishissuesdefendersdocsAHRC1644Add1_EFSonlypdf Page 63 47

httpdaccess-dds-nyunorgdocUNDOCGENG0916299PDFG0916299pdfOpenElement Para 71

UNHRC 14 of 44

officialdom initially However Falun Gonglsquos popularity within the masses as well as its

independence from the state and its spiritual teachings was soon perceived as a threat to the

government By the late 1990lsquos the Chinese government cracked down on the movement and

labeled it as a heretical organization Chinese legislation uses the expression ―Xiejiao zuzhi to

refer to a wide range of sectarian or unorthodox religious groups which do not meet official

approval The Falun Gong movement is included in this list48

The Falun Gong followers are the

worldlsquos largest group of prisoners of conscience The PRC often picks up practitioners and

accuses them of ―using an evil cult to destroy implementation of the law 49

China with its strict non-religious government did not take kindly to this new movement that

had garnered millions of followers both within China and internationally between 1992 and the

crackdown in 1999 Today Falun Gong is practiced freely in more than 70 countries around the

world with clubs and associations existing in a range of settings50

Beginning at the turn of the

millennium the authorities started to ban access to websites that contained material about the

movement Indeed a search on the movement on Chinalsquos Xinhua News Agency website will

even today yield nothing (It may be an interesting experiment for delegates to conduct) Those

who reported the initial crackdown were ―followed detained interrogated and threatened

according to a letter written in 1999 by The Foreign Correspondents Club (FCC) of China51

The Falun Gong movementlsquos official website deals with its persecution thus The complex

rationale behind the persecution can be broken into four elements a paranoid dictators fear of

Falun Gongs meteoric growth and soaring popularity that same dictators intense jealousy of

Falun Dafas popularity the inherent conflict between the communist regimes savage political

ideology and its polar oppositemdashFalun Dafas principles of Truthfulness Benevolence

Forbearance and the very nature of communism which to sustain itself requires periodically

labeling a small segment of the population as the class enemy to struggle against52

The Chinese crackdown on Falun Gong practitioners involved a ban on practicing it by the

Chinese Communist Party whose members as aforementioned were interestingly initially

adherents to the movement in significant numbers Indeed the party was divided from within

over their stance on the movement The government formulated an ―anti-cult law a few months

after issuing a warrant for the founderlsquos arrest ―During the first two years of the crackdown

between 150 and 450 group leaders and other members were tried for various crimes and

sentenced to prison terms of up to 18-20 years53

To this day ―central leaders turn a blind eye to

48

httpwwwamnestyorgenlibraryassetASA170112000en7a361a8e-df70-11dd-acaa-

7d9091d4638fasa170112000enhtml 49

httpwww2ohchrorgenglishissuesdefendersdocsAHRC1644Add1_EFSonlypdf 50

httpwwwfaluninfonettopic22 51

httpwwwamnestyorgenlibraryassetASA170112000en7a361a8e-df70-11dd-acaa-

7d9091d4638fasa170112000enhtml 52

httpwwwfalundafaorgengfaqshtmlpersecution 53

httpfpcstategovdocumentsorganization67820pdf Page 4

UNHRC 15 of 44

local methods of suppression against unrepentant practitioners including the reported use of

torture54

Also worth noting is the fact that Chinalsquos judicial system has been alleged to be anything but

conducive to providing justice to those using the system Indeed it is a repressive tool used by

the government to silence dissent China with its vast land mass and various provinces and

municipalities must work hard to keep its Centre strong Scores of individuals who are more

obscure than human rights activists and such are imprisoned by the government while ironically

seeking justice It has long been the custom for people of the countryside to seek justice in

Beijing if they felt that their local authorities had treated them unfairly However modern China

has not taken kindly to this tradition Local authorities are evaluated on the basis of the number

of complaints the Centre receives about them Thus they have a vested interest in thwarting the

reports of any complaints about them to Beijing Those who complain are whisked off to black

jails where ―detainees are denied access to legal counsel and in most cases contact with family

and friends They ―are kept under constant surveillance and subject to often arbitrary physical

and psychological abuse55

Chinalsquos record with regard to political prisoners and its tradition of suppressing dissent are

exacerbated by the sheer scale on which dissent is thwarted The aspect of potential torture of

prisoners further complicates the issue It is troubling that the issue of Chinese political prisoners

only gained international prominence with the case of Mr Liu Xiaobo It is not the only nation in

the world to adopt such strict policies in order to further its own ideology and the committee will

do well to ruminate upon how this tradition can be discontinued so as to allow people their

essential political freedoms

The Infringement of Rights in the Conflict with Tibet

Despite the furor that has been inconsistently directed towards its human rights record China

continues to impose tightening restrictions on rights of expression association and assembly

The Chinese government carries on devising social and economic changes that retain its firm

authority over its citizens which in turn enables a host of human rights violations In the context

of Tibet China has failed to address the grievances of the people there who have been made

victims of social discrimination and have unequal access to opportunities Scores of Tibetans are

marginalized and detained for their religious inclinations which are further suppressed by the

imposition of intense patriotic educationlsquo campaigns whereby socialism is furthered and all sorts

of religious or individualistic tendencies are thwarted

54

Ibid Page 5 55

httpwwwhrworgreports20091112alleyway-hell-0 Page 4

UNHRC 16 of 44

Despite its totalitarian approach China refuses to accept responsibility for the issue Instead it

blames westernlsquo forces for trying to instigate separatism56

The indifference on the part of

China with particular regard to Tibet is apparent with Chinese authoritieslsquo continuous rejection

of ―inconvenient requests by UN human rights experts for visits to the Tibet Autonomous

Region57

During 1912 and 1951 Tibet underwent a period of de facto independence58

While it was still

territorially a part of China it enjoyed relative freedom in its political discourse Tibetan

autonomy was confined within the context of Chinese suzerainty and should not be interpreted

as unrestrained political independence Since 1951 however the Chinese government has taken

steps to ensure its absolute and undeniable dominance over Tibet from which emanates the strife

under discussion Gross violations of human rights have taken place in China administered by

officials with the purpose of cultivating consent with regard to its control over the region

Suppression has led to the inevitable extensive discontent in Tibet a fury which was unleashed

in 2008 The Tibetan unrest of 2008 was a series of protests and demonstrations - not merely in

the Tibet Autonomous Region but elsewhere as well - that later transformed into rioting burning

looting and even killing59

The rioters set fire to state vehicles and clashed violently with the

police installed in the region The crackdown of Chinese authorities in response to the riots was

severe resulting in deaths on both sides and mass imprisonment by state authorities The degree

to which human rights were violated and abused during this crackdown cannot be overstated

The Chinese also revoked the freedom of sharing of information and imposed a ban on the entry

of media officials in the region to contain

information about the unrest and play down

protests60

A Tibetan Government in Exile has existed in India

since 1959 established by the 14th

Dalai Lama61

This Central Tibetan Administration considers the

issue as an illegitimate military occupation by the

Chinese state The Administration works with the

agendas of restoration of freedom in Tibet and rehabilitation of Tibetan refugees

Historical facts refute such a fallacy however The simple reality that the installation of the 14th Dalai Lama

needed the approval of the national government is sufficient proof that Tibet did not possess any independent power

during that period ndash (httpwwwchinaorgcne-whitetibet9-2htm)

56

httpwwwunhcrorgrefworldcountryAMNESTYCHN49b8dfc11a0html 57

Ibid 58

Grunfeld A Tom Reassessing Tibet Policy 2000 59

httpwwwnytimescom20080316worldasia16iht-tibet111134870html 60

Watts Jonathan Branigan Tania (March 18 2008) Tension rises as armed police mass in capital The

Guardian (London) Retrieved November 1 2011 61

httpwwwtibetnetenindexphpid=14

UNHRC 17 of 44

The censured freedom of expression is one of the multiple infringements on rights that are

imposed by China on Tibet Tibetans are denied the basic right to articulate their views through

political discourse Human rights activists advocate the freedom of speech for Tibetans under the

existing and future political arrangements Religious and political figures in Tibet are placed

under house arrest limiting their freedom of movement (in contradiction to article 13 of the

Universal Declaration of Human Rights)62

As was highlighted during the unrest in 2008 China

has often stripped the Tibetan population of its fundamental rights to associate and assemble In

2000 nine Tibetan prisoners in Kandze were charged for participating in a peaceful protest to

five-year prison terms in October 1999 (which were later increased to ten-year terms)63

This example leads us to another crop of abuse conducted overtly by Chinese authorities

arbitrary detention Article 9 of the Universal Declaration of Human Rights reads ―No one shall

be subjected to arbitrary arrest detention or exile64

Chinese law however permits authorities

to detain persons without formally arresting or charging them and persons may be sentenced

administratively to up to 3 years in reeducation-through-labor camps and other similar facilities

without a trial

Chinese authorities have been unresponsive to concerns expressed by the United Nations

Working Group on Arbitrary Detention No counter-explanation was given either over the case

of three Tibetans who had their sentences extended for staging a peaceful political protest during

the Working Groups visit to Drapchi in October 1997 despite international pressure65

Infinite

examples of arbitrary arrests and detentions exist in China international authorities have called

on China to cease this practice and release such detainees immediately absent evidence that they

have engaged in criminal acts No state can or should be able to hold anyone for engaging in

peaceful political activity All humans

should be granted internationally recognized

due-process protections which includes the

right to be informed of the charges leveled

against them66

The question of whether

these detainees are given an impartial trial if

one at all is not even raised

In addition to the arrests carried out in

violation of international law there are

grave evidences of abuses during detention

62

httpwwwhrworgnews20000612human-rights-violations-tibet 63

Ibid 64

httpwwwunorgendocumentsudhr 65

httpwwwhrworgnews20000612human-rights-violations-tibet 66

httpwwwhrworgnews20000612human-rights-violations-tibet

UNHRC 18 of 44

Incidences of beatings at time of arrest and torture (including the administration of electric

shocks and deprivation of food and medical treatment)67

during custody are widely reported

These are not isolated cases rather the product of a holistic policy of dealing with political

dissidents In one notable incident in May 1998 political prisoners in Drapchi staged major

protests to coincide with a visit from a European Union delegation The protests were non-

violent but the authorities reaction was severe several protestors were shot at and one monk

Lobsang Gelek subsequently died68

The Convention Against Torture (CAT ratified by China in 1988) requires the state to prevent

torture and punish those in violation of the law China has not amended its own laws to comply

with even the first article of CAT69

Such practices explicitly stand in contempt of Article 5 of

the Universal Declaration of Rights which censures the use of torture or cruel treatment as

punishment Dr Manfred Nowak the UN Special Rapporteur on Torture stated that ―he was

struck by the strictness of prison discipline and a palpable level of fear and self-censorship when

talking to detainees following his brief assessment of Chinese and Tibetan prisons in 200570

The committee will be looked upon to review ways in which the situation can be monitored more

carefully and what responses if any can be cultivated to impede similar future actions by

China

The continued violations of religious freedom and implementation of policies designed to

diminish religious practices by the State to serve its political needs is a cause of concern Again

referring to the Universal Declaration of Human Rights Article 18 reads ―Everyone has the right

to freedom ofhellipreligion this right includes freedomhellipto manifest his religion or belief in

teaching practice worship and observance71

The policies implemented by Chinese authorities

through use of coercion violent repression and imprisonment impinge upon the freedom of

Tibetans to practice their religion freely China has also strictly enforced re-education programs

for dissident factors within the state The program is aimed at ―combating separatism protecting

stability and promoting development and is intended to reform the political ideology of people

who refuse to accept state control of what they perceive as vital aspects of their religious lives

and beliefs The committee will be expected to deliberate upon the protection of religious

freedom and practices of individuals as well as the validity of these re-education programs in

light of human rights and liberties

Tibet is not the only region where political tensions surrounding autonomy run high The

Kosovo-Serbian conflict is pertinent to recall The Republic of Kosovo declared itself to be an

independent entity on February 17 2008 As of 11 October 2011 85 UN states recognize the

independence of Kosovo However Serbia maintains that Kosovo is a UN governed entity under

67

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 68

httpwwwfreetibetorgabouttorture 69

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 70

Ibid 71

httpwwwunorgendocumentsudhr

UNHRC 19 of 44

its sovereignty Russia and China are among those who do not recognize the Republic while the

USA UK and France have recognized Kosovolsquos declaration of independence This highlights the

rift between the United Nations Security Council over the issue The case of Tibet is all the more

important in light of the fact that many such pockets exist in the world struggling for self-

determination

Media Links

httpwwwfreetibetorgnewsmedia2008-protests-summary

httpwwwguardiancoukworldgallery2008mar19tibetchinapicture=333178281ampindex=7

Chinarsquos Violation of Ethnic Minority Rights

One of the greatest blemishes on Chinalsquos human rights record is in the area of ethnic minorities

and the extent to which China protects ethnic minority rights On paper Chinalsquos policies are

based on ethnic equality and regional ethnic autonomy Ethnic minorities are supposed to be

benefitting from preferential policies in the political economic cultural and educational spheres

However the ground realities are infinitely different Questions have been raised over the extent

to which the government fairly provides services to these minorities and allocates resources

equally to them The Chinese government is seen to largely prefer its Han majority The

minorities claim they are exploited for their resources and in turn not even provided with the

same level of social services as the Han people China is an atheistic government and the fact

that many ethnicities garner their identity in major part from their religious affiliation leads to a

precarious situation The Mongols Tibetans and Uighurs all come to mind when discussing the

issue of China and ethnic minority rights

―Everyone is entitled to all the rights and freedoms set forth in this Declaration without

distinction of any kind such as race colour sex language religion political or other opinion

national or social origin property birth or other status Furthermore no distinction shall be

made on the basis of the political jurisdictional or international status of the country or

territory to which a person belongs whether it be independent trust non-self-governing or

under any other limitation of sovereignty

- Article 2 Universal Declaration of Human Rights

The International Convention on the Elimination of Racial Discrimination defines racial

discrimination as any distinction exclusion restriction or preference based on race colour

descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the

recognition enjoyment or exercise on an equal footing of human rights and fundamental

UNHRC 20 of 44

freedoms in the political economic social cultural or any other field of public life72

It is due to

this that the international community has adopted the norm of subsuming ethnicity under the

terminology of race

―The Peoples Republic of China is a united multi-ethnic country So far 56 ethnic groups have

been identified and recognized by the central government The population of various ethnic

groups differs greatly While the Han ethnic group has the largest population and that of the

other 55 ethnic groups is relatively small so they are customarily referred to as ethnic

minoritieslsquo According to the fifth national census conducted in 2000 the population of all the

55 ethnic minority groups totaled 10449 million accounting for 841 percent of the total

population of China73

Chinas official 55 minorities are located primarily in the south west

and north of China Only Tibet and Xinjiang have a majority population of official minorities

while all other provinces municipalities and regions of China have a Han majority

One of Chinalsquos autonomous regions is the Xinjiang Uighur Autonomous Region (XUAR)

located in western China The area is vast accounting for one sixth of Chinalsquos land and houses

around 13 major ethnicities including the Uighurs who are a predominantly Muslim people with

origins in Central Asia The Uighurs have had strained ties with the state and have often resisted

Chinese authority74

In turn the Chinese government has reacted sometimes violently against

restless factions in the region One of the most passive aggressive forms of response on the part

of the Peoplelsquos Republic has been the encouragement of the migration of the Han people ndash

Chinalsquos ethnic majority ndash to the XUAR75

Around 90 of Xinjiangs population comprised of

Uighurs in 1949 now it is estimated that Uighurs make up only about 45 of the population76

The policies in Xinjiang are said to be designed to ―promote economic development not

demographic change In reality though the influx of migrants has amplified Uighur discontent

as Han and Uighurs compete over limited jobs and natural resources77

The United Stateslsquo

Congressional-Executive Commission on China reported that in 2006 the XPCC (Xinjiang

Production and Construction Core) reserved approximately 800 of 840 civil servant job openings

for Han Chinese78

One of the causes of the Han monopoly in the employment sector is the

linguistic advantage afforded to them and perpetuated by the education system As part of its

efforts to implicitly impose a unified culture the language policy was altered by the state with

an increased focus on use of Mandarin in schools at the expense of the local languages

Methods of education special to the ethnic peoples of the XUAR including the Muslim Uighurs

are suppressed For example a campaign by the PRC in 2001 targeted religious teachers and

72

httpwww2ohchrorgenglishlawcerdhtm 73

httpenglishgovcnofficial2005-0728content_18127htm 74

httpwwwcfrorgchinaeast-turkestan-islamic-movement-etimp9179 75

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p8 76

httpnewsbbccouk2hiasia-pacific3330803stm 77

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p4 78

httpwwwcolumbiaeducunewsclips20080801UighursTWPOSTpdf

UNHRC 21 of 44

endeavored to sever ties between mosques and groups involved in allegedly ―separatist

activities Around 8000 imams were required to undergo ―political reeducation in this regard

and become ―patriotic religious personalities Ethnic minorities are educated in ways that do not

allow them to learn their own languages or practice their own religion In 2001 for example a

Muslim girl was expelled from school for praying 79

Moreover in an attempt to further its socialist agenda and bind ethnic minorities together

minority cultural activities are often hindered In its place nationalistic values are given a

premium and integrated into society so as to tie the entire country in a unified Chinese foldlsquo

Resultantly an asymmetry with regards to the provision of services and protection of cultural

identity can be found in almost every ethnic minority region in the country The repression

against minorities has wider implications on the human rights situation for all This leads to

creation of a vindictive attitude among the minorities not only against the government but also

the Han majority

In July 2009 this attitude manifested itself in

the form of severe riots between the Han and

Uighur communities in Xinjianglsquos capital city

Urumqi Ethnic tensions elevated to the point

that police involvement was made necessary

According to Chinese state media at least 150

people were killed and more than 800 were

injured The riots were reportedly sparked by a

Uighur protest over the ethnically motivated

killing of two Uighur workers in the southern

province of Guangdong

On the topic of allegations of separatism it is interesting to note that post 911 it has been noted

that the Chinese government has used concerns about terrorism as a method for suppressing

ethnic activity This is possible through the characterization of certain ethnicities as having

fundamental leanings The Muslim Uighurs fell under fire for this very reason after the

September 2001 attacks

One of the ways that the Chinese government with its Han leanings has asserted its presence in

the region is through the smokescreen of the XPCC The Peoplelsquos Liberation Army and the

XPCC are present in the region per the government to ―consolidate border defense accelerate

79

wwwminorityrightsorgdownloadphpid=29 Page 30

UNHRC 22 of 44

Xinjianglsquos development and reduce the economic burden on local governments and the local

people of all ethnic groups80

The heavy militarization of ethnic minority

regions also enables the Chinese government

to quickly respond to skirmishes between the

minorities and the Han For example clashes

between the Uighurs and the Han in the

XUAR are quickly clamped down upon The

response by Chinese authorities always

focuses on the minority groups in the region

The typical response includes a period of

strike hardlsquo security measures during which the minorities are subjected to police patrols of

crowded areas identity checks street searches increased criminal investigations and accelerated

trials The measures also include mandatory political indoctrination classes for the Uighur

population Swift Chinese response to ethnic dissidence precludes the possibility of trying

protestersrioters under due process This phenomenon also contributes to the controversy of

China and its policy of arbitrary imprisonment

Essential to any countrylsquos social progress is the protection and provision of the basic rights to all

its citizens For a country like China which has a significant standing in the international

community the degree to which human rights are upheld comes under added scrutiny Minorities

need to be guaranteed provision of not only fundamental rights but additional ones that grant

them equal opportunities

Recent Developments

3 November 2010 UN Secretary General pushes China on human rights

Ban Ki-moon the United Nations secretary general has called on China to respect human rights

after critics accused him of dodging the issue on a trip to Beijing The UN secretary general met

Hu Jintao the Chinese president but failed to challenge Mr Hu on the imprisonment of Liu

Xiaobo the democracy activist who was awarded this years Nobel Peace prize and raise the

issue of human rights81

80

httpwwwchinaorgcne-white200305269htm 81

httpwwwtelegraphcouknewsworldnewsasiachina8107148UN-Secretary-General-pushes-China-on-human-

rightshtml

UNHRC 23 of 44

5 November 2011 Yeqing Ji from Shanghai China will most likely not be able to have children

after she said two forced abortions physically impaired her uterus82

8 September 2011 The Chinese government has renewed Googlelsquos license to allow it to

continue operating its local website in the country83

13 November 2011 Seven months ago

Chinese police detained the countrylsquos most prominent artist Ai Weiwei at the airport and drove

him to a hidden location It was the beginning of what is to be a two-and-a-half month nightmare

for the architect and sculptor who is also a former darling of the Communist Party who later

turned into an outspoken government critic Ai was held on vague charges of economic crimes

was kept in isolation and subjected to Kafka-esque interrogations84

April 19 2011 Amnesty International a 21-year-old monk Phuntsog set himself on fire in an

apparent anti-government protest in March 2011 Instead of putting out the flames Chinese

police beat the young monk creating huge resentment in the monastery85

At least 11 ethnic

Tibetans have been detained for protesting against the event and against government policies

They are at risk of torture and other ill-treatment86

29 May 2011 300 Tibetan monks detained in Kirti monastery by Chinese security forces87

15 September 2011 Chinese Uighurs economic fears

Amid ethnic tensions minority regards modernization plans in Xinjiang as favoring Han Chinese

migrants88

20 November 2011 Another of Chinalsquos minorities the Hui Muslims in Ningxia do not feel

stigmatized

―There is an important reason why Hui and Han Chinese get along with each other Unlike

Muslims of the other ethnic minorities like Uighur Kazakh Kyrgyz and Tajik the Hui Muslims

speak Mandarin just like the Hans89

82

httpabcnewsgocomBusinesswoman-china-forced-abortions-leaves-unable-

childrenstoryid=14880884Tsia7LIk6so 83

httpwwwbbccouknewsbusiness-14832392 84

httpwwwthedailybeastcomnewsweek20111113ai-weiwei-speaks-out-on-his-detentionhtml 85

httphradvorgaggregatorsources10 86

httpwwwamnestyorgenlibraryassetASA170212011end75f7611-be66-4d5a-9391-

c80c43501d56asa170212011enhtml 87

httphumanrightshouseorgArticles16503html 88

httpwwwaljazeeracomvideoasia20110920119158016969449html 89

httpwwwtodayszamancomnews-263322-chinas-hui-muslims-do-not-feel-stigmatizedhtml

UNHRC 24 of 44

Conclusion

The United Nations Human Rights Council at LUMUN 2012 will be looked upon to provide a

framework for the resolution of these issues in a universal context The scope of the issues

should be expanded and applied to countries other than China The committee will have to make

recommendations which have universal application and resolve all aspects of the issue

comprehensively For any queries related to the study guide please do contact either (or both)

the committee directors at the given addresses

UNHRC 25 of 44

Topic Area B Abolishing the Death Penalty

Introduction to the Topic Area

The death penalty is formally defined as the execution of an offender sentenced to death after

conviction by a court of law of a criminal offenselsquo90

The concept of a capital crime is subjective

and states have made use of this practice in response to multiple forms of crime The use of the

death penalty has produced much controversy with regard to its apparent violation of

fundamental human rights as delineated in the Universal Declaration of Human Rights and

subsequent human rights charters and treaties It is asserted that the use of death penalty is in

contravention to the peopleslsquo right to life promised to every individual under Article 3 of the

Declaration91

Moreover Article 2 of the Charter of Fundamental Rights of the European Union

lucidly bars the imposition of death penalty as a form of punishment92

Arguments against the

use of death penalty are also made on the grounds of inhumane methods which are employed to

see out the process Historically multiple methods have been used which include death by

hanging severing of the head lethal injection shooting and electrocution93

94

As a response states have made keen efforts to abolish

the death penalty particularly in the last two decades as

can be interpreted from the graph on the right which

represents the number of states that have abolished the

death penalty Countries belonging to the European

region with the exclusion of Russia and Belarus have

sought to revoke the use of the practice The death

penalty is most commonly seen to be a formal practice

in most of the developing countries The trend is

apparent in Latin America Africa and Asia

96 countries have formally abandoned the use of death penalty 58 countries allow the use95

Other states have abolished the penalty in practice but the laws remain in place for the

imposition of the penalty as a response to certain crimes The imposition of the death penalty has

90

httpwwwbritannicacomEBcheckedtopic93902capital-punishment 91

httpwwwunorgendocumentsudhr 92

httpwwweuroparleuropaeucharterpdftext_enpdf 93

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffle

re-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 94

httpwwwdeathpenaltyinfoorgmethods-execution 95

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf

Figure 1 (Drag to enlarge)

UNHRC 26 of 44

seen a decline over the recent years with a fall in the number of executions that take place

annually It would however be incorrect to assume that the practice is not prevalent or widely in

effect Amnesty International reported that at least 2024 new death sentences were imposed in 67

countries in 2010 Moreover there were at least 17833 people sentenced to death worldwide at

the end of 201096

Again these are minimum figures which are the safest that can be inferred

from the given research There were 527 known executions carried out in 2010 globally97

This

figure however does not include the number of executions that took place in China where

analysts believe that more than a thousand people were put to death in the past year

The statistics represent the number of people executed through capital punishment One way to

formally define capital punishment is to regard it as the state sanctioned killing of an individual

through a judicial process as a punishment for a crime (defined as a capital crime by the state)98

Capital punishment is the most obvious and prevalent manifestation of the death penalty It is

often perceived as a statelsquos right in order to preserve law and order against any individual who

engages in serious crimes that threaten other individuals or the state Those who advocate against

the use of capital punishment label it as a symptom of a culture of violence not a solution to

itlsquo99

The controversy surrounding the topic is based on the legal ethical and moral acceptability

of the statelsquos right to an individuallsquos life The debate entails several social and economic factors

some of which will be reviewed in closer detail in the relevant section of this guide

One of the most striking aspects related to the issue is the imposition of the capital punishment

on juveniles The sentencing of juveniles to death is in clear breach of international law The

morality and validity of such a practice is often called into question and has been put under

relentless scrutiny despite all of which the practice is still carried out in a number of countries

Historically the United States China and Iran have the worst records relating to juvenile death

sentences100

The study guide also includes a separate section for the case of juveniles in which

the legal and social aspects of the problems are detailed

As stated states have made use of the death penalty to punish crimes of varying natures The use

of the death penalty is reserved for only the most seriouslsquo crimes as put forth in international

law101

The notion of a capital crime however is a subjective one states that have doled out

death sentences have defined it differently In certain countries the death penalty is only used to

charge criminals accused of war crimes In other countries the penalty is reserved for crimes like

96

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf 97

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010 98

httpusersrcncommwooddeathpenhtml 99

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 100

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 101

httpwwwunorgdocumentsecosocdocs1995e1995-78htm

UNHRC 27 of 44

murder rape or even robbery States also use the death penalty against individuals who are guilty

of treason The issue however is that many states practicing the death penalty impose the

punishment even when the crimes do not meet the threshold for the aforementioned most

seriouslsquo crimes The ability of states to define what constitutes as a capital crime has led to states

abusing their powers as has been observed in the sentences ordained by military courts

Moreover even the radicals who make the argument of the punishment fitting the crime agree

that in many instances individuals have been executed for softlsquo crimes crimes that were

certainly not tantamount to charges of murder or crimes against humanity The issue of apparent

violations of human rights is further exacerbated in these instances The study guide will discuss

the universal crimes that have resulted in the awarding of the death penalty and examine the

issue further The committee will be expected to discuss the feasibility of drawing up an

international definition of crimes which in isolated instances perhaps may be appropriate for a

sentence like the death penalty

Another pertinent aspect surrounding the debate is that of extrajudicial killings The execution of

a person by state authorities without the authority of a judicial proceeding is termed as an

extrajudicial killing Many states have used extrajudicial killings to establish their authority and

order without having to wade through the legal process By doing so they have deprived scores

of people of their fundamental right to free and fair trials Governments have also employed this

tactic to exercise political aggression and to suppress dissent A particular point of concern is the

fact that some states have made use of these killings even when they have officially revoked the

imposition of the death penalty Extrajudicial killings are carried out persistently in many

countries ndash the list includes countries like Iran Iraq Israel Philippines102

Most recently the

killing of Anwar al-Awlaki and Samir Khan in Yemen by a sanctioned National Security Council

move by the USA was an example of states embarking on such paths to eliminate threats to

national securitylsquo103

102

Multiple citations for each country can be found in the second paragraph article titled Extrajudicial killinglsquo on

Wikipedia 103

httpwwwtelegraphcouknewsworldnewsbarackobama7564581Barack-Obama-orders-killing-of-US-cleric-

Anwar-al-Awlakihtml

UNHRC 28 of 44

Wrongful convictions lead many to believe in the inherent incapacity of the death penalty to

serve justice On September 21 2011 US citizen Troy Davis was executed in Georgia after

which seven of the nine witnesses who testified against him in the case that led to his execution

recounted or retracted their evidences A petition with nearly one million signatures was put

forth to reconsider his case it was rejected On the same day a 17 year old boy was publicly

hanged in Iran for killing a popular athlete his justification based on self-defense was ignored

Also on the same day a Pakistani national was executed in China on grounds of drug trafficking

an offence that does not often result in capital punishment The need for the resolution of this

issue is pressing and the committee needs to deal with all aspects of the problem in a

comprehensive and enduring manner104

Capital Punishment

In 2010 23 countries implemented capital punishment A total of 527 executions (plus the 1000+

carried out in China alone) were known to have taken place with Iran Yemen USA and North

Korea meting out a significant number of sentences105

The figure is lower than the records

computed for years past There are more states which are now abolitionist either in law or in

practice with regard to the imposition of the punishment Gabon was officially the last country

to rescind the practice while bills calling for an end to capital punishment have been presented

to parliaments in Lebanon Mali Mongolia and South Korea106

Renewed efforts are

104

httpwwwamnestyorgennews-and-updatesus-executes-death-row-prisoner-troy-davis-2011-09-21 105

httpwwwguardiancouknewsdatablog2011mar29death-penalty-countries-world 106

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010

UNHRC 29 of 44

simultaneously being made on the international front to implement laws against capital

punishment A third resolution establishing a moratorium on the use of death penalty passed the

UN General Assembly on December 21 2010107

Despite the increasing momentum towards an eventual elimination of the practice the number of

executions taking place annually is a cause of major concern Advocates of the death penalty

assert that the practice is an effective means of deterring crime in society Public executions are

often held in Iran Afghanistan and Palestine for example to demonstrate the fate awaiting

those who commit similar crimes108

Arguments are made on the grounds of justice that it is

proper and fair to take an eye for an eye and a life for a life and that some individuals deserve

it for the crimes they commit

Those opposing the practice question the morality of an action sanctioned by the state which

endorses deprivation of the right to life a fundamental human right under the Universal

Declaration of Human Rights109

There are inescapable flaws within legal systems which are

aggravated by discrimination prosecutorial misconduct and inadequate legal representation

Moreover the risk of executing the innocent can never be eliminated110

An alternative is

presented in the form of imprisonment for life without parole which results in a parallel debate

is imprisonment for life a viable surrogate to the practice of death penalty A thread from this

debate also relates to the economic feasibility of carrying out a death sentence as opposed to the

feasibility of imprisonment for life

Deterrence

Capital punishment is often propagated as an adequate approach in the deterrence and prevention

of crime The logic is that if murderers are sentenced to death potential murderers will think

twice before killing for fear of losing their own life The deterrence theory presumes that the

once the punishment for a certain crime is established the criminal by committing the crime

voluntarily assumes the risk of receiving the prescribed punishment for the crime Only when the

most severe punishment has been set will there be a possibility of an individual evaluating their

actions in light of the consequences111

107

httpwwwundemocracycomA-RES-62-149pdf 108

httpwwwamnestyorgennews-and-updatessharp-rise-public-executions-iran-executes-first-juvenile-

offenders-2011-2011-04-27 109

wwwunorgendocumentsudhr 110

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 111

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 30 of 44

The death penalty it is asserted ensures that convicted criminals do not offend again moreover

it is deemed to be a just penalty for atrocious crimes It is further alleged that many criminals

who are set free even after lengthy sentences regress and go on to commit heinous crimes

Therefore there should never be the possibility of a release clause112

The deterrence theory is modeled on the grounds of human psychology logic and rationale As a

professor of jurisprudence Ernest van den Haag PhD wrote ―Common sense lately bolstered

by statistics tells us that the death penalty will deter murder if anything can People fear nothing

more than death Therefore nothing will deter a criminal more than the fear of death These

statements were further validated by a US Supreme Court Justice who said on record that

Prima facie the penalty of death is likely to have a stronger effect as a deterrent to normal

human beings than any other form of punishmentlsquo113

Numerous studies have been conducted on

the subject with varying results One of the most established studies was conducted in USA

using a panel data set of over 3000 counties from 1977 to 1996 which concluded that on

average one death sentence resulted in 18 fewer murders114

Delegates will be expected to be

familiar with other similar studies

These studies are commonly refuted as not crediblelsquo by opponents of the capital punishment

who also deny the correlation between crime and death penalty as a fabricated relationship which

cannot be empirically established115116

A study of the relationship between capital punishment

and the incidence of murder was conducted for the UN in 1988 and updated in 2002 The

conclusion was ―The investigation has not provided scientific proof that executions have more

deterrent effect than life imprisonment It is unlikely that such evidence will ever come

Deterrence hypothesis finds no support in the survey117

Another counter-argument asserts that crime is still a persistent feature of the societies that

continue to award the death penalty while many of the abolitionist states enjoy low crime rates

This can be evidenced by comparing the crime rate in USA or Pakistan with that of Canada or

some European state In Canada for example the homicide rate per 100000 fell from a peak of

309 in 1975 the year before the abolition of the death penalty for murder to 241 in 1980 and

in 2003 27 years after abolition the homicide rate was 173 per 100000 44 per cent lower than

in 1975118

112

httpwwwdeathpenaltyinfoorgfacts-about-deterrence-and-death-penalty 113

httpdeathpenaltyproconorgviewresourcephpresourceID=002000 114

httpdeathpenaltyproconorgsourcefilesThe20Deterrent20Effect20of20Capital20Punishmentpdf ndash

Delegates should carefully examine certain parts of this document to establish the credibility of the assertions made

They should also invest in trying to locate studies that refute the assertions made in this and similar studies 115

httpwwwdeathpenaltyinfoorglaw-enforcement-views-deterrencelawenforcement 116

httpwwwdeathpenaltyinfoorgDonohueDeterpdf 117

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 118

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml

UNHRC 31 of 44

The lack of evidence on the production of a unique deterrent effect points to the danger of

relying on the deterrence hypothesis as a basis for public policy on the death penalty

Retribution amp Morality

An important terminology that delegates need to familiarize themselves with is that of

―retributivism119

It is defined as ―a policy of criminal justice that sponsors the punishment of

criminals in retribution for the harm they have inflicted120

Criminals deserve to be punished in

proportion to the gravity of their crime regardless of whether the victim or anyone else desires

it we may all deeply regret having to carry out the punishment but consider it warrantedlsquo is

what many say in defense of the theory121

The need for the establishment of a visibly just state arises from the potential risks of not having

one As has been visible in many developing countries with shaky legal systems when criminals

are not adequately punished for their unlawful behavior the public takes the law into its own

hands and deals out vigilante justice It is asserted that retributivism is essential for a functioning

society where individuals respect the supremacy of law

The concept of retribution in society is also grounded in religious beliefs The concept of an eye

for an eye has been a part of all three Abrahamic traditions However in the modern world it is

Islamic nations that still retain the practice based on these grounds Similar traditions can be

found in Hinduism Christianity and Buddhism as well as other religions in different parts of the

world In many non-secular countries the constitutions and state laws are derived from religious

doctrines

Opponents dismiss this aspect of the argument as being emotionally charged with little rational

logic to support the contention They claim that the establishment of capital punishment gives

birth to a culture of violence endorsed by the state It perpetuates the cycle of aggression and

brutality something which the state should be actively inhibiting not endorsing

Wrongful Convictions

The death penalty carries with it the danger of wrongfully convicting an innocent person for

crimes he did not commit There is the potential for capital punishment to evolve into sheer

miscarriage of justice as in certain circumstances states are often seen to rush the trials and

convict the accused hastily This practice takes foremost apparently in military courts often in

119

Cavadino M amp Dignan J (1997) The Penal System An Introduction (2nd ed) p 39 London Sage 120

httpdictionaryreferencecombrowseretributivism 121

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 32 of 44

the developing or lesser-developed countries where the system of law is not properly established

It is not however exclusive to these countries Examples can be drawn from countries like

Philippines Thailand Iran and Palestine to name just a few where executions are carried out at

alarming pace removing the possibility of reviews

On 15 August 2004 Atefah Rajabi Sahaaleh was hanged in a public square in the Iranian city of

Neka Her death sentence was imposed for adultery and crimes against chastity122123

Atefah

was executed a week after the trial was run Following the execution the Judge for the case was

arrested for investigation by the Intelligence Ministry The media reported that in addition to the

confession of his rape of Atefeh Judge Rezai who served as judge jury and executioner also

confessed to torturing her during interrogations to extract names of others she had relations with

No transcripts from court proceedings were recorded The State alleged that Atefah was 22 at the

time of her execution A witness later claimed The judge just looked at her body because of

the developed physique and declared her as 22124

ndash her birth certificate revealed she was born

in 1988 Furthermore Atefah did not have access to a proper defense where she could contest

charges leveled against her This is one example of many such cases of miscarriage of justice

Something that recurs in these cases is the failure of the police or prosecuting authorities to

prevent the use of unreliable witnesses the misuse of evidence or confessions and the provision

of inadequate defense representation The advent of DNA profiling and the use of it as positive

evidence in criminal cases has resulted in the exoneration of multiple death row inmates on

grounds of forensic evidence or lack thereof Since 1973 138 people have been released from

death row in the United States after it was proven that they were innocent125

In 2009 Paul

House was cleared of murder and exonerated in Tennessee USA after having served 22 years

on death row His innocence was proclaimed in light of substantial additional DNA testing and

further investigationlsquo 126

Amnesty International has noted examples of wrongful convictions from elsewhere as well

including Jamaica Japan China Nigeria and Tanzania127

Paul G Cassell a former law clerk to

the Chief Justice of USA stated the mistaken release of guilty murderers should be of far greater

concern than the speculative and heretofore nonexistent risk of the mistaken execution of an

innocent personlsquo highlighting the case made by those who advocate the death penalty even in

light of wrongful convictions128

122

httpwwwcosmolearningcomdocumentariesexecution-of-a-teenage-girl1 123

httpnewsbbccouk2hi5217424stm 124

httpnewsbbccouk2hi5217424stm 125

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 126

httparticlescnncom2009-05-13justicetennesseeexonerated_1_death-row-inmate-dna-evidence-house-

arrest_s=PMCRIME 127

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 128

httpdeathpenaltycurriculumorgstudentcaboutargumentstestimony3bhtm

UNHRC 33 of 44

Alternative to Death Penalty

All abolitionist states have reverted to the practice of sentencing criminals to life imprisonment

(some without parole) which is also termed as death by incarceration Widely regarded as a more

humane course of action life imprisonment is also alleged to be a more economical practice

While ensuring public safety by keeping criminals away from society this system also saves the

lives of innocent people who have been falsely or wrongfully convicted The setup inhibits and

curbs the cycle of violence while retaining the deterrence factor it is strongly asserted

Advocates for the death penalty are averse towards life imprisonment for a number of reasons

They cite the unreliability of the system as one of the flaws which impedes the possibility of

such a sentence being successful A certain James Moore serves as a valid example in this case

In 1962 James Moore raped and strangled 14-year-old Pamela Moss The victimlsquos parents opted

out of capital punishment for Moore and he was instead sentenced to life in prison without

parole Twenty years later a change in sentencing laws in 1982 renders James Moore eligible for

parole every two years129130

Kenneth McDuff is another example McDuff was convicted and sentenced to life imprisonment

Years later due to the issue of overcrowding in prisons McDuff was released following which

he killed eight more people McDufflsquos example is of an individual from a developed country

with an established legal system in place131

Overcrowding is a feature of prisons in developing

or lesser developed countries In many such states criminals have also been known to easily

break out from penitentiaries

The economic aspect of the debate is murky at best There is a lack of empirical data on the

subject which is why the arguments of both these sides cannot be settled beyond doubt

Advocates of capital punishment insist that the overall costs of the practice are far lesser than the

costs of housing an inmate for a lifetime132

They also suggest that the life imprisonment allows

criminals to conceive new habeas corpus petitions which on legal grounds cannot be rejected

automatically resulting in more trials

On the other hand substantial arguments are made which stress that the cost of legal proceedings

in capital cases is in truth more than that of other cases States and nations spend a significant

portion of the taxpayerlsquos money in meting out such punishments133

Delegates when addressing

this portion of the debate will need to be aware of the financial aspects of the issue as it forms

for many states an important part of whether capital punishment should be revoked or

not

129

httpwesleylowecomcphtmldeter 130

httpwwwnytimescomkeywordparole 131

httpwesleylowecomcphtmldeter 132

Ibid ndash view section titled Capital Punishment and its costslsquo 133

httpwwwamnestyusaorgour-workissuesdeath-penaltyus-death-penalty-factsdeath-penalty-cost

UNHRC 34 of 44

Imposition of Death Penalty on Juveniles

The prohibition on the death penalty for crimes committed by juvenile offendersmdashpersons under

age 18 at the time of the offensemdashis well established in international law specifically in the

Convention on the Rights of Child

ldquoNo child shall be subjected to torture or other cruel inhuman or degrading treatment or

punishment Neither capital punishment nor life imprisonment without possibility of release shall

be imposed for offences committed by persons below eighteen years of agerdquo134

- Article 37(a) Convention on the Rights of Child

ldquoSentence of death shall not be imposed for crimes committed by persons below eighteen years

of age and shall not be carried out on pregnant womenrdquo135

- Article 6(5) International Covenant on Civil and Political Rights

The treaties are a unanimously agreed set of non-negotiable standards and obligations By

acceding to the treaties and ratifying them governments commit to protecting and ensuring

childrens rights and to holding themselves accountable for this commitment before the

international community

Even though the practice of capital punishment on juveniles is relatively rare however in clear

contravention of international law nine countries have executed offenders who were juveniles at

the time of their crimes between 1990 and 2005136

These countries include the Peoples Republic

of China (PRC) the Democratic Republic of the Congo Iran Nigeria Pakistan Saudi Arabia

Sudan the United States and Yemen137

The USA has since moved to implement a ban on capital

punishment for juveniles However in most other countries of the preceding list the practice is

still enshrined in the judicial system Iranlsquos record in particular has been abominable over the last

decade It has carried out 39 executions of persons under the age of 18 since 2005 Presently

over a hundred individuals are placed on death row for crimes committed as juveniles The

executions of Mahmoud Asgari Ayaz Marhoni and Makwan Moloudzadeh became international

symbols of Irans child capital punishment and the judicial system that hands down such

134

httpwww2ohchrorgenglishlawcrchtm 135

httpwww2ohchrorgenglishlawccprhtm 136

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf - This document by the Human Rights Watch

called The Last Holdoutslsquo is a good summary of juvenile executions and should be reviewed 137

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 - Contains a list with

statistics and details of countries which have allowed the imposition of death sentence to juveniles

UNHRC 35 of 44

sentences138139140

Saudi Arabia and China too have questionable records that need to be

scrutinized further

While regional treaties and charters usually substantiate international law the Arab Human

Rights Charter of 2004 is unique among regional and international treaties in that the ban on the

juvenile death penalty in it is not absolute but merely optional141

Furthermore national laws in states that observe such a practice are in violation of

international legally-binding charters In Iran and Saudi Arabia laws usually treat a child the

same way as an adult criminal offender would be treated Article 10(3) of the International

Covenant on Civil and Political Rights emphasizes the need for demarcation between the

handling of children and that of adults in stating ―Juvenile offenders shall be segregated from

adults and be accorded treatment appropriate to their age and legal status142

The definition of a child in these Muslim states is unclear as adulthood is associated with

attainment of puberty which is a relative concept The Committee on the Rights of the Child in

January 2005 censured the Saudi government for its practice of imposing the death penalty on

juveniles terming it a serious violation of the fundamental rights The committee was deeply

alarmed over the discretionary power judges hold to treat juveniles as adults as was stated in

the committeelsquos report Iran too was strongly condemned following the release of an

international report highlighting the dire situation in Iran by the International for Human Rights 143

138

httpwwwfoxnewscomstory0293329798200html 139

httpnewsbbccouk2himiddle_east7130380stm 140

httpenwikipediaorgwikiCapital_punishmentIran 141

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 142

httpwww2ohchrorgenglishlawccprhtm 143

httpwwwfidhorgIMGpdfRapport_Iran_finalpdf

UNHRC 36 of 44

On August 19 2008 Iranian authorities executed Seyyed Reza Hejazi at Isfahan Central Prison

for his role in a murder committed in 2003 when he was 15 Hejazi was tried as an adult by

Branch 106 of the Isfahan General Court even if he did not qualify as one under international

stipulations and sentenced to death on November 14 2005144

In Saudi Arabia Mu`id bin

Husayn bin Abu al-Qasim bin `Ali Hakami was executed on July 10 2007 for a murder he

allegedly committed three years earlier when he was 13 years old145

The judges in these states

because of the implementation of the Sharialsquo law have a large amount of discretion with regard

to their rulings This discretion is often abused in the interrogation and judicial proceedings In

Pakistan authorities hanged Mutaber Khan in Peshawar Central Prison on June 13 2006 on

charges of murder of five people The fact that he was held in the juvenile wing of Peshawar

Central prison and the evidence presented by the accused confirming that his age was below 18

at the time of the killings were not taken into account during the trials and Mutaber was charged

as an adult in the case146

While the above does not cover exhaustively the practice of capitally punishing juveniles the

committee is expected to be well read on the matter The committee will be required to devise

ways to strictly apply the existing international law on the subject to curtail further deaths of

juveniles by states A series of recommendations on better implementation of international

covenants will be expected from the committee Delegates at UNHRC will also have to

familiarize themselves with the stipulations in the national laws of countries practicing juvenile

death penalties (Iran Saudi Arabia Pakistan Nigeria Sudan Yemen and UAE among others) to

discuss how these states are constitutionally able to bend international law and mete out the

illegal punishments

144

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 145

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 146

See FIDH and Human Rights Commission of Pakistan ―Slow march to the gallows and ―Condemned Prisoner

Executed Dawn Newspaper Karachi June 14 2005 httpwwwdawncom20060614nat16htm

UNHRC 37 of 44

Universality of Laws Incurring the Death Penalty

In countries which have not abolished the death penalty capital punishment may be imposed

only for the most serious crimes it being understood that their scope should not go beyond

intentional crimes with lethal or other extremely grave consequences

- Safeguards guaranteeing protection of the rights of those facing the death penalty147

Laws incurring the death penalty or capital crimes have certain uniformity the world over This

is of course barring states that are religiously affiliated and whose law systems are not secular

in nature The list of capital crimes for those states with non-secular legal systems is slightly

different The Human Rights Commission had decided that the imposition in the State party of

the death penalty for offences which cannot be characterized as the most serious including

apostasy committing a third homosexual act illicit sex embezzlement by officials and theft by

force are incompatible with Article 6 of the Covenant Economic offences including

embezzlement drug related offences political offences and robbery were also referred to148

The reason why looking into capital crimes and trying to garner a global impression of them is

important is that the death penalty can only realistically be abolished in a piecemeal way This

process will entail shortening the list of capital crimes The UN formally notes that ―in order

fully to guarantee the right to life provided for in article 3 of the Universal Declaration of

Human Rights the main objective to be pursued is that of progressively restricting the number of

offences for which capital punishment may be imposed with a view to the desirability of

abolishing this punishment in all countries149

The first established death penalty laws date as far back as the Eighteenth Century BC in the

Code of King Hammaurabi of Babylon which codified the death penalty for 25 different crimes

By the 1700s 222 crimes were punishable by death in Britain including stealing cutting down a

tree and robbing a rabbit warren In the 19th

century the death penalty was eliminated for over

100 of the 222 crimes punishable by death 150

In modern times the UN Special Rapporteur on

extrajudicial summary or arbitrary executions has stated that the death penalty should be

eliminated for economic crimes and drug-related offences and that the restrictions to its use

―exclude the possibility of death sentences for so-called victimless offences ndash including acts of

treason espionage and other vaguely defined acts usually described as crimes against the Statelsquo

or disloyaltylsquo and ―actions primarily related to prevailing moral values such as adultery and

prostitution as well as matters of sexual orientation151

147

httpwww2ohchrorgenglishlawpdfprotectionpdf 148

httpwwwunhchrchtbsdocnsf0bc310a747155dff88025655300537faeOpendocument 149

General Assembly resolution 2857 httpwwwunodcorgpdfcompendiumcompendium_2006_part_01_05pdf 150

httpdeathpenaltycurriculumorgstudentcabouthistoryhistoryPDF 151

httpswwwabofimedia24259report10pdf

UNHRC 38 of 44

Contrary to the made recommendations even political dissent warrants a death sentence in

several countries most notably in China and Iran In 2010 nearly 20 Kurdish people were

executed for political offences in Iran The country is known for keeping dissent especially from

the Kurds suppressed Most are executed on the grounds of moharebeh or enmity against God

Moreover challenging the power of the Ayatollah is also punishable by death These charges are

neither explicit nor in line with international guidelines over what crimes are punishable

capitally In Iran judges must handle such cases carefully as Iranian law provides for only one

punishment if an individual is found to be guilty of treason Libya too thwarts political dissent

with firm laws in place for punishing by death those who illegally form groups organizations or

associations against the state152

Saudi Arabia too is worth note for its vaguely phrased laws governing capital punishment

Intentional murder and crimes that spread ―mischief in the land (Fasad fil-ardh) merit death In

2010 the government announced that it had executed 26 people all by beheading Crimes that

―spread mischief include witchcraft and sorcery153

How is one convicted of witchcraft in the

21st century What can the international community do when regarding countries such as these

Treason arguably along with murder is the capital crime that has yet to be phased out by many

countries In some such as Brazil treason during warfare is the only crime for which a person

can be sentenced to death In the Gaza Strip under Hamas any sort of cooperation with Israeli

forces during military actions is also punishable by death In others including Algeria Bahrain

Iran and Malaysia treason is punishable by death in all circumstances The United States too has

federal laws governing treason under which traitors ―shall suffer death154

Child sex abuse is another crime that is widely held to merit the death penalty In Russia for

example according to the Russian Public Opinion Research Center an overwhelming majority

consider the death penalty to be an acceptable punishment especially in relation to molestation

155 In 2009 however Russias Constitutional Court effectively abolished the death penalty by

extending indefinitely a 13-year-old moratorium on capital punishment156

Indonesia has some of the strictest penalties for drug related crimes in the world Roughly half of

those on death row are incriminated with drug-related charges157

In 2008 though the most high

profile executions were of terrorists Three of those found responsible for the 2002 Bali

bombings were executed by shooting158

Generally speaking however a significant proportion of

152

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 153

httpwwwstategovgdrlrlshrrpt2010nea154472htm 154

httpdeathpenaltyproconorgviewresourcephpresourceID=1172 155

httpenrianrutrenddeath_penalty 156

httpwwwreuterscomarticle20091119idUSLJ330478 157

httpwwwnytimescom20080711worldasia11iht-indo114421132html 158

httpnewsbbccouk2hiasia-pacific7718246stm

UNHRC 39 of 44

the executions or death sentences recorded (in 2010) in China Egypt Indonesia Iran Laos

Libya Thailand United Arab Emirates and Yemen were for drug-related offences In December

2010 the amended Anti-Narcotics law came into force in Iran extending the scope of the death

penalty to include additional categories of illegal drugs (for example crystal meth) possession

of which became punishable by death Also around the same time the National Assembly of

Gambia voted to extend the scope of the death penalty by making the possession of more than

250g of heroin or cocaine an offence punishable by death159

Several states allow for the death penalty for crimes of blasphemy and other crimes for

nonviolent expression and association In Pakistan Aasia Bibi a Christian mother of five was

charged with blasphemy and sentenced to death after a trial largely believed to be unfair on 8

November 2010 She is currently on death row The country is also noted for its laws concerning

capital crimes The list includes 27 crimes most of which go beyond the notion of ―most serious

crimes as recommended by the International Covenant on Civil and Political Rights Extra-

marital sex and blasphemy are examples of some capital crimes in the country In December

2007 Pakistan voted against a United Nation General Assembly resolution for a moratorium on

the death penalty The year before however the nation amended its law on rape and adultery

charges which are no longer punishable by death160

As far back as 1989 recommendations have been made as to how to abolish the death penalty

Member states (of the UN) have been urged ―to publish for each category of offence for which

the death penalty is authorized and if possible on an annual basis information about the use of

the death penalty including the number of persons sentenced to death the number of executions

actually carried out the number of persons under sentence of death the number of death

sentences reversed or commuted on appeal and the number of instances in which clemency has

been granted and to include information on the extent to which the safeguards referred to above

are incorporated in national law161

The committee must inspect how far this recommendation

has been adopted and should seek to rectify the weaknesses in the system of gradually

abolishing the death penalty Can a target year be designated by which crimes meriting the death

penalty could be made universal How can countries with non-secular legal systems be brought

into the fold of international law

159

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 160

httpwwwfiacatorgenIMGpdfdppakistan-enpdf 161

httpgraduateinstitutechfacultyclaphamhrdocdocsecosocresolutiondeathpen1989html

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 6: UNHRCFINAL

UNHRC 2 of 44

that time Kofi Annan referred to it as a historic resolution that gives the United Nations a

much needed chance to make a new beginning in its work for human rights around the world

The main aim of the Council is to report to the General Assembly and work with it to improve

the situation of global human rights As a specialized body it focuses solely on human rights and

managing the protection and advancement of the human rights of all individuals It aims to

promote universal respect for the protection of all human rights and fundamental freedoms as

demarcated in the International Bill of Rights and the UN Charter for all without distinction of

any kind and in a fair and equal manner Recommendations are made on all documented human

rights violations including gross and systematic violations

The Council can only make recommendations on violations of human rights to the GA which in

turn can suspend the voting rights of the accused Council member The Council also makes

recommendations to the GA for further development of international law in the field of human

rights

The Council comprises of 47 members elected on a geographic quota-based criterion for three-

year-long terms Members elected into the Council by the General Assembly must ―uphold the

highest standards in the promotion and protection of human rights fully cooperate with the

Council and be reviewed under the universal period review mechanism during their term 2

A year after its inception the Human Rights Council designed Resolution 51 in order to provide

mechanisms through which human rights situations could be monitored3 The Resolution

included the Universal Periodic Review (UPR) system4 Through this human rights situations in

individual UN member states are reviewed and subsequently discussed by the entire Council

sitting as a working group through an interactive dialogue with the concerned State The Review

system incentivizes states to independently reform and review domestic human rights situations

prior to international inspection which facilitates the fulfillment of the aim of the Council

Human rights situations are meant to be reviewed on a rotational basis for all 192 UN member

states

2 httpwww2ohchrorgenglishbodieshrcouncildocspledgespdf

3 Resolution 51 httpapohchrorgdocumentsEHRCresolutionsA_HRC_RES_5_1doc

4 Please see the following for information on the UPR of China

httpwwwohchrorgENHRBodiesUPRPagesCNSession4aspx

UNHRC 3 of 44

Conference underway at the UNHRC in Geneva

The Resolution also included the delineation of Special Procedureslsquo established by the former

Commission on Human Rights to comprise of five-member working groups or individual

experts (commonly referred to as Special Rapporteurs) to monitor human rights violations in

thematic or country-specific loci There are currently five Working Groups on people of African

descent on Arbitrary Detention on Enforced or Involuntary Disappearances on the Use of

Mercenaries to Impede the Right of Peoples to Self-Determination and on Situations

(Confidential 1503 Procedure)5

The mandates of the Special Procedures are established and defined by the resolution creating

them Some of the thematic mandates adopted by the Council include the issue of human rights

defenders torture and minorities Special Rapporteurs often conduct fact-finding missions

in countries to investigate allegations of human rights violations They can only visit

countries that have agreed to invite them

The Council is currently headed by Laura Dupuy Lasserre of Uruguay It concluded its

eighteenth session in September 2011 The diversity of the political and social issues

encompassed in the agenda resulted in discussion of issues as varied as the situation in Libya on

one end and water sanitation on the other Also discussed was the situation of human rights in

Syria and the pattern of widespread systematic human rights violations by Syrian security and

military forces was examined The illegal blockade imposed on Gaza was also under focus

Furthermore the Council adopted the outcomes resulting from debate over the Universal

Periodic Review of sixteen countries

5 httpwww2ohchrorgenglishbodieschrworkinggroupshtm

UNHRC 4 of 44

While the Council faces criticism along the lines of that made against the Commission it has

come a long way from being the ―shadow on the ―reputation of the UN system as whole 6

6 httpnewsbbccouk2hiamericas6919268stm

UNHRC 5 of 44

Topic Area A The Great Firewall of China Review of the Human Rights Situation

Introduction to the Topic Area

The Peoplelsquos Republic of China is the worldlsquos most populous country with an estimated

population of 137 billion It is also one of the largest countries in terms of its land territory

China has firmly established itself as a premier world economic powerhouse It is the worlds

second-largest economy after the United States by both nominal GDP ($593 trillion) and

purchasing power parity ($1012 trillion) A single-party state governed by the Communist Party

of China it is widely acknowledged to be the worlds fastest-growing major economy and the

worlds largest exporter and second-largest importer of goods China is also a permanent member

of the UNSC and is a prominent figure in international politics It is a recognized nuclear

weapons state and has the worlds largest standing army with the second-largest defense budget

China is on par with the United States as a superpower and is soon even expected to supersede

the latter as the worldlsquos major politico-economic power

However Chinalsquos record in relation to human rights violations stands out for all the wrong

reasons China has been ruled by the Communist Party since it gained power and established the

Peoplelsquos Republic of China in 1949 It is believed to be in breach of numerous human rights and

its transgressions are a subject of much concern for the entire international community Some

issues like the Tiananmen Square of 1989 or that of Mr Liu Xiaobolsquos imprisonment have seen

the light of day and escaped the iron clutches of Chinese control on media However thousands

of other cases are never brought out into the open and are unable to draw international attention

which is why this year at LUMUNlsquos United Nations Human Rights Council the debate will focus

on China and its human rights violations The human rights abuses in focus will be Chinalsquos

violation of reproductive rights the case of internet censorship in China and the right to free

speech political prisoners in China and illegal detention the infringement of rights in the

conflict with Tibet and ethnic minority rights

The committee will not only be expected to discuss all aspects of the issues distinctly and in

extensive detail The committee will also be expected to be familiar with the Universal

Declaration of Human Rights all pertinent treaties resolutions and conventions

UNHRC 6 of 44

Chinarsquos Violation of Reproductive Rights

While reproductive rights are not specifically mentioned in the Universal Declaration of Human

Rights they are widely understood to be an extension of the freedom of choice and right to life

They are to be granted equally to all humans without discrimination of race sex language or

religion under the United Nations Charter7 Reproductive rights embrace certain human rights

that are already recognized in national laws international human rights documents and other

relevant UN consensus documents The World Health Organization defines reproductive rights

in the following manner

ldquoReproductive rights rest on the recognition of the basic right of all couples and individuals to

decide freely and responsibly the number spacing and timing of their children and to have the

information and means to do so and the right to attain the highest standard of sexual and

reproductive health They also include the right of all to make decisions concerning reproduction

free of discrimination coercion and violence8rdquo

Only if individuals have the freedom to be in control of their sexual and reproductive lives can

uninhibited social development occur However the lack of any binding international covenant

on the subject is a grave state of affairs Soft laws in the form of non-binding measures are

often deemed too inadequate in mounting a challenge against the issue The United Nations

Human Rights Council has the capacity to make recommendations for the revision of the

aforementioned fact and will be something that the committee should focus on

Reproductive rights include in their spectrum the right to legal or safe abortion the right to

access quality reproductive healthcare the right to birth control and the right to education in

order to make well-informed reproductive choices without any coercion or violence9 Equality

and equity for men and women is of paramount importance while addressing such civil liberties

so that individuals are able to make free and informed choices in all spheres of life without any

discrimination of any kind An essential aspect of the debate is related to the right to privacy that

all individuals must be granted in the process of their decision-making

The provision of such personal human rights is notably absent in China With the stern

implementation of the one-childlsquo policy10

China has undertaken extreme measures at the cost

of innumerable human rights to curtail population growth Despite having previously ratified the

7 Article 1 of the UN Charter httpwwwunorgendocumentscharterchapter1shtml

8 Gender and reproductive rights home page httpwwwwhointreproductivehealthen

9Amnesty International USA

httpwwwamnestyusaorgStop_Violence_Against_Women_SVAWReproductive_Rightspagedoid=1108242ampn

1=3ampn2=39ampn3=1101 10

Article 18 of Population and Family Planning Law of Peoplelsquos Republic of China

httpwwwunescaporgesidpsispopulationdatabasepoplawslaw_chinachina20pop20and20family20plan

ningpdf

UNHRC 7 of 44

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in

198011

which prohibits coercion in family planning policies12

China continues to dictate the

reproductive lives of all its citizens While the Law on Population and Family Planning states

that one child is mostly merely encouraged abusive or coercive enforcement measures such as

forced abortions compulsory sterilizations and the forced insertion of intra-uterine devices after

abortions or births are common practices that are regularly documented13

Forced sterilizations are a troublingly common practice in other regions as well Perulsquos case is

important in this regard with its program of achieving a target number of sterilizations each

year sometimes numbering in the hundreds of thousands Indeed the government would

sometimes bribe women to undergo these procedures in exchange for food and medicine for

their existing children 14

A system of enhanced monitoring strategies is often regarded as one of

the solutions to the problem

Another pervasive measure employed by the state is the routine monitoring of the menstrual

cycle of women particularly those in the child-bearing age by family planning officials15

Their

employment is often contingent upon compliance with the policy The right to privacy is

severely breached in all such instances Furthermore unmarried women are not allowed to have

children and even married couples must apply for a birth permit before they can legally bear

children16

Analyzing the statelsquos penetrating involvement and interference in the private spheres

of individuals in light of existing treaties and conventions will be one of the committeelsquos tasks

Women and couples who defy the policy face fines amounting to several yearslsquo salary have their

access to social services cut and are even imprisoned in certain cases Their so-called black

childrenlsquo have no legal status in China meaning these children are not granted any rights

whatsoever and do not have access to education health or any other services provided by the

State There are an estimated 6 million undocumented children in China most of which are

believed to be girls17

The cases of Mao Hengfeng and Chen Guangchengserve as prime examples demonstrating the

inhumane nature of penalties handed out by the Chinese state to violators of the one-child

policy18

Mao a human rights activist was sentenced to two and a half years in prison after she

refused to have an abortion Chen was a blind self-taught lawyer and activist who was charged

and punished with more than four years in prison after exposing abuses in the implementation of

the one-child policy

11

httpunifem-eseasiaorgChina 12

httptreatiesunorgPagesViewDetailsaspxsrc=TREATYampmtdsg_no=IV-8ampchapter=4amplang=en 13

httpwwwrhrealitycheckorgnode7926 14

httpwwwwebsteredu~woolflmforcedsterilizationhtml 15

Page 2 httpwwwcensusgovpopulationinternationalfilesspSP73pdf 16

httpfactsanddetailscomchinaphpitemid=128ampcatid=4ampsubcatid=15 17

Ibid 18

httpwwwrhrealitycheckorgnode7926

UNHRC 8 of 44

The appalling state of affairs is further augmented by the actions the Chinese state takes to

impede the birth of conceived children It implements very strictly a program of compulsory

sterilization and forced abortions to minimize the birth of a second child in a family While

abortion itself may be a debatable and controversial topic the subset of such a controversy in the

form of a state-regulated forced abortion is excruciatingly black and white The undeniable

cruelty of forced abortions is not a deterrent strong enough for the Chinese government and the

phenomenon exists widely in China In fact the policy leads to an estimated 13 million abortions

every year with many of those ordered by local authorities Infanticide is a common practice

especially in the rural areas of the country19

Women are abducted by the state and at the cost of

their lives are forced to undergo forced and mostly unsafe abortions

In October of 2010 China forced an eight-month pregnant woman into an abortion for breaching

the one-child policy20

Government officials entered Xiao Aiyinglsquos residence hit and kicked her

in the stomach and subsequently dragged her to the hospital where doctors injected her with a

lethal drug to kill her unborn baby Xiaolsquos husband later described the incident They held her

hands behind her back and pushed her head against the wall and kicked her in the stomachlsquo The

animalistic discourse adopted by the government officials is a testimony to Chinalsquos open rebuke

for human rights More recently Womenlsquos Rights without Frontierslsquo and China Aidlsquo reported

the death of a six-month pregnant woman during a forced abortion on October 12th

201121

Jihong Ma was seized by Family Planning Officials for a forced abortion having violated the

one-child policy

While the positive environmental impact of the prevention of 300 to 400 million births may be

cited22

it must be noted the one-child policy privileges only the wealthy who can afford the

fines for additional births and have better access to contraceptives and health care while

punishing the poor who are financially crippled by the fines incurred for additional births

Moreover this policy punishes the children of the poor because they are more likely to be kept

hidden from the state and thus will not have access to health care and the education they need to

climb out of poverty In this way social disparity is further perpetuated within the existing

framework

Another adverse byproduct of Chinas 30-year-old family planning policy is the gender

imbalance that is now manifested most clearly among those of marrying age The British

Medical Journal claimed that in 2005 there were 32 million more males than females (under the

age of 20) in China23

Even though China banned prenatal sex screening in 199424

illegal

ultrasound tests allow prospective parents to choose the gender they prefer for their only child

19

httpwwwdailymailcouknewsarticle-1322601China-forces-woman-abortion-EIGHT-months-breaching-

child-policyhtml 20

Ibid 21

httpwwwwomensrightswithoutfrontiersorgblogp=429 22

―Has Chinas one-child policy worked httpnewsbbccouk2hiasia-pacific7000931stm 23

British Medical Journal BMJ 2009 338b1211 httpwwwbmjcomcontent338bmjb1211full 24

―A Brief History of Chinas One-Child Policy httpwwwtimecomtimeworldarticle08599191286100html

UNHRC 9 of 44

creating a massive imbalance This imbalance will lead to drastic results in the next few years an

implication the committee needs to take in account when establishing a framework for

responding to the issue

The Human Rights Council conducted a Universal Periodic Review of China in 200925

to much

international consternation and surprise the report lacked substantial evidence implicating

China and was instead found to be extremely vague The role of the United Nations in defining

and drawing attention to the issue is of key significance and the Human Rights Council must

make recommendations on how the United Nations can enhance its capacity in laying the

foundations for the case The Council can also make recommendations regarding the changes

that can be brought about in the conduct of the Review and otherwise in order to be able to

contain the issue with lesser difficulty

The committee will be called upon to review reproductive rights in detail including the implicit

and explicit consequences on the people of China Access to reproductive healthcare is a

problem the world over and is often consciously violated by states Is there a way to control

these violations perhaps through devising enhanced monitoring strategies

The Case of Internet Censorship in China and the Right to Free Speech

Everyone has the right to freedom of opinion and expression this right includes freedom to hold

opinions without interference and to seek receive and impart information and ideas through any

media and regardless of frontiers26

- Article 19 Universal Declaration of Human Rights

Everyone shall have the right to freedom of expression this right shall include freedom to seek

receive and impart information and ideas of all kinds regardless of frontiers either orally in

writing or in print in the form of art or through any other media of his choice 27

- Article 19 (2) International Covenant on Civil and

Political Rights

The Peoplelsquos Republic of China along with being the most populous region of the world is also

home to the worldlsquos largest collection of internet users According to Xinhua Chinalsquos state-run

English news agency Chinalsquos internet user ship exceeded 500 million users as of September

201128

China is also the worldlsquos largest media market However despite these impressive

statistics it is both interesting and disturbing to note that the Republic is also remarkable for its

25

httplibohchrorgHRBodiesUPRDocumentsSession4CNA_HRC_WG6_4_CHN_3_Epdf 26

httpwwwohchrorgENUDHRDocumentsUDHR_Translationsengpdf The Universal Declaration of Human

Rights 27

httpwww2ohchrorgenglishlawpdfccprpdf The International Covenant on Civil and Political Rights 28

httpnewsxinhuanetcomenglish2010china2011-0929c_131167919htm

UNHRC 10 of 44

censorship history About a dozen government bodies control internet usage including the

Ministry of Public Security29

It has been noted that while the Chinese advertising industry is

booming this freedom does not extend to editorial content of newspapers30

This phenomenon of

Chinese censorship has been labeled in the mainstream global media as the Great Firewall of

China The Firewall serves to filter both the information coming into China as well as

information generated within the nation It is beyond being a clever pun a matter of concern for

the committee because of its repressive characteristic The State imposes such extreme

restrictions of freedom of information under the premise of protection of its nationalistic

interests However its negative connotation is much obvious and its resemblance to Orwelllsquos

Ministry of Truth and the notion of thought control is uncanny The Peoplelsquos Republic has signed

(not ratified) the International Covenant on Civil and Political Rights The committee can look

into the reasons behind this as well as assess current global membership to the covenant

Chinalsquos Internet censorship is centered on the control of political thought The Measures on the

Administration of Internet Information Services and the Provisions on the Administration of

Internet News and Information Services are the two main instruments used to do so31

Section 19

of the latter deserves special attention and casts its scope to prohibit activities that disrupt

―national policies on religion propagating evil cults and feudal superstitions jeopardize ―the

security of the nation harm ―integrity of the nationlsquos unity or ―the honor or the interests of the

nation among other things32

Regulations are so stringent that in 2008 only eight websites out

of a total of 430000 in Guangdong Province ndash Chinalsquos most populous region -- were able to

obtain news publication qualifications permits33

The Internet news and information services entities engaging in Internet news and information

services shall abide by the Constitution laws and regulations by persisting in providing service

for the people and serving socialism and guiding public opinion to protect the interests of the

nation and the public

- Article 3 Provisions on the Administration of Internet News and Information Services

The national report submitted by China to the Working Group for the Universal Periodic Review

in 2009 exhibited the governmentlsquos opinion that ―with such easy fast and diverse ways of

gaining access to information and expressing opinion including criticism of the Government

Chinese citizens are enjoying an entirely new lifestyle34

According to a white paper published

29

httpwwwhrworgreports2006china08063htm_ftnref28 30

httpnewsbbccouk2hiafricacountry_profiles1287798stm 31

httpwwwhrichinaorgcrfarticle3244 32

httpwwwchinaitlaworgp1=printampp2=051006175116 Provisions on the Administration of Internet News and

Information Services

Please peruse the following httpwwwhrworgreports2006china08063htm for commentary on the Provisions 33

Ibid 34

httplibohchrorgHRBodiesUPRDocumentsSession4CNA_HRC_WG6_4_CHN_1_Epdf

UNHRC 11 of 44

in 2008 by the Information Office of the State Council the internet is a ―crystallization of human

wisdom and ―Chinese citizens fully enjoy freedom of speech on the internet 35

Chinalsquos policies have relevance beyond

their contravention of what may seem to be

abstract principles China has jailed the

largest number of internet dissidents the

world over The case of Liu Shaokun for

example is a notable one He was a

teacher in Sichuan province which had

been hit in 2008 by a ravaging earthquake

around the time of the Summer Olympics

in Beijing China had been praised for

allowing reporters to openly cover the

earthquake Much of this openness however was part of a bid to soothe the international

community and project Beijinglsquos image as being the perfect venue for the Olympics Shaokun

however was sentenced to a year of labor for posting photographs of schools affected by the

earthquake He is among countless others who have been silenced36

When the Arab Spring flowered over the Middle East China cracked down on many social

networking sites to curb pro-democracy sentiments Amongst these was LinkedIn blocked over

the fact that one of its users had mentioned the possibility of a ―Jasmine Revolution in China37

The government blocks discussions about the Dalai Lama the Tiananmen Square protests and

the Falun Gong spiritual movement among other things In April of 2007 the Chinese version of

MySpace launched but lacked discussion forums centered on the aforementioned topics among

others including Taiwanlsquos independence In 2010 Google considered withdrawing its services

from China after a spur of cyber-attacks on email accounts of human rights activists 38

Google

and the government reached a deal whereby Google operated by Chinese guidelines within

mainland China However Google has a non-censored operation running in Hong Kong to

which it started routing customers in 2010 when it had concerns over Google accounts being

hacked by authorities It is testament to Chinese control that companies such as Google are

forced to enter the internet market on its terms Other instances of well renowned internet

websites being blocked or affronted include Twitter being banned during the 20th

anniversary of

the Tiananmen killings

The Committee to Protect Journalists ranks China as one of the worst internet censors The

Chinese government has been alleged of carrying out ―spear-phishing whereby spying software

disguised as legitimate emails is installed on computers that belong invariably to journalists

35

httpchinaorgcngovernmentwhitepapernode_7093508htm 36

httpcpjorgreports201012cpj-journalist-prison-census-iran-china-highest-14-yearsphp 37

httpwwwbbccouknewstechnology-12586462 38

httpnewsbbccouk2hi8460129stm Please look at this link for a timeline of Chinalsquos internet history

UNHRC 12 of 44

Victims included those writing about Liu Xiaobo the imprisoned human rights defender who

received the Nobel Peace Prize in 201039

According to statistics over 80 of Chinas netizens rely mainly on the Internet for news 40

With this state of affairs and increasing dependence the world over on the internet as a major

source of information discussing information monopolies is crucial To isolate a country of over

a billion and deny it access to information in the age of technology may not seem a palpable

physical or otherwise contravention of human rights however its consequences are

tremendous While one may think that media censorship is restricted to dictatorial regimes the

case of China serves to refute that line of thought Media censorship is prevalent even in

countries as varied as Indonesia India Mexico and Russia ndash all of whom rank relatively low on

the Press Freedom Index41

Looking at instances worldwide and the justifications given for

restricting rights will be a useful direction to take while researching

The following website is a useful tool to check the status of websites in China

httpwwwgreatfirewallofchinaorg

Political Prisoners in China and Illegal Detention

Political prisoners are those whose imprisonment is carried out arbitrarily on contestable and

controversial grounds Governments detain certain individuals on the basis of allegedly valid

grounds which are not always disclosed or declared Many detainees charge existence of ulterior

motives or extrajudicial reasons on part of the state for their detention The phenomenon of

political prisoners is often associated with closed regimes such as Burma and the DPRK

However the Peoplelsquos Republic of China too does not escape scrutiny when the topic of political

prisoners is at hand The phenomenon of political prisoners resonates so loudly in the

international spheres particularly because governments deny the existence of political prisoners

they claim that all detainees are lawfully held under criminal law The unfair detainment of

persons or the capture of people to serve the interests of a government contravenes many human

rights including freedom of expression association and assembly Indeed a countrylsquos political

imprisonment record is one of the crucial indicators of its human rights situation

Amnesty International views political prisoners as prisoners of conscience These are more

specifically ―people who have been jailed because of their political religious or other

conscientiously-held beliefs ethnic origin sex color language national or social origin

economic status birth sexual orientation or other status42

39

httpwwwcpjorgreports201105the-10-tools-of-online-oppressorsphp 40

httpchinaorgcngovernmentwhitepapernode_7093508htm 41

httpenrsforgpress-freedom-index-20101034html 42

httpwwwamnestyusaorgour-workissuesprisoners-and-people-at-riskprisoners-of-conscience

UNHRC 13 of 44

According to the (US) Congressional Executive Commission on China over 5000 cases of

politically or religiously motivated imprisonments have been made It has detailed documented

information on the status of 1452 of these prisoners and

notes that its information is far from complete and that the

true story of Chinalsquos political prisoners remains unknown 43

The plight of political prisoners in China is speculated upon

by various international organizations Among these is the

Human Rights Watch which has gone as far as labeling the

locations for holding political prisoners ―black jails and

―alleyways in hell Officially though the Chinese

government denies the existence of political prisoners Subsequent to Chinalsquos Universal Periodic

Review an outcome report was published which came under fire from various sides The Human

Rights Watch called the substance of the report to be ―manifestly so far removed from reality

that [it] would immediately discredit anybody that adopted them in a report 44

In the report of

the UNHRC Working Group subsequent to Chinalsquos UPR it is stated that the Chinese

government does not use ―state secrets to suppress human rights defenders 45

It is precisely this

situation that our simulation wishes to remedy discussion should be fact based

The ground realities are different In 2010 Chinese activist and human rights defender Mr Liu

Xiaobo was awarded the Nobel Peace Prize He was jailed by Chinese authorities for

distributing his ―Charter 08 a document that called for freedom of expression and of assembly

among other things The government incarcerated him for an 11 year time-period on the charge

of subversion Subsequent to the prize the Chinese government came down hard on other human

rights activists Indeed those celebrating the awarding of the prize to Mr Xiaobo were arrested

arbitrarily While distributing fliers celebrating the win many were imprisoned on the grounds of

―inciting subversion of state power The Report of the Special Rapporteur on the situation of

human rights defenders published in 2011 makes mention of these facts46

The Chinese

government labeled the award an ―obscenity It is vague allegations such as these that allow

governments to thwart dissidents As expected though according to the report of the HRC

Working Group No individual or press has been penalized for voicing their opinions or

views47

When discussing China and political prisoners it is important to mention the Falun Gong

movement It is a spiritual variant of Buddhism and originated in China on the basis of the

teachings of its founder Li Hongzhi The movement was supported within the Chinese

43

httpwwwceccgovpagesvictims20101010_PPD_AR10pdfPHPSESSID=705596c0e91f35e392e6f0ecbb78d6

7c 44

httpwwwhrworgennews20090610human-rights-watch-statement-upr-outcome-report-china 45

httpdaccess-dds-nyunorgdocUNDOCGENG0916299PDFG0916299pdfOpenElement 46

httpwww2ohchrorgenglishissuesdefendersdocsAHRC1644Add1_EFSonlypdf Page 63 47

httpdaccess-dds-nyunorgdocUNDOCGENG0916299PDFG0916299pdfOpenElement Para 71

UNHRC 14 of 44

officialdom initially However Falun Gonglsquos popularity within the masses as well as its

independence from the state and its spiritual teachings was soon perceived as a threat to the

government By the late 1990lsquos the Chinese government cracked down on the movement and

labeled it as a heretical organization Chinese legislation uses the expression ―Xiejiao zuzhi to

refer to a wide range of sectarian or unorthodox religious groups which do not meet official

approval The Falun Gong movement is included in this list48

The Falun Gong followers are the

worldlsquos largest group of prisoners of conscience The PRC often picks up practitioners and

accuses them of ―using an evil cult to destroy implementation of the law 49

China with its strict non-religious government did not take kindly to this new movement that

had garnered millions of followers both within China and internationally between 1992 and the

crackdown in 1999 Today Falun Gong is practiced freely in more than 70 countries around the

world with clubs and associations existing in a range of settings50

Beginning at the turn of the

millennium the authorities started to ban access to websites that contained material about the

movement Indeed a search on the movement on Chinalsquos Xinhua News Agency website will

even today yield nothing (It may be an interesting experiment for delegates to conduct) Those

who reported the initial crackdown were ―followed detained interrogated and threatened

according to a letter written in 1999 by The Foreign Correspondents Club (FCC) of China51

The Falun Gong movementlsquos official website deals with its persecution thus The complex

rationale behind the persecution can be broken into four elements a paranoid dictators fear of

Falun Gongs meteoric growth and soaring popularity that same dictators intense jealousy of

Falun Dafas popularity the inherent conflict between the communist regimes savage political

ideology and its polar oppositemdashFalun Dafas principles of Truthfulness Benevolence

Forbearance and the very nature of communism which to sustain itself requires periodically

labeling a small segment of the population as the class enemy to struggle against52

The Chinese crackdown on Falun Gong practitioners involved a ban on practicing it by the

Chinese Communist Party whose members as aforementioned were interestingly initially

adherents to the movement in significant numbers Indeed the party was divided from within

over their stance on the movement The government formulated an ―anti-cult law a few months

after issuing a warrant for the founderlsquos arrest ―During the first two years of the crackdown

between 150 and 450 group leaders and other members were tried for various crimes and

sentenced to prison terms of up to 18-20 years53

To this day ―central leaders turn a blind eye to

48

httpwwwamnestyorgenlibraryassetASA170112000en7a361a8e-df70-11dd-acaa-

7d9091d4638fasa170112000enhtml 49

httpwww2ohchrorgenglishissuesdefendersdocsAHRC1644Add1_EFSonlypdf 50

httpwwwfaluninfonettopic22 51

httpwwwamnestyorgenlibraryassetASA170112000en7a361a8e-df70-11dd-acaa-

7d9091d4638fasa170112000enhtml 52

httpwwwfalundafaorgengfaqshtmlpersecution 53

httpfpcstategovdocumentsorganization67820pdf Page 4

UNHRC 15 of 44

local methods of suppression against unrepentant practitioners including the reported use of

torture54

Also worth noting is the fact that Chinalsquos judicial system has been alleged to be anything but

conducive to providing justice to those using the system Indeed it is a repressive tool used by

the government to silence dissent China with its vast land mass and various provinces and

municipalities must work hard to keep its Centre strong Scores of individuals who are more

obscure than human rights activists and such are imprisoned by the government while ironically

seeking justice It has long been the custom for people of the countryside to seek justice in

Beijing if they felt that their local authorities had treated them unfairly However modern China

has not taken kindly to this tradition Local authorities are evaluated on the basis of the number

of complaints the Centre receives about them Thus they have a vested interest in thwarting the

reports of any complaints about them to Beijing Those who complain are whisked off to black

jails where ―detainees are denied access to legal counsel and in most cases contact with family

and friends They ―are kept under constant surveillance and subject to often arbitrary physical

and psychological abuse55

Chinalsquos record with regard to political prisoners and its tradition of suppressing dissent are

exacerbated by the sheer scale on which dissent is thwarted The aspect of potential torture of

prisoners further complicates the issue It is troubling that the issue of Chinese political prisoners

only gained international prominence with the case of Mr Liu Xiaobo It is not the only nation in

the world to adopt such strict policies in order to further its own ideology and the committee will

do well to ruminate upon how this tradition can be discontinued so as to allow people their

essential political freedoms

The Infringement of Rights in the Conflict with Tibet

Despite the furor that has been inconsistently directed towards its human rights record China

continues to impose tightening restrictions on rights of expression association and assembly

The Chinese government carries on devising social and economic changes that retain its firm

authority over its citizens which in turn enables a host of human rights violations In the context

of Tibet China has failed to address the grievances of the people there who have been made

victims of social discrimination and have unequal access to opportunities Scores of Tibetans are

marginalized and detained for their religious inclinations which are further suppressed by the

imposition of intense patriotic educationlsquo campaigns whereby socialism is furthered and all sorts

of religious or individualistic tendencies are thwarted

54

Ibid Page 5 55

httpwwwhrworgreports20091112alleyway-hell-0 Page 4

UNHRC 16 of 44

Despite its totalitarian approach China refuses to accept responsibility for the issue Instead it

blames westernlsquo forces for trying to instigate separatism56

The indifference on the part of

China with particular regard to Tibet is apparent with Chinese authoritieslsquo continuous rejection

of ―inconvenient requests by UN human rights experts for visits to the Tibet Autonomous

Region57

During 1912 and 1951 Tibet underwent a period of de facto independence58

While it was still

territorially a part of China it enjoyed relative freedom in its political discourse Tibetan

autonomy was confined within the context of Chinese suzerainty and should not be interpreted

as unrestrained political independence Since 1951 however the Chinese government has taken

steps to ensure its absolute and undeniable dominance over Tibet from which emanates the strife

under discussion Gross violations of human rights have taken place in China administered by

officials with the purpose of cultivating consent with regard to its control over the region

Suppression has led to the inevitable extensive discontent in Tibet a fury which was unleashed

in 2008 The Tibetan unrest of 2008 was a series of protests and demonstrations - not merely in

the Tibet Autonomous Region but elsewhere as well - that later transformed into rioting burning

looting and even killing59

The rioters set fire to state vehicles and clashed violently with the

police installed in the region The crackdown of Chinese authorities in response to the riots was

severe resulting in deaths on both sides and mass imprisonment by state authorities The degree

to which human rights were violated and abused during this crackdown cannot be overstated

The Chinese also revoked the freedom of sharing of information and imposed a ban on the entry

of media officials in the region to contain

information about the unrest and play down

protests60

A Tibetan Government in Exile has existed in India

since 1959 established by the 14th

Dalai Lama61

This Central Tibetan Administration considers the

issue as an illegitimate military occupation by the

Chinese state The Administration works with the

agendas of restoration of freedom in Tibet and rehabilitation of Tibetan refugees

Historical facts refute such a fallacy however The simple reality that the installation of the 14th Dalai Lama

needed the approval of the national government is sufficient proof that Tibet did not possess any independent power

during that period ndash (httpwwwchinaorgcne-whitetibet9-2htm)

56

httpwwwunhcrorgrefworldcountryAMNESTYCHN49b8dfc11a0html 57

Ibid 58

Grunfeld A Tom Reassessing Tibet Policy 2000 59

httpwwwnytimescom20080316worldasia16iht-tibet111134870html 60

Watts Jonathan Branigan Tania (March 18 2008) Tension rises as armed police mass in capital The

Guardian (London) Retrieved November 1 2011 61

httpwwwtibetnetenindexphpid=14

UNHRC 17 of 44

The censured freedom of expression is one of the multiple infringements on rights that are

imposed by China on Tibet Tibetans are denied the basic right to articulate their views through

political discourse Human rights activists advocate the freedom of speech for Tibetans under the

existing and future political arrangements Religious and political figures in Tibet are placed

under house arrest limiting their freedom of movement (in contradiction to article 13 of the

Universal Declaration of Human Rights)62

As was highlighted during the unrest in 2008 China

has often stripped the Tibetan population of its fundamental rights to associate and assemble In

2000 nine Tibetan prisoners in Kandze were charged for participating in a peaceful protest to

five-year prison terms in October 1999 (which were later increased to ten-year terms)63

This example leads us to another crop of abuse conducted overtly by Chinese authorities

arbitrary detention Article 9 of the Universal Declaration of Human Rights reads ―No one shall

be subjected to arbitrary arrest detention or exile64

Chinese law however permits authorities

to detain persons without formally arresting or charging them and persons may be sentenced

administratively to up to 3 years in reeducation-through-labor camps and other similar facilities

without a trial

Chinese authorities have been unresponsive to concerns expressed by the United Nations

Working Group on Arbitrary Detention No counter-explanation was given either over the case

of three Tibetans who had their sentences extended for staging a peaceful political protest during

the Working Groups visit to Drapchi in October 1997 despite international pressure65

Infinite

examples of arbitrary arrests and detentions exist in China international authorities have called

on China to cease this practice and release such detainees immediately absent evidence that they

have engaged in criminal acts No state can or should be able to hold anyone for engaging in

peaceful political activity All humans

should be granted internationally recognized

due-process protections which includes the

right to be informed of the charges leveled

against them66

The question of whether

these detainees are given an impartial trial if

one at all is not even raised

In addition to the arrests carried out in

violation of international law there are

grave evidences of abuses during detention

62

httpwwwhrworgnews20000612human-rights-violations-tibet 63

Ibid 64

httpwwwunorgendocumentsudhr 65

httpwwwhrworgnews20000612human-rights-violations-tibet 66

httpwwwhrworgnews20000612human-rights-violations-tibet

UNHRC 18 of 44

Incidences of beatings at time of arrest and torture (including the administration of electric

shocks and deprivation of food and medical treatment)67

during custody are widely reported

These are not isolated cases rather the product of a holistic policy of dealing with political

dissidents In one notable incident in May 1998 political prisoners in Drapchi staged major

protests to coincide with a visit from a European Union delegation The protests were non-

violent but the authorities reaction was severe several protestors were shot at and one monk

Lobsang Gelek subsequently died68

The Convention Against Torture (CAT ratified by China in 1988) requires the state to prevent

torture and punish those in violation of the law China has not amended its own laws to comply

with even the first article of CAT69

Such practices explicitly stand in contempt of Article 5 of

the Universal Declaration of Rights which censures the use of torture or cruel treatment as

punishment Dr Manfred Nowak the UN Special Rapporteur on Torture stated that ―he was

struck by the strictness of prison discipline and a palpable level of fear and self-censorship when

talking to detainees following his brief assessment of Chinese and Tibetan prisons in 200570

The committee will be looked upon to review ways in which the situation can be monitored more

carefully and what responses if any can be cultivated to impede similar future actions by

China

The continued violations of religious freedom and implementation of policies designed to

diminish religious practices by the State to serve its political needs is a cause of concern Again

referring to the Universal Declaration of Human Rights Article 18 reads ―Everyone has the right

to freedom ofhellipreligion this right includes freedomhellipto manifest his religion or belief in

teaching practice worship and observance71

The policies implemented by Chinese authorities

through use of coercion violent repression and imprisonment impinge upon the freedom of

Tibetans to practice their religion freely China has also strictly enforced re-education programs

for dissident factors within the state The program is aimed at ―combating separatism protecting

stability and promoting development and is intended to reform the political ideology of people

who refuse to accept state control of what they perceive as vital aspects of their religious lives

and beliefs The committee will be expected to deliberate upon the protection of religious

freedom and practices of individuals as well as the validity of these re-education programs in

light of human rights and liberties

Tibet is not the only region where political tensions surrounding autonomy run high The

Kosovo-Serbian conflict is pertinent to recall The Republic of Kosovo declared itself to be an

independent entity on February 17 2008 As of 11 October 2011 85 UN states recognize the

independence of Kosovo However Serbia maintains that Kosovo is a UN governed entity under

67

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 68

httpwwwfreetibetorgabouttorture 69

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 70

Ibid 71

httpwwwunorgendocumentsudhr

UNHRC 19 of 44

its sovereignty Russia and China are among those who do not recognize the Republic while the

USA UK and France have recognized Kosovolsquos declaration of independence This highlights the

rift between the United Nations Security Council over the issue The case of Tibet is all the more

important in light of the fact that many such pockets exist in the world struggling for self-

determination

Media Links

httpwwwfreetibetorgnewsmedia2008-protests-summary

httpwwwguardiancoukworldgallery2008mar19tibetchinapicture=333178281ampindex=7

Chinarsquos Violation of Ethnic Minority Rights

One of the greatest blemishes on Chinalsquos human rights record is in the area of ethnic minorities

and the extent to which China protects ethnic minority rights On paper Chinalsquos policies are

based on ethnic equality and regional ethnic autonomy Ethnic minorities are supposed to be

benefitting from preferential policies in the political economic cultural and educational spheres

However the ground realities are infinitely different Questions have been raised over the extent

to which the government fairly provides services to these minorities and allocates resources

equally to them The Chinese government is seen to largely prefer its Han majority The

minorities claim they are exploited for their resources and in turn not even provided with the

same level of social services as the Han people China is an atheistic government and the fact

that many ethnicities garner their identity in major part from their religious affiliation leads to a

precarious situation The Mongols Tibetans and Uighurs all come to mind when discussing the

issue of China and ethnic minority rights

―Everyone is entitled to all the rights and freedoms set forth in this Declaration without

distinction of any kind such as race colour sex language religion political or other opinion

national or social origin property birth or other status Furthermore no distinction shall be

made on the basis of the political jurisdictional or international status of the country or

territory to which a person belongs whether it be independent trust non-self-governing or

under any other limitation of sovereignty

- Article 2 Universal Declaration of Human Rights

The International Convention on the Elimination of Racial Discrimination defines racial

discrimination as any distinction exclusion restriction or preference based on race colour

descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the

recognition enjoyment or exercise on an equal footing of human rights and fundamental

UNHRC 20 of 44

freedoms in the political economic social cultural or any other field of public life72

It is due to

this that the international community has adopted the norm of subsuming ethnicity under the

terminology of race

―The Peoples Republic of China is a united multi-ethnic country So far 56 ethnic groups have

been identified and recognized by the central government The population of various ethnic

groups differs greatly While the Han ethnic group has the largest population and that of the

other 55 ethnic groups is relatively small so they are customarily referred to as ethnic

minoritieslsquo According to the fifth national census conducted in 2000 the population of all the

55 ethnic minority groups totaled 10449 million accounting for 841 percent of the total

population of China73

Chinas official 55 minorities are located primarily in the south west

and north of China Only Tibet and Xinjiang have a majority population of official minorities

while all other provinces municipalities and regions of China have a Han majority

One of Chinalsquos autonomous regions is the Xinjiang Uighur Autonomous Region (XUAR)

located in western China The area is vast accounting for one sixth of Chinalsquos land and houses

around 13 major ethnicities including the Uighurs who are a predominantly Muslim people with

origins in Central Asia The Uighurs have had strained ties with the state and have often resisted

Chinese authority74

In turn the Chinese government has reacted sometimes violently against

restless factions in the region One of the most passive aggressive forms of response on the part

of the Peoplelsquos Republic has been the encouragement of the migration of the Han people ndash

Chinalsquos ethnic majority ndash to the XUAR75

Around 90 of Xinjiangs population comprised of

Uighurs in 1949 now it is estimated that Uighurs make up only about 45 of the population76

The policies in Xinjiang are said to be designed to ―promote economic development not

demographic change In reality though the influx of migrants has amplified Uighur discontent

as Han and Uighurs compete over limited jobs and natural resources77

The United Stateslsquo

Congressional-Executive Commission on China reported that in 2006 the XPCC (Xinjiang

Production and Construction Core) reserved approximately 800 of 840 civil servant job openings

for Han Chinese78

One of the causes of the Han monopoly in the employment sector is the

linguistic advantage afforded to them and perpetuated by the education system As part of its

efforts to implicitly impose a unified culture the language policy was altered by the state with

an increased focus on use of Mandarin in schools at the expense of the local languages

Methods of education special to the ethnic peoples of the XUAR including the Muslim Uighurs

are suppressed For example a campaign by the PRC in 2001 targeted religious teachers and

72

httpwww2ohchrorgenglishlawcerdhtm 73

httpenglishgovcnofficial2005-0728content_18127htm 74

httpwwwcfrorgchinaeast-turkestan-islamic-movement-etimp9179 75

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p8 76

httpnewsbbccouk2hiasia-pacific3330803stm 77

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p4 78

httpwwwcolumbiaeducunewsclips20080801UighursTWPOSTpdf

UNHRC 21 of 44

endeavored to sever ties between mosques and groups involved in allegedly ―separatist

activities Around 8000 imams were required to undergo ―political reeducation in this regard

and become ―patriotic religious personalities Ethnic minorities are educated in ways that do not

allow them to learn their own languages or practice their own religion In 2001 for example a

Muslim girl was expelled from school for praying 79

Moreover in an attempt to further its socialist agenda and bind ethnic minorities together

minority cultural activities are often hindered In its place nationalistic values are given a

premium and integrated into society so as to tie the entire country in a unified Chinese foldlsquo

Resultantly an asymmetry with regards to the provision of services and protection of cultural

identity can be found in almost every ethnic minority region in the country The repression

against minorities has wider implications on the human rights situation for all This leads to

creation of a vindictive attitude among the minorities not only against the government but also

the Han majority

In July 2009 this attitude manifested itself in

the form of severe riots between the Han and

Uighur communities in Xinjianglsquos capital city

Urumqi Ethnic tensions elevated to the point

that police involvement was made necessary

According to Chinese state media at least 150

people were killed and more than 800 were

injured The riots were reportedly sparked by a

Uighur protest over the ethnically motivated

killing of two Uighur workers in the southern

province of Guangdong

On the topic of allegations of separatism it is interesting to note that post 911 it has been noted

that the Chinese government has used concerns about terrorism as a method for suppressing

ethnic activity This is possible through the characterization of certain ethnicities as having

fundamental leanings The Muslim Uighurs fell under fire for this very reason after the

September 2001 attacks

One of the ways that the Chinese government with its Han leanings has asserted its presence in

the region is through the smokescreen of the XPCC The Peoplelsquos Liberation Army and the

XPCC are present in the region per the government to ―consolidate border defense accelerate

79

wwwminorityrightsorgdownloadphpid=29 Page 30

UNHRC 22 of 44

Xinjianglsquos development and reduce the economic burden on local governments and the local

people of all ethnic groups80

The heavy militarization of ethnic minority

regions also enables the Chinese government

to quickly respond to skirmishes between the

minorities and the Han For example clashes

between the Uighurs and the Han in the

XUAR are quickly clamped down upon The

response by Chinese authorities always

focuses on the minority groups in the region

The typical response includes a period of

strike hardlsquo security measures during which the minorities are subjected to police patrols of

crowded areas identity checks street searches increased criminal investigations and accelerated

trials The measures also include mandatory political indoctrination classes for the Uighur

population Swift Chinese response to ethnic dissidence precludes the possibility of trying

protestersrioters under due process This phenomenon also contributes to the controversy of

China and its policy of arbitrary imprisonment

Essential to any countrylsquos social progress is the protection and provision of the basic rights to all

its citizens For a country like China which has a significant standing in the international

community the degree to which human rights are upheld comes under added scrutiny Minorities

need to be guaranteed provision of not only fundamental rights but additional ones that grant

them equal opportunities

Recent Developments

3 November 2010 UN Secretary General pushes China on human rights

Ban Ki-moon the United Nations secretary general has called on China to respect human rights

after critics accused him of dodging the issue on a trip to Beijing The UN secretary general met

Hu Jintao the Chinese president but failed to challenge Mr Hu on the imprisonment of Liu

Xiaobo the democracy activist who was awarded this years Nobel Peace prize and raise the

issue of human rights81

80

httpwwwchinaorgcne-white200305269htm 81

httpwwwtelegraphcouknewsworldnewsasiachina8107148UN-Secretary-General-pushes-China-on-human-

rightshtml

UNHRC 23 of 44

5 November 2011 Yeqing Ji from Shanghai China will most likely not be able to have children

after she said two forced abortions physically impaired her uterus82

8 September 2011 The Chinese government has renewed Googlelsquos license to allow it to

continue operating its local website in the country83

13 November 2011 Seven months ago

Chinese police detained the countrylsquos most prominent artist Ai Weiwei at the airport and drove

him to a hidden location It was the beginning of what is to be a two-and-a-half month nightmare

for the architect and sculptor who is also a former darling of the Communist Party who later

turned into an outspoken government critic Ai was held on vague charges of economic crimes

was kept in isolation and subjected to Kafka-esque interrogations84

April 19 2011 Amnesty International a 21-year-old monk Phuntsog set himself on fire in an

apparent anti-government protest in March 2011 Instead of putting out the flames Chinese

police beat the young monk creating huge resentment in the monastery85

At least 11 ethnic

Tibetans have been detained for protesting against the event and against government policies

They are at risk of torture and other ill-treatment86

29 May 2011 300 Tibetan monks detained in Kirti monastery by Chinese security forces87

15 September 2011 Chinese Uighurs economic fears

Amid ethnic tensions minority regards modernization plans in Xinjiang as favoring Han Chinese

migrants88

20 November 2011 Another of Chinalsquos minorities the Hui Muslims in Ningxia do not feel

stigmatized

―There is an important reason why Hui and Han Chinese get along with each other Unlike

Muslims of the other ethnic minorities like Uighur Kazakh Kyrgyz and Tajik the Hui Muslims

speak Mandarin just like the Hans89

82

httpabcnewsgocomBusinesswoman-china-forced-abortions-leaves-unable-

childrenstoryid=14880884Tsia7LIk6so 83

httpwwwbbccouknewsbusiness-14832392 84

httpwwwthedailybeastcomnewsweek20111113ai-weiwei-speaks-out-on-his-detentionhtml 85

httphradvorgaggregatorsources10 86

httpwwwamnestyorgenlibraryassetASA170212011end75f7611-be66-4d5a-9391-

c80c43501d56asa170212011enhtml 87

httphumanrightshouseorgArticles16503html 88

httpwwwaljazeeracomvideoasia20110920119158016969449html 89

httpwwwtodayszamancomnews-263322-chinas-hui-muslims-do-not-feel-stigmatizedhtml

UNHRC 24 of 44

Conclusion

The United Nations Human Rights Council at LUMUN 2012 will be looked upon to provide a

framework for the resolution of these issues in a universal context The scope of the issues

should be expanded and applied to countries other than China The committee will have to make

recommendations which have universal application and resolve all aspects of the issue

comprehensively For any queries related to the study guide please do contact either (or both)

the committee directors at the given addresses

UNHRC 25 of 44

Topic Area B Abolishing the Death Penalty

Introduction to the Topic Area

The death penalty is formally defined as the execution of an offender sentenced to death after

conviction by a court of law of a criminal offenselsquo90

The concept of a capital crime is subjective

and states have made use of this practice in response to multiple forms of crime The use of the

death penalty has produced much controversy with regard to its apparent violation of

fundamental human rights as delineated in the Universal Declaration of Human Rights and

subsequent human rights charters and treaties It is asserted that the use of death penalty is in

contravention to the peopleslsquo right to life promised to every individual under Article 3 of the

Declaration91

Moreover Article 2 of the Charter of Fundamental Rights of the European Union

lucidly bars the imposition of death penalty as a form of punishment92

Arguments against the

use of death penalty are also made on the grounds of inhumane methods which are employed to

see out the process Historically multiple methods have been used which include death by

hanging severing of the head lethal injection shooting and electrocution93

94

As a response states have made keen efforts to abolish

the death penalty particularly in the last two decades as

can be interpreted from the graph on the right which

represents the number of states that have abolished the

death penalty Countries belonging to the European

region with the exclusion of Russia and Belarus have

sought to revoke the use of the practice The death

penalty is most commonly seen to be a formal practice

in most of the developing countries The trend is

apparent in Latin America Africa and Asia

96 countries have formally abandoned the use of death penalty 58 countries allow the use95

Other states have abolished the penalty in practice but the laws remain in place for the

imposition of the penalty as a response to certain crimes The imposition of the death penalty has

90

httpwwwbritannicacomEBcheckedtopic93902capital-punishment 91

httpwwwunorgendocumentsudhr 92

httpwwweuroparleuropaeucharterpdftext_enpdf 93

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffle

re-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 94

httpwwwdeathpenaltyinfoorgmethods-execution 95

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf

Figure 1 (Drag to enlarge)

UNHRC 26 of 44

seen a decline over the recent years with a fall in the number of executions that take place

annually It would however be incorrect to assume that the practice is not prevalent or widely in

effect Amnesty International reported that at least 2024 new death sentences were imposed in 67

countries in 2010 Moreover there were at least 17833 people sentenced to death worldwide at

the end of 201096

Again these are minimum figures which are the safest that can be inferred

from the given research There were 527 known executions carried out in 2010 globally97

This

figure however does not include the number of executions that took place in China where

analysts believe that more than a thousand people were put to death in the past year

The statistics represent the number of people executed through capital punishment One way to

formally define capital punishment is to regard it as the state sanctioned killing of an individual

through a judicial process as a punishment for a crime (defined as a capital crime by the state)98

Capital punishment is the most obvious and prevalent manifestation of the death penalty It is

often perceived as a statelsquos right in order to preserve law and order against any individual who

engages in serious crimes that threaten other individuals or the state Those who advocate against

the use of capital punishment label it as a symptom of a culture of violence not a solution to

itlsquo99

The controversy surrounding the topic is based on the legal ethical and moral acceptability

of the statelsquos right to an individuallsquos life The debate entails several social and economic factors

some of which will be reviewed in closer detail in the relevant section of this guide

One of the most striking aspects related to the issue is the imposition of the capital punishment

on juveniles The sentencing of juveniles to death is in clear breach of international law The

morality and validity of such a practice is often called into question and has been put under

relentless scrutiny despite all of which the practice is still carried out in a number of countries

Historically the United States China and Iran have the worst records relating to juvenile death

sentences100

The study guide also includes a separate section for the case of juveniles in which

the legal and social aspects of the problems are detailed

As stated states have made use of the death penalty to punish crimes of varying natures The use

of the death penalty is reserved for only the most seriouslsquo crimes as put forth in international

law101

The notion of a capital crime however is a subjective one states that have doled out

death sentences have defined it differently In certain countries the death penalty is only used to

charge criminals accused of war crimes In other countries the penalty is reserved for crimes like

96

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf 97

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010 98

httpusersrcncommwooddeathpenhtml 99

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 100

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 101

httpwwwunorgdocumentsecosocdocs1995e1995-78htm

UNHRC 27 of 44

murder rape or even robbery States also use the death penalty against individuals who are guilty

of treason The issue however is that many states practicing the death penalty impose the

punishment even when the crimes do not meet the threshold for the aforementioned most

seriouslsquo crimes The ability of states to define what constitutes as a capital crime has led to states

abusing their powers as has been observed in the sentences ordained by military courts

Moreover even the radicals who make the argument of the punishment fitting the crime agree

that in many instances individuals have been executed for softlsquo crimes crimes that were

certainly not tantamount to charges of murder or crimes against humanity The issue of apparent

violations of human rights is further exacerbated in these instances The study guide will discuss

the universal crimes that have resulted in the awarding of the death penalty and examine the

issue further The committee will be expected to discuss the feasibility of drawing up an

international definition of crimes which in isolated instances perhaps may be appropriate for a

sentence like the death penalty

Another pertinent aspect surrounding the debate is that of extrajudicial killings The execution of

a person by state authorities without the authority of a judicial proceeding is termed as an

extrajudicial killing Many states have used extrajudicial killings to establish their authority and

order without having to wade through the legal process By doing so they have deprived scores

of people of their fundamental right to free and fair trials Governments have also employed this

tactic to exercise political aggression and to suppress dissent A particular point of concern is the

fact that some states have made use of these killings even when they have officially revoked the

imposition of the death penalty Extrajudicial killings are carried out persistently in many

countries ndash the list includes countries like Iran Iraq Israel Philippines102

Most recently the

killing of Anwar al-Awlaki and Samir Khan in Yemen by a sanctioned National Security Council

move by the USA was an example of states embarking on such paths to eliminate threats to

national securitylsquo103

102

Multiple citations for each country can be found in the second paragraph article titled Extrajudicial killinglsquo on

Wikipedia 103

httpwwwtelegraphcouknewsworldnewsbarackobama7564581Barack-Obama-orders-killing-of-US-cleric-

Anwar-al-Awlakihtml

UNHRC 28 of 44

Wrongful convictions lead many to believe in the inherent incapacity of the death penalty to

serve justice On September 21 2011 US citizen Troy Davis was executed in Georgia after

which seven of the nine witnesses who testified against him in the case that led to his execution

recounted or retracted their evidences A petition with nearly one million signatures was put

forth to reconsider his case it was rejected On the same day a 17 year old boy was publicly

hanged in Iran for killing a popular athlete his justification based on self-defense was ignored

Also on the same day a Pakistani national was executed in China on grounds of drug trafficking

an offence that does not often result in capital punishment The need for the resolution of this

issue is pressing and the committee needs to deal with all aspects of the problem in a

comprehensive and enduring manner104

Capital Punishment

In 2010 23 countries implemented capital punishment A total of 527 executions (plus the 1000+

carried out in China alone) were known to have taken place with Iran Yemen USA and North

Korea meting out a significant number of sentences105

The figure is lower than the records

computed for years past There are more states which are now abolitionist either in law or in

practice with regard to the imposition of the punishment Gabon was officially the last country

to rescind the practice while bills calling for an end to capital punishment have been presented

to parliaments in Lebanon Mali Mongolia and South Korea106

Renewed efforts are

104

httpwwwamnestyorgennews-and-updatesus-executes-death-row-prisoner-troy-davis-2011-09-21 105

httpwwwguardiancouknewsdatablog2011mar29death-penalty-countries-world 106

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010

UNHRC 29 of 44

simultaneously being made on the international front to implement laws against capital

punishment A third resolution establishing a moratorium on the use of death penalty passed the

UN General Assembly on December 21 2010107

Despite the increasing momentum towards an eventual elimination of the practice the number of

executions taking place annually is a cause of major concern Advocates of the death penalty

assert that the practice is an effective means of deterring crime in society Public executions are

often held in Iran Afghanistan and Palestine for example to demonstrate the fate awaiting

those who commit similar crimes108

Arguments are made on the grounds of justice that it is

proper and fair to take an eye for an eye and a life for a life and that some individuals deserve

it for the crimes they commit

Those opposing the practice question the morality of an action sanctioned by the state which

endorses deprivation of the right to life a fundamental human right under the Universal

Declaration of Human Rights109

There are inescapable flaws within legal systems which are

aggravated by discrimination prosecutorial misconduct and inadequate legal representation

Moreover the risk of executing the innocent can never be eliminated110

An alternative is

presented in the form of imprisonment for life without parole which results in a parallel debate

is imprisonment for life a viable surrogate to the practice of death penalty A thread from this

debate also relates to the economic feasibility of carrying out a death sentence as opposed to the

feasibility of imprisonment for life

Deterrence

Capital punishment is often propagated as an adequate approach in the deterrence and prevention

of crime The logic is that if murderers are sentenced to death potential murderers will think

twice before killing for fear of losing their own life The deterrence theory presumes that the

once the punishment for a certain crime is established the criminal by committing the crime

voluntarily assumes the risk of receiving the prescribed punishment for the crime Only when the

most severe punishment has been set will there be a possibility of an individual evaluating their

actions in light of the consequences111

107

httpwwwundemocracycomA-RES-62-149pdf 108

httpwwwamnestyorgennews-and-updatessharp-rise-public-executions-iran-executes-first-juvenile-

offenders-2011-2011-04-27 109

wwwunorgendocumentsudhr 110

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 111

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 30 of 44

The death penalty it is asserted ensures that convicted criminals do not offend again moreover

it is deemed to be a just penalty for atrocious crimes It is further alleged that many criminals

who are set free even after lengthy sentences regress and go on to commit heinous crimes

Therefore there should never be the possibility of a release clause112

The deterrence theory is modeled on the grounds of human psychology logic and rationale As a

professor of jurisprudence Ernest van den Haag PhD wrote ―Common sense lately bolstered

by statistics tells us that the death penalty will deter murder if anything can People fear nothing

more than death Therefore nothing will deter a criminal more than the fear of death These

statements were further validated by a US Supreme Court Justice who said on record that

Prima facie the penalty of death is likely to have a stronger effect as a deterrent to normal

human beings than any other form of punishmentlsquo113

Numerous studies have been conducted on

the subject with varying results One of the most established studies was conducted in USA

using a panel data set of over 3000 counties from 1977 to 1996 which concluded that on

average one death sentence resulted in 18 fewer murders114

Delegates will be expected to be

familiar with other similar studies

These studies are commonly refuted as not crediblelsquo by opponents of the capital punishment

who also deny the correlation between crime and death penalty as a fabricated relationship which

cannot be empirically established115116

A study of the relationship between capital punishment

and the incidence of murder was conducted for the UN in 1988 and updated in 2002 The

conclusion was ―The investigation has not provided scientific proof that executions have more

deterrent effect than life imprisonment It is unlikely that such evidence will ever come

Deterrence hypothesis finds no support in the survey117

Another counter-argument asserts that crime is still a persistent feature of the societies that

continue to award the death penalty while many of the abolitionist states enjoy low crime rates

This can be evidenced by comparing the crime rate in USA or Pakistan with that of Canada or

some European state In Canada for example the homicide rate per 100000 fell from a peak of

309 in 1975 the year before the abolition of the death penalty for murder to 241 in 1980 and

in 2003 27 years after abolition the homicide rate was 173 per 100000 44 per cent lower than

in 1975118

112

httpwwwdeathpenaltyinfoorgfacts-about-deterrence-and-death-penalty 113

httpdeathpenaltyproconorgviewresourcephpresourceID=002000 114

httpdeathpenaltyproconorgsourcefilesThe20Deterrent20Effect20of20Capital20Punishmentpdf ndash

Delegates should carefully examine certain parts of this document to establish the credibility of the assertions made

They should also invest in trying to locate studies that refute the assertions made in this and similar studies 115

httpwwwdeathpenaltyinfoorglaw-enforcement-views-deterrencelawenforcement 116

httpwwwdeathpenaltyinfoorgDonohueDeterpdf 117

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 118

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml

UNHRC 31 of 44

The lack of evidence on the production of a unique deterrent effect points to the danger of

relying on the deterrence hypothesis as a basis for public policy on the death penalty

Retribution amp Morality

An important terminology that delegates need to familiarize themselves with is that of

―retributivism119

It is defined as ―a policy of criminal justice that sponsors the punishment of

criminals in retribution for the harm they have inflicted120

Criminals deserve to be punished in

proportion to the gravity of their crime regardless of whether the victim or anyone else desires

it we may all deeply regret having to carry out the punishment but consider it warrantedlsquo is

what many say in defense of the theory121

The need for the establishment of a visibly just state arises from the potential risks of not having

one As has been visible in many developing countries with shaky legal systems when criminals

are not adequately punished for their unlawful behavior the public takes the law into its own

hands and deals out vigilante justice It is asserted that retributivism is essential for a functioning

society where individuals respect the supremacy of law

The concept of retribution in society is also grounded in religious beliefs The concept of an eye

for an eye has been a part of all three Abrahamic traditions However in the modern world it is

Islamic nations that still retain the practice based on these grounds Similar traditions can be

found in Hinduism Christianity and Buddhism as well as other religions in different parts of the

world In many non-secular countries the constitutions and state laws are derived from religious

doctrines

Opponents dismiss this aspect of the argument as being emotionally charged with little rational

logic to support the contention They claim that the establishment of capital punishment gives

birth to a culture of violence endorsed by the state It perpetuates the cycle of aggression and

brutality something which the state should be actively inhibiting not endorsing

Wrongful Convictions

The death penalty carries with it the danger of wrongfully convicting an innocent person for

crimes he did not commit There is the potential for capital punishment to evolve into sheer

miscarriage of justice as in certain circumstances states are often seen to rush the trials and

convict the accused hastily This practice takes foremost apparently in military courts often in

119

Cavadino M amp Dignan J (1997) The Penal System An Introduction (2nd ed) p 39 London Sage 120

httpdictionaryreferencecombrowseretributivism 121

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 32 of 44

the developing or lesser-developed countries where the system of law is not properly established

It is not however exclusive to these countries Examples can be drawn from countries like

Philippines Thailand Iran and Palestine to name just a few where executions are carried out at

alarming pace removing the possibility of reviews

On 15 August 2004 Atefah Rajabi Sahaaleh was hanged in a public square in the Iranian city of

Neka Her death sentence was imposed for adultery and crimes against chastity122123

Atefah

was executed a week after the trial was run Following the execution the Judge for the case was

arrested for investigation by the Intelligence Ministry The media reported that in addition to the

confession of his rape of Atefeh Judge Rezai who served as judge jury and executioner also

confessed to torturing her during interrogations to extract names of others she had relations with

No transcripts from court proceedings were recorded The State alleged that Atefah was 22 at the

time of her execution A witness later claimed The judge just looked at her body because of

the developed physique and declared her as 22124

ndash her birth certificate revealed she was born

in 1988 Furthermore Atefah did not have access to a proper defense where she could contest

charges leveled against her This is one example of many such cases of miscarriage of justice

Something that recurs in these cases is the failure of the police or prosecuting authorities to

prevent the use of unreliable witnesses the misuse of evidence or confessions and the provision

of inadequate defense representation The advent of DNA profiling and the use of it as positive

evidence in criminal cases has resulted in the exoneration of multiple death row inmates on

grounds of forensic evidence or lack thereof Since 1973 138 people have been released from

death row in the United States after it was proven that they were innocent125

In 2009 Paul

House was cleared of murder and exonerated in Tennessee USA after having served 22 years

on death row His innocence was proclaimed in light of substantial additional DNA testing and

further investigationlsquo 126

Amnesty International has noted examples of wrongful convictions from elsewhere as well

including Jamaica Japan China Nigeria and Tanzania127

Paul G Cassell a former law clerk to

the Chief Justice of USA stated the mistaken release of guilty murderers should be of far greater

concern than the speculative and heretofore nonexistent risk of the mistaken execution of an

innocent personlsquo highlighting the case made by those who advocate the death penalty even in

light of wrongful convictions128

122

httpwwwcosmolearningcomdocumentariesexecution-of-a-teenage-girl1 123

httpnewsbbccouk2hi5217424stm 124

httpnewsbbccouk2hi5217424stm 125

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 126

httparticlescnncom2009-05-13justicetennesseeexonerated_1_death-row-inmate-dna-evidence-house-

arrest_s=PMCRIME 127

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 128

httpdeathpenaltycurriculumorgstudentcaboutargumentstestimony3bhtm

UNHRC 33 of 44

Alternative to Death Penalty

All abolitionist states have reverted to the practice of sentencing criminals to life imprisonment

(some without parole) which is also termed as death by incarceration Widely regarded as a more

humane course of action life imprisonment is also alleged to be a more economical practice

While ensuring public safety by keeping criminals away from society this system also saves the

lives of innocent people who have been falsely or wrongfully convicted The setup inhibits and

curbs the cycle of violence while retaining the deterrence factor it is strongly asserted

Advocates for the death penalty are averse towards life imprisonment for a number of reasons

They cite the unreliability of the system as one of the flaws which impedes the possibility of

such a sentence being successful A certain James Moore serves as a valid example in this case

In 1962 James Moore raped and strangled 14-year-old Pamela Moss The victimlsquos parents opted

out of capital punishment for Moore and he was instead sentenced to life in prison without

parole Twenty years later a change in sentencing laws in 1982 renders James Moore eligible for

parole every two years129130

Kenneth McDuff is another example McDuff was convicted and sentenced to life imprisonment

Years later due to the issue of overcrowding in prisons McDuff was released following which

he killed eight more people McDufflsquos example is of an individual from a developed country

with an established legal system in place131

Overcrowding is a feature of prisons in developing

or lesser developed countries In many such states criminals have also been known to easily

break out from penitentiaries

The economic aspect of the debate is murky at best There is a lack of empirical data on the

subject which is why the arguments of both these sides cannot be settled beyond doubt

Advocates of capital punishment insist that the overall costs of the practice are far lesser than the

costs of housing an inmate for a lifetime132

They also suggest that the life imprisonment allows

criminals to conceive new habeas corpus petitions which on legal grounds cannot be rejected

automatically resulting in more trials

On the other hand substantial arguments are made which stress that the cost of legal proceedings

in capital cases is in truth more than that of other cases States and nations spend a significant

portion of the taxpayerlsquos money in meting out such punishments133

Delegates when addressing

this portion of the debate will need to be aware of the financial aspects of the issue as it forms

for many states an important part of whether capital punishment should be revoked or

not

129

httpwesleylowecomcphtmldeter 130

httpwwwnytimescomkeywordparole 131

httpwesleylowecomcphtmldeter 132

Ibid ndash view section titled Capital Punishment and its costslsquo 133

httpwwwamnestyusaorgour-workissuesdeath-penaltyus-death-penalty-factsdeath-penalty-cost

UNHRC 34 of 44

Imposition of Death Penalty on Juveniles

The prohibition on the death penalty for crimes committed by juvenile offendersmdashpersons under

age 18 at the time of the offensemdashis well established in international law specifically in the

Convention on the Rights of Child

ldquoNo child shall be subjected to torture or other cruel inhuman or degrading treatment or

punishment Neither capital punishment nor life imprisonment without possibility of release shall

be imposed for offences committed by persons below eighteen years of agerdquo134

- Article 37(a) Convention on the Rights of Child

ldquoSentence of death shall not be imposed for crimes committed by persons below eighteen years

of age and shall not be carried out on pregnant womenrdquo135

- Article 6(5) International Covenant on Civil and Political Rights

The treaties are a unanimously agreed set of non-negotiable standards and obligations By

acceding to the treaties and ratifying them governments commit to protecting and ensuring

childrens rights and to holding themselves accountable for this commitment before the

international community

Even though the practice of capital punishment on juveniles is relatively rare however in clear

contravention of international law nine countries have executed offenders who were juveniles at

the time of their crimes between 1990 and 2005136

These countries include the Peoples Republic

of China (PRC) the Democratic Republic of the Congo Iran Nigeria Pakistan Saudi Arabia

Sudan the United States and Yemen137

The USA has since moved to implement a ban on capital

punishment for juveniles However in most other countries of the preceding list the practice is

still enshrined in the judicial system Iranlsquos record in particular has been abominable over the last

decade It has carried out 39 executions of persons under the age of 18 since 2005 Presently

over a hundred individuals are placed on death row for crimes committed as juveniles The

executions of Mahmoud Asgari Ayaz Marhoni and Makwan Moloudzadeh became international

symbols of Irans child capital punishment and the judicial system that hands down such

134

httpwww2ohchrorgenglishlawcrchtm 135

httpwww2ohchrorgenglishlawccprhtm 136

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf - This document by the Human Rights Watch

called The Last Holdoutslsquo is a good summary of juvenile executions and should be reviewed 137

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 - Contains a list with

statistics and details of countries which have allowed the imposition of death sentence to juveniles

UNHRC 35 of 44

sentences138139140

Saudi Arabia and China too have questionable records that need to be

scrutinized further

While regional treaties and charters usually substantiate international law the Arab Human

Rights Charter of 2004 is unique among regional and international treaties in that the ban on the

juvenile death penalty in it is not absolute but merely optional141

Furthermore national laws in states that observe such a practice are in violation of

international legally-binding charters In Iran and Saudi Arabia laws usually treat a child the

same way as an adult criminal offender would be treated Article 10(3) of the International

Covenant on Civil and Political Rights emphasizes the need for demarcation between the

handling of children and that of adults in stating ―Juvenile offenders shall be segregated from

adults and be accorded treatment appropriate to their age and legal status142

The definition of a child in these Muslim states is unclear as adulthood is associated with

attainment of puberty which is a relative concept The Committee on the Rights of the Child in

January 2005 censured the Saudi government for its practice of imposing the death penalty on

juveniles terming it a serious violation of the fundamental rights The committee was deeply

alarmed over the discretionary power judges hold to treat juveniles as adults as was stated in

the committeelsquos report Iran too was strongly condemned following the release of an

international report highlighting the dire situation in Iran by the International for Human Rights 143

138

httpwwwfoxnewscomstory0293329798200html 139

httpnewsbbccouk2himiddle_east7130380stm 140

httpenwikipediaorgwikiCapital_punishmentIran 141

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 142

httpwww2ohchrorgenglishlawccprhtm 143

httpwwwfidhorgIMGpdfRapport_Iran_finalpdf

UNHRC 36 of 44

On August 19 2008 Iranian authorities executed Seyyed Reza Hejazi at Isfahan Central Prison

for his role in a murder committed in 2003 when he was 15 Hejazi was tried as an adult by

Branch 106 of the Isfahan General Court even if he did not qualify as one under international

stipulations and sentenced to death on November 14 2005144

In Saudi Arabia Mu`id bin

Husayn bin Abu al-Qasim bin `Ali Hakami was executed on July 10 2007 for a murder he

allegedly committed three years earlier when he was 13 years old145

The judges in these states

because of the implementation of the Sharialsquo law have a large amount of discretion with regard

to their rulings This discretion is often abused in the interrogation and judicial proceedings In

Pakistan authorities hanged Mutaber Khan in Peshawar Central Prison on June 13 2006 on

charges of murder of five people The fact that he was held in the juvenile wing of Peshawar

Central prison and the evidence presented by the accused confirming that his age was below 18

at the time of the killings were not taken into account during the trials and Mutaber was charged

as an adult in the case146

While the above does not cover exhaustively the practice of capitally punishing juveniles the

committee is expected to be well read on the matter The committee will be required to devise

ways to strictly apply the existing international law on the subject to curtail further deaths of

juveniles by states A series of recommendations on better implementation of international

covenants will be expected from the committee Delegates at UNHRC will also have to

familiarize themselves with the stipulations in the national laws of countries practicing juvenile

death penalties (Iran Saudi Arabia Pakistan Nigeria Sudan Yemen and UAE among others) to

discuss how these states are constitutionally able to bend international law and mete out the

illegal punishments

144

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 145

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 146

See FIDH and Human Rights Commission of Pakistan ―Slow march to the gallows and ―Condemned Prisoner

Executed Dawn Newspaper Karachi June 14 2005 httpwwwdawncom20060614nat16htm

UNHRC 37 of 44

Universality of Laws Incurring the Death Penalty

In countries which have not abolished the death penalty capital punishment may be imposed

only for the most serious crimes it being understood that their scope should not go beyond

intentional crimes with lethal or other extremely grave consequences

- Safeguards guaranteeing protection of the rights of those facing the death penalty147

Laws incurring the death penalty or capital crimes have certain uniformity the world over This

is of course barring states that are religiously affiliated and whose law systems are not secular

in nature The list of capital crimes for those states with non-secular legal systems is slightly

different The Human Rights Commission had decided that the imposition in the State party of

the death penalty for offences which cannot be characterized as the most serious including

apostasy committing a third homosexual act illicit sex embezzlement by officials and theft by

force are incompatible with Article 6 of the Covenant Economic offences including

embezzlement drug related offences political offences and robbery were also referred to148

The reason why looking into capital crimes and trying to garner a global impression of them is

important is that the death penalty can only realistically be abolished in a piecemeal way This

process will entail shortening the list of capital crimes The UN formally notes that ―in order

fully to guarantee the right to life provided for in article 3 of the Universal Declaration of

Human Rights the main objective to be pursued is that of progressively restricting the number of

offences for which capital punishment may be imposed with a view to the desirability of

abolishing this punishment in all countries149

The first established death penalty laws date as far back as the Eighteenth Century BC in the

Code of King Hammaurabi of Babylon which codified the death penalty for 25 different crimes

By the 1700s 222 crimes were punishable by death in Britain including stealing cutting down a

tree and robbing a rabbit warren In the 19th

century the death penalty was eliminated for over

100 of the 222 crimes punishable by death 150

In modern times the UN Special Rapporteur on

extrajudicial summary or arbitrary executions has stated that the death penalty should be

eliminated for economic crimes and drug-related offences and that the restrictions to its use

―exclude the possibility of death sentences for so-called victimless offences ndash including acts of

treason espionage and other vaguely defined acts usually described as crimes against the Statelsquo

or disloyaltylsquo and ―actions primarily related to prevailing moral values such as adultery and

prostitution as well as matters of sexual orientation151

147

httpwww2ohchrorgenglishlawpdfprotectionpdf 148

httpwwwunhchrchtbsdocnsf0bc310a747155dff88025655300537faeOpendocument 149

General Assembly resolution 2857 httpwwwunodcorgpdfcompendiumcompendium_2006_part_01_05pdf 150

httpdeathpenaltycurriculumorgstudentcabouthistoryhistoryPDF 151

httpswwwabofimedia24259report10pdf

UNHRC 38 of 44

Contrary to the made recommendations even political dissent warrants a death sentence in

several countries most notably in China and Iran In 2010 nearly 20 Kurdish people were

executed for political offences in Iran The country is known for keeping dissent especially from

the Kurds suppressed Most are executed on the grounds of moharebeh or enmity against God

Moreover challenging the power of the Ayatollah is also punishable by death These charges are

neither explicit nor in line with international guidelines over what crimes are punishable

capitally In Iran judges must handle such cases carefully as Iranian law provides for only one

punishment if an individual is found to be guilty of treason Libya too thwarts political dissent

with firm laws in place for punishing by death those who illegally form groups organizations or

associations against the state152

Saudi Arabia too is worth note for its vaguely phrased laws governing capital punishment

Intentional murder and crimes that spread ―mischief in the land (Fasad fil-ardh) merit death In

2010 the government announced that it had executed 26 people all by beheading Crimes that

―spread mischief include witchcraft and sorcery153

How is one convicted of witchcraft in the

21st century What can the international community do when regarding countries such as these

Treason arguably along with murder is the capital crime that has yet to be phased out by many

countries In some such as Brazil treason during warfare is the only crime for which a person

can be sentenced to death In the Gaza Strip under Hamas any sort of cooperation with Israeli

forces during military actions is also punishable by death In others including Algeria Bahrain

Iran and Malaysia treason is punishable by death in all circumstances The United States too has

federal laws governing treason under which traitors ―shall suffer death154

Child sex abuse is another crime that is widely held to merit the death penalty In Russia for

example according to the Russian Public Opinion Research Center an overwhelming majority

consider the death penalty to be an acceptable punishment especially in relation to molestation

155 In 2009 however Russias Constitutional Court effectively abolished the death penalty by

extending indefinitely a 13-year-old moratorium on capital punishment156

Indonesia has some of the strictest penalties for drug related crimes in the world Roughly half of

those on death row are incriminated with drug-related charges157

In 2008 though the most high

profile executions were of terrorists Three of those found responsible for the 2002 Bali

bombings were executed by shooting158

Generally speaking however a significant proportion of

152

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 153

httpwwwstategovgdrlrlshrrpt2010nea154472htm 154

httpdeathpenaltyproconorgviewresourcephpresourceID=1172 155

httpenrianrutrenddeath_penalty 156

httpwwwreuterscomarticle20091119idUSLJ330478 157

httpwwwnytimescom20080711worldasia11iht-indo114421132html 158

httpnewsbbccouk2hiasia-pacific7718246stm

UNHRC 39 of 44

the executions or death sentences recorded (in 2010) in China Egypt Indonesia Iran Laos

Libya Thailand United Arab Emirates and Yemen were for drug-related offences In December

2010 the amended Anti-Narcotics law came into force in Iran extending the scope of the death

penalty to include additional categories of illegal drugs (for example crystal meth) possession

of which became punishable by death Also around the same time the National Assembly of

Gambia voted to extend the scope of the death penalty by making the possession of more than

250g of heroin or cocaine an offence punishable by death159

Several states allow for the death penalty for crimes of blasphemy and other crimes for

nonviolent expression and association In Pakistan Aasia Bibi a Christian mother of five was

charged with blasphemy and sentenced to death after a trial largely believed to be unfair on 8

November 2010 She is currently on death row The country is also noted for its laws concerning

capital crimes The list includes 27 crimes most of which go beyond the notion of ―most serious

crimes as recommended by the International Covenant on Civil and Political Rights Extra-

marital sex and blasphemy are examples of some capital crimes in the country In December

2007 Pakistan voted against a United Nation General Assembly resolution for a moratorium on

the death penalty The year before however the nation amended its law on rape and adultery

charges which are no longer punishable by death160

As far back as 1989 recommendations have been made as to how to abolish the death penalty

Member states (of the UN) have been urged ―to publish for each category of offence for which

the death penalty is authorized and if possible on an annual basis information about the use of

the death penalty including the number of persons sentenced to death the number of executions

actually carried out the number of persons under sentence of death the number of death

sentences reversed or commuted on appeal and the number of instances in which clemency has

been granted and to include information on the extent to which the safeguards referred to above

are incorporated in national law161

The committee must inspect how far this recommendation

has been adopted and should seek to rectify the weaknesses in the system of gradually

abolishing the death penalty Can a target year be designated by which crimes meriting the death

penalty could be made universal How can countries with non-secular legal systems be brought

into the fold of international law

159

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 160

httpwwwfiacatorgenIMGpdfdppakistan-enpdf 161

httpgraduateinstitutechfacultyclaphamhrdocdocsecosocresolutiondeathpen1989html

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 7: UNHRCFINAL

UNHRC 3 of 44

Conference underway at the UNHRC in Geneva

The Resolution also included the delineation of Special Procedureslsquo established by the former

Commission on Human Rights to comprise of five-member working groups or individual

experts (commonly referred to as Special Rapporteurs) to monitor human rights violations in

thematic or country-specific loci There are currently five Working Groups on people of African

descent on Arbitrary Detention on Enforced or Involuntary Disappearances on the Use of

Mercenaries to Impede the Right of Peoples to Self-Determination and on Situations

(Confidential 1503 Procedure)5

The mandates of the Special Procedures are established and defined by the resolution creating

them Some of the thematic mandates adopted by the Council include the issue of human rights

defenders torture and minorities Special Rapporteurs often conduct fact-finding missions

in countries to investigate allegations of human rights violations They can only visit

countries that have agreed to invite them

The Council is currently headed by Laura Dupuy Lasserre of Uruguay It concluded its

eighteenth session in September 2011 The diversity of the political and social issues

encompassed in the agenda resulted in discussion of issues as varied as the situation in Libya on

one end and water sanitation on the other Also discussed was the situation of human rights in

Syria and the pattern of widespread systematic human rights violations by Syrian security and

military forces was examined The illegal blockade imposed on Gaza was also under focus

Furthermore the Council adopted the outcomes resulting from debate over the Universal

Periodic Review of sixteen countries

5 httpwww2ohchrorgenglishbodieschrworkinggroupshtm

UNHRC 4 of 44

While the Council faces criticism along the lines of that made against the Commission it has

come a long way from being the ―shadow on the ―reputation of the UN system as whole 6

6 httpnewsbbccouk2hiamericas6919268stm

UNHRC 5 of 44

Topic Area A The Great Firewall of China Review of the Human Rights Situation

Introduction to the Topic Area

The Peoplelsquos Republic of China is the worldlsquos most populous country with an estimated

population of 137 billion It is also one of the largest countries in terms of its land territory

China has firmly established itself as a premier world economic powerhouse It is the worlds

second-largest economy after the United States by both nominal GDP ($593 trillion) and

purchasing power parity ($1012 trillion) A single-party state governed by the Communist Party

of China it is widely acknowledged to be the worlds fastest-growing major economy and the

worlds largest exporter and second-largest importer of goods China is also a permanent member

of the UNSC and is a prominent figure in international politics It is a recognized nuclear

weapons state and has the worlds largest standing army with the second-largest defense budget

China is on par with the United States as a superpower and is soon even expected to supersede

the latter as the worldlsquos major politico-economic power

However Chinalsquos record in relation to human rights violations stands out for all the wrong

reasons China has been ruled by the Communist Party since it gained power and established the

Peoplelsquos Republic of China in 1949 It is believed to be in breach of numerous human rights and

its transgressions are a subject of much concern for the entire international community Some

issues like the Tiananmen Square of 1989 or that of Mr Liu Xiaobolsquos imprisonment have seen

the light of day and escaped the iron clutches of Chinese control on media However thousands

of other cases are never brought out into the open and are unable to draw international attention

which is why this year at LUMUNlsquos United Nations Human Rights Council the debate will focus

on China and its human rights violations The human rights abuses in focus will be Chinalsquos

violation of reproductive rights the case of internet censorship in China and the right to free

speech political prisoners in China and illegal detention the infringement of rights in the

conflict with Tibet and ethnic minority rights

The committee will not only be expected to discuss all aspects of the issues distinctly and in

extensive detail The committee will also be expected to be familiar with the Universal

Declaration of Human Rights all pertinent treaties resolutions and conventions

UNHRC 6 of 44

Chinarsquos Violation of Reproductive Rights

While reproductive rights are not specifically mentioned in the Universal Declaration of Human

Rights they are widely understood to be an extension of the freedom of choice and right to life

They are to be granted equally to all humans without discrimination of race sex language or

religion under the United Nations Charter7 Reproductive rights embrace certain human rights

that are already recognized in national laws international human rights documents and other

relevant UN consensus documents The World Health Organization defines reproductive rights

in the following manner

ldquoReproductive rights rest on the recognition of the basic right of all couples and individuals to

decide freely and responsibly the number spacing and timing of their children and to have the

information and means to do so and the right to attain the highest standard of sexual and

reproductive health They also include the right of all to make decisions concerning reproduction

free of discrimination coercion and violence8rdquo

Only if individuals have the freedom to be in control of their sexual and reproductive lives can

uninhibited social development occur However the lack of any binding international covenant

on the subject is a grave state of affairs Soft laws in the form of non-binding measures are

often deemed too inadequate in mounting a challenge against the issue The United Nations

Human Rights Council has the capacity to make recommendations for the revision of the

aforementioned fact and will be something that the committee should focus on

Reproductive rights include in their spectrum the right to legal or safe abortion the right to

access quality reproductive healthcare the right to birth control and the right to education in

order to make well-informed reproductive choices without any coercion or violence9 Equality

and equity for men and women is of paramount importance while addressing such civil liberties

so that individuals are able to make free and informed choices in all spheres of life without any

discrimination of any kind An essential aspect of the debate is related to the right to privacy that

all individuals must be granted in the process of their decision-making

The provision of such personal human rights is notably absent in China With the stern

implementation of the one-childlsquo policy10

China has undertaken extreme measures at the cost

of innumerable human rights to curtail population growth Despite having previously ratified the

7 Article 1 of the UN Charter httpwwwunorgendocumentscharterchapter1shtml

8 Gender and reproductive rights home page httpwwwwhointreproductivehealthen

9Amnesty International USA

httpwwwamnestyusaorgStop_Violence_Against_Women_SVAWReproductive_Rightspagedoid=1108242ampn

1=3ampn2=39ampn3=1101 10

Article 18 of Population and Family Planning Law of Peoplelsquos Republic of China

httpwwwunescaporgesidpsispopulationdatabasepoplawslaw_chinachina20pop20and20family20plan

ningpdf

UNHRC 7 of 44

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in

198011

which prohibits coercion in family planning policies12

China continues to dictate the

reproductive lives of all its citizens While the Law on Population and Family Planning states

that one child is mostly merely encouraged abusive or coercive enforcement measures such as

forced abortions compulsory sterilizations and the forced insertion of intra-uterine devices after

abortions or births are common practices that are regularly documented13

Forced sterilizations are a troublingly common practice in other regions as well Perulsquos case is

important in this regard with its program of achieving a target number of sterilizations each

year sometimes numbering in the hundreds of thousands Indeed the government would

sometimes bribe women to undergo these procedures in exchange for food and medicine for

their existing children 14

A system of enhanced monitoring strategies is often regarded as one of

the solutions to the problem

Another pervasive measure employed by the state is the routine monitoring of the menstrual

cycle of women particularly those in the child-bearing age by family planning officials15

Their

employment is often contingent upon compliance with the policy The right to privacy is

severely breached in all such instances Furthermore unmarried women are not allowed to have

children and even married couples must apply for a birth permit before they can legally bear

children16

Analyzing the statelsquos penetrating involvement and interference in the private spheres

of individuals in light of existing treaties and conventions will be one of the committeelsquos tasks

Women and couples who defy the policy face fines amounting to several yearslsquo salary have their

access to social services cut and are even imprisoned in certain cases Their so-called black

childrenlsquo have no legal status in China meaning these children are not granted any rights

whatsoever and do not have access to education health or any other services provided by the

State There are an estimated 6 million undocumented children in China most of which are

believed to be girls17

The cases of Mao Hengfeng and Chen Guangchengserve as prime examples demonstrating the

inhumane nature of penalties handed out by the Chinese state to violators of the one-child

policy18

Mao a human rights activist was sentenced to two and a half years in prison after she

refused to have an abortion Chen was a blind self-taught lawyer and activist who was charged

and punished with more than four years in prison after exposing abuses in the implementation of

the one-child policy

11

httpunifem-eseasiaorgChina 12

httptreatiesunorgPagesViewDetailsaspxsrc=TREATYampmtdsg_no=IV-8ampchapter=4amplang=en 13

httpwwwrhrealitycheckorgnode7926 14

httpwwwwebsteredu~woolflmforcedsterilizationhtml 15

Page 2 httpwwwcensusgovpopulationinternationalfilesspSP73pdf 16

httpfactsanddetailscomchinaphpitemid=128ampcatid=4ampsubcatid=15 17

Ibid 18

httpwwwrhrealitycheckorgnode7926

UNHRC 8 of 44

The appalling state of affairs is further augmented by the actions the Chinese state takes to

impede the birth of conceived children It implements very strictly a program of compulsory

sterilization and forced abortions to minimize the birth of a second child in a family While

abortion itself may be a debatable and controversial topic the subset of such a controversy in the

form of a state-regulated forced abortion is excruciatingly black and white The undeniable

cruelty of forced abortions is not a deterrent strong enough for the Chinese government and the

phenomenon exists widely in China In fact the policy leads to an estimated 13 million abortions

every year with many of those ordered by local authorities Infanticide is a common practice

especially in the rural areas of the country19

Women are abducted by the state and at the cost of

their lives are forced to undergo forced and mostly unsafe abortions

In October of 2010 China forced an eight-month pregnant woman into an abortion for breaching

the one-child policy20

Government officials entered Xiao Aiyinglsquos residence hit and kicked her

in the stomach and subsequently dragged her to the hospital where doctors injected her with a

lethal drug to kill her unborn baby Xiaolsquos husband later described the incident They held her

hands behind her back and pushed her head against the wall and kicked her in the stomachlsquo The

animalistic discourse adopted by the government officials is a testimony to Chinalsquos open rebuke

for human rights More recently Womenlsquos Rights without Frontierslsquo and China Aidlsquo reported

the death of a six-month pregnant woman during a forced abortion on October 12th

201121

Jihong Ma was seized by Family Planning Officials for a forced abortion having violated the

one-child policy

While the positive environmental impact of the prevention of 300 to 400 million births may be

cited22

it must be noted the one-child policy privileges only the wealthy who can afford the

fines for additional births and have better access to contraceptives and health care while

punishing the poor who are financially crippled by the fines incurred for additional births

Moreover this policy punishes the children of the poor because they are more likely to be kept

hidden from the state and thus will not have access to health care and the education they need to

climb out of poverty In this way social disparity is further perpetuated within the existing

framework

Another adverse byproduct of Chinas 30-year-old family planning policy is the gender

imbalance that is now manifested most clearly among those of marrying age The British

Medical Journal claimed that in 2005 there were 32 million more males than females (under the

age of 20) in China23

Even though China banned prenatal sex screening in 199424

illegal

ultrasound tests allow prospective parents to choose the gender they prefer for their only child

19

httpwwwdailymailcouknewsarticle-1322601China-forces-woman-abortion-EIGHT-months-breaching-

child-policyhtml 20

Ibid 21

httpwwwwomensrightswithoutfrontiersorgblogp=429 22

―Has Chinas one-child policy worked httpnewsbbccouk2hiasia-pacific7000931stm 23

British Medical Journal BMJ 2009 338b1211 httpwwwbmjcomcontent338bmjb1211full 24

―A Brief History of Chinas One-Child Policy httpwwwtimecomtimeworldarticle08599191286100html

UNHRC 9 of 44

creating a massive imbalance This imbalance will lead to drastic results in the next few years an

implication the committee needs to take in account when establishing a framework for

responding to the issue

The Human Rights Council conducted a Universal Periodic Review of China in 200925

to much

international consternation and surprise the report lacked substantial evidence implicating

China and was instead found to be extremely vague The role of the United Nations in defining

and drawing attention to the issue is of key significance and the Human Rights Council must

make recommendations on how the United Nations can enhance its capacity in laying the

foundations for the case The Council can also make recommendations regarding the changes

that can be brought about in the conduct of the Review and otherwise in order to be able to

contain the issue with lesser difficulty

The committee will be called upon to review reproductive rights in detail including the implicit

and explicit consequences on the people of China Access to reproductive healthcare is a

problem the world over and is often consciously violated by states Is there a way to control

these violations perhaps through devising enhanced monitoring strategies

The Case of Internet Censorship in China and the Right to Free Speech

Everyone has the right to freedom of opinion and expression this right includes freedom to hold

opinions without interference and to seek receive and impart information and ideas through any

media and regardless of frontiers26

- Article 19 Universal Declaration of Human Rights

Everyone shall have the right to freedom of expression this right shall include freedom to seek

receive and impart information and ideas of all kinds regardless of frontiers either orally in

writing or in print in the form of art or through any other media of his choice 27

- Article 19 (2) International Covenant on Civil and

Political Rights

The Peoplelsquos Republic of China along with being the most populous region of the world is also

home to the worldlsquos largest collection of internet users According to Xinhua Chinalsquos state-run

English news agency Chinalsquos internet user ship exceeded 500 million users as of September

201128

China is also the worldlsquos largest media market However despite these impressive

statistics it is both interesting and disturbing to note that the Republic is also remarkable for its

25

httplibohchrorgHRBodiesUPRDocumentsSession4CNA_HRC_WG6_4_CHN_3_Epdf 26

httpwwwohchrorgENUDHRDocumentsUDHR_Translationsengpdf The Universal Declaration of Human

Rights 27

httpwww2ohchrorgenglishlawpdfccprpdf The International Covenant on Civil and Political Rights 28

httpnewsxinhuanetcomenglish2010china2011-0929c_131167919htm

UNHRC 10 of 44

censorship history About a dozen government bodies control internet usage including the

Ministry of Public Security29

It has been noted that while the Chinese advertising industry is

booming this freedom does not extend to editorial content of newspapers30

This phenomenon of

Chinese censorship has been labeled in the mainstream global media as the Great Firewall of

China The Firewall serves to filter both the information coming into China as well as

information generated within the nation It is beyond being a clever pun a matter of concern for

the committee because of its repressive characteristic The State imposes such extreme

restrictions of freedom of information under the premise of protection of its nationalistic

interests However its negative connotation is much obvious and its resemblance to Orwelllsquos

Ministry of Truth and the notion of thought control is uncanny The Peoplelsquos Republic has signed

(not ratified) the International Covenant on Civil and Political Rights The committee can look

into the reasons behind this as well as assess current global membership to the covenant

Chinalsquos Internet censorship is centered on the control of political thought The Measures on the

Administration of Internet Information Services and the Provisions on the Administration of

Internet News and Information Services are the two main instruments used to do so31

Section 19

of the latter deserves special attention and casts its scope to prohibit activities that disrupt

―national policies on religion propagating evil cults and feudal superstitions jeopardize ―the

security of the nation harm ―integrity of the nationlsquos unity or ―the honor or the interests of the

nation among other things32

Regulations are so stringent that in 2008 only eight websites out

of a total of 430000 in Guangdong Province ndash Chinalsquos most populous region -- were able to

obtain news publication qualifications permits33

The Internet news and information services entities engaging in Internet news and information

services shall abide by the Constitution laws and regulations by persisting in providing service

for the people and serving socialism and guiding public opinion to protect the interests of the

nation and the public

- Article 3 Provisions on the Administration of Internet News and Information Services

The national report submitted by China to the Working Group for the Universal Periodic Review

in 2009 exhibited the governmentlsquos opinion that ―with such easy fast and diverse ways of

gaining access to information and expressing opinion including criticism of the Government

Chinese citizens are enjoying an entirely new lifestyle34

According to a white paper published

29

httpwwwhrworgreports2006china08063htm_ftnref28 30

httpnewsbbccouk2hiafricacountry_profiles1287798stm 31

httpwwwhrichinaorgcrfarticle3244 32

httpwwwchinaitlaworgp1=printampp2=051006175116 Provisions on the Administration of Internet News and

Information Services

Please peruse the following httpwwwhrworgreports2006china08063htm for commentary on the Provisions 33

Ibid 34

httplibohchrorgHRBodiesUPRDocumentsSession4CNA_HRC_WG6_4_CHN_1_Epdf

UNHRC 11 of 44

in 2008 by the Information Office of the State Council the internet is a ―crystallization of human

wisdom and ―Chinese citizens fully enjoy freedom of speech on the internet 35

Chinalsquos policies have relevance beyond

their contravention of what may seem to be

abstract principles China has jailed the

largest number of internet dissidents the

world over The case of Liu Shaokun for

example is a notable one He was a

teacher in Sichuan province which had

been hit in 2008 by a ravaging earthquake

around the time of the Summer Olympics

in Beijing China had been praised for

allowing reporters to openly cover the

earthquake Much of this openness however was part of a bid to soothe the international

community and project Beijinglsquos image as being the perfect venue for the Olympics Shaokun

however was sentenced to a year of labor for posting photographs of schools affected by the

earthquake He is among countless others who have been silenced36

When the Arab Spring flowered over the Middle East China cracked down on many social

networking sites to curb pro-democracy sentiments Amongst these was LinkedIn blocked over

the fact that one of its users had mentioned the possibility of a ―Jasmine Revolution in China37

The government blocks discussions about the Dalai Lama the Tiananmen Square protests and

the Falun Gong spiritual movement among other things In April of 2007 the Chinese version of

MySpace launched but lacked discussion forums centered on the aforementioned topics among

others including Taiwanlsquos independence In 2010 Google considered withdrawing its services

from China after a spur of cyber-attacks on email accounts of human rights activists 38

Google

and the government reached a deal whereby Google operated by Chinese guidelines within

mainland China However Google has a non-censored operation running in Hong Kong to

which it started routing customers in 2010 when it had concerns over Google accounts being

hacked by authorities It is testament to Chinese control that companies such as Google are

forced to enter the internet market on its terms Other instances of well renowned internet

websites being blocked or affronted include Twitter being banned during the 20th

anniversary of

the Tiananmen killings

The Committee to Protect Journalists ranks China as one of the worst internet censors The

Chinese government has been alleged of carrying out ―spear-phishing whereby spying software

disguised as legitimate emails is installed on computers that belong invariably to journalists

35

httpchinaorgcngovernmentwhitepapernode_7093508htm 36

httpcpjorgreports201012cpj-journalist-prison-census-iran-china-highest-14-yearsphp 37

httpwwwbbccouknewstechnology-12586462 38

httpnewsbbccouk2hi8460129stm Please look at this link for a timeline of Chinalsquos internet history

UNHRC 12 of 44

Victims included those writing about Liu Xiaobo the imprisoned human rights defender who

received the Nobel Peace Prize in 201039

According to statistics over 80 of Chinas netizens rely mainly on the Internet for news 40

With this state of affairs and increasing dependence the world over on the internet as a major

source of information discussing information monopolies is crucial To isolate a country of over

a billion and deny it access to information in the age of technology may not seem a palpable

physical or otherwise contravention of human rights however its consequences are

tremendous While one may think that media censorship is restricted to dictatorial regimes the

case of China serves to refute that line of thought Media censorship is prevalent even in

countries as varied as Indonesia India Mexico and Russia ndash all of whom rank relatively low on

the Press Freedom Index41

Looking at instances worldwide and the justifications given for

restricting rights will be a useful direction to take while researching

The following website is a useful tool to check the status of websites in China

httpwwwgreatfirewallofchinaorg

Political Prisoners in China and Illegal Detention

Political prisoners are those whose imprisonment is carried out arbitrarily on contestable and

controversial grounds Governments detain certain individuals on the basis of allegedly valid

grounds which are not always disclosed or declared Many detainees charge existence of ulterior

motives or extrajudicial reasons on part of the state for their detention The phenomenon of

political prisoners is often associated with closed regimes such as Burma and the DPRK

However the Peoplelsquos Republic of China too does not escape scrutiny when the topic of political

prisoners is at hand The phenomenon of political prisoners resonates so loudly in the

international spheres particularly because governments deny the existence of political prisoners

they claim that all detainees are lawfully held under criminal law The unfair detainment of

persons or the capture of people to serve the interests of a government contravenes many human

rights including freedom of expression association and assembly Indeed a countrylsquos political

imprisonment record is one of the crucial indicators of its human rights situation

Amnesty International views political prisoners as prisoners of conscience These are more

specifically ―people who have been jailed because of their political religious or other

conscientiously-held beliefs ethnic origin sex color language national or social origin

economic status birth sexual orientation or other status42

39

httpwwwcpjorgreports201105the-10-tools-of-online-oppressorsphp 40

httpchinaorgcngovernmentwhitepapernode_7093508htm 41

httpenrsforgpress-freedom-index-20101034html 42

httpwwwamnestyusaorgour-workissuesprisoners-and-people-at-riskprisoners-of-conscience

UNHRC 13 of 44

According to the (US) Congressional Executive Commission on China over 5000 cases of

politically or religiously motivated imprisonments have been made It has detailed documented

information on the status of 1452 of these prisoners and

notes that its information is far from complete and that the

true story of Chinalsquos political prisoners remains unknown 43

The plight of political prisoners in China is speculated upon

by various international organizations Among these is the

Human Rights Watch which has gone as far as labeling the

locations for holding political prisoners ―black jails and

―alleyways in hell Officially though the Chinese

government denies the existence of political prisoners Subsequent to Chinalsquos Universal Periodic

Review an outcome report was published which came under fire from various sides The Human

Rights Watch called the substance of the report to be ―manifestly so far removed from reality

that [it] would immediately discredit anybody that adopted them in a report 44

In the report of

the UNHRC Working Group subsequent to Chinalsquos UPR it is stated that the Chinese

government does not use ―state secrets to suppress human rights defenders 45

It is precisely this

situation that our simulation wishes to remedy discussion should be fact based

The ground realities are different In 2010 Chinese activist and human rights defender Mr Liu

Xiaobo was awarded the Nobel Peace Prize He was jailed by Chinese authorities for

distributing his ―Charter 08 a document that called for freedom of expression and of assembly

among other things The government incarcerated him for an 11 year time-period on the charge

of subversion Subsequent to the prize the Chinese government came down hard on other human

rights activists Indeed those celebrating the awarding of the prize to Mr Xiaobo were arrested

arbitrarily While distributing fliers celebrating the win many were imprisoned on the grounds of

―inciting subversion of state power The Report of the Special Rapporteur on the situation of

human rights defenders published in 2011 makes mention of these facts46

The Chinese

government labeled the award an ―obscenity It is vague allegations such as these that allow

governments to thwart dissidents As expected though according to the report of the HRC

Working Group No individual or press has been penalized for voicing their opinions or

views47

When discussing China and political prisoners it is important to mention the Falun Gong

movement It is a spiritual variant of Buddhism and originated in China on the basis of the

teachings of its founder Li Hongzhi The movement was supported within the Chinese

43

httpwwwceccgovpagesvictims20101010_PPD_AR10pdfPHPSESSID=705596c0e91f35e392e6f0ecbb78d6

7c 44

httpwwwhrworgennews20090610human-rights-watch-statement-upr-outcome-report-china 45

httpdaccess-dds-nyunorgdocUNDOCGENG0916299PDFG0916299pdfOpenElement 46

httpwww2ohchrorgenglishissuesdefendersdocsAHRC1644Add1_EFSonlypdf Page 63 47

httpdaccess-dds-nyunorgdocUNDOCGENG0916299PDFG0916299pdfOpenElement Para 71

UNHRC 14 of 44

officialdom initially However Falun Gonglsquos popularity within the masses as well as its

independence from the state and its spiritual teachings was soon perceived as a threat to the

government By the late 1990lsquos the Chinese government cracked down on the movement and

labeled it as a heretical organization Chinese legislation uses the expression ―Xiejiao zuzhi to

refer to a wide range of sectarian or unorthodox religious groups which do not meet official

approval The Falun Gong movement is included in this list48

The Falun Gong followers are the

worldlsquos largest group of prisoners of conscience The PRC often picks up practitioners and

accuses them of ―using an evil cult to destroy implementation of the law 49

China with its strict non-religious government did not take kindly to this new movement that

had garnered millions of followers both within China and internationally between 1992 and the

crackdown in 1999 Today Falun Gong is practiced freely in more than 70 countries around the

world with clubs and associations existing in a range of settings50

Beginning at the turn of the

millennium the authorities started to ban access to websites that contained material about the

movement Indeed a search on the movement on Chinalsquos Xinhua News Agency website will

even today yield nothing (It may be an interesting experiment for delegates to conduct) Those

who reported the initial crackdown were ―followed detained interrogated and threatened

according to a letter written in 1999 by The Foreign Correspondents Club (FCC) of China51

The Falun Gong movementlsquos official website deals with its persecution thus The complex

rationale behind the persecution can be broken into four elements a paranoid dictators fear of

Falun Gongs meteoric growth and soaring popularity that same dictators intense jealousy of

Falun Dafas popularity the inherent conflict between the communist regimes savage political

ideology and its polar oppositemdashFalun Dafas principles of Truthfulness Benevolence

Forbearance and the very nature of communism which to sustain itself requires periodically

labeling a small segment of the population as the class enemy to struggle against52

The Chinese crackdown on Falun Gong practitioners involved a ban on practicing it by the

Chinese Communist Party whose members as aforementioned were interestingly initially

adherents to the movement in significant numbers Indeed the party was divided from within

over their stance on the movement The government formulated an ―anti-cult law a few months

after issuing a warrant for the founderlsquos arrest ―During the first two years of the crackdown

between 150 and 450 group leaders and other members were tried for various crimes and

sentenced to prison terms of up to 18-20 years53

To this day ―central leaders turn a blind eye to

48

httpwwwamnestyorgenlibraryassetASA170112000en7a361a8e-df70-11dd-acaa-

7d9091d4638fasa170112000enhtml 49

httpwww2ohchrorgenglishissuesdefendersdocsAHRC1644Add1_EFSonlypdf 50

httpwwwfaluninfonettopic22 51

httpwwwamnestyorgenlibraryassetASA170112000en7a361a8e-df70-11dd-acaa-

7d9091d4638fasa170112000enhtml 52

httpwwwfalundafaorgengfaqshtmlpersecution 53

httpfpcstategovdocumentsorganization67820pdf Page 4

UNHRC 15 of 44

local methods of suppression against unrepentant practitioners including the reported use of

torture54

Also worth noting is the fact that Chinalsquos judicial system has been alleged to be anything but

conducive to providing justice to those using the system Indeed it is a repressive tool used by

the government to silence dissent China with its vast land mass and various provinces and

municipalities must work hard to keep its Centre strong Scores of individuals who are more

obscure than human rights activists and such are imprisoned by the government while ironically

seeking justice It has long been the custom for people of the countryside to seek justice in

Beijing if they felt that their local authorities had treated them unfairly However modern China

has not taken kindly to this tradition Local authorities are evaluated on the basis of the number

of complaints the Centre receives about them Thus they have a vested interest in thwarting the

reports of any complaints about them to Beijing Those who complain are whisked off to black

jails where ―detainees are denied access to legal counsel and in most cases contact with family

and friends They ―are kept under constant surveillance and subject to often arbitrary physical

and psychological abuse55

Chinalsquos record with regard to political prisoners and its tradition of suppressing dissent are

exacerbated by the sheer scale on which dissent is thwarted The aspect of potential torture of

prisoners further complicates the issue It is troubling that the issue of Chinese political prisoners

only gained international prominence with the case of Mr Liu Xiaobo It is not the only nation in

the world to adopt such strict policies in order to further its own ideology and the committee will

do well to ruminate upon how this tradition can be discontinued so as to allow people their

essential political freedoms

The Infringement of Rights in the Conflict with Tibet

Despite the furor that has been inconsistently directed towards its human rights record China

continues to impose tightening restrictions on rights of expression association and assembly

The Chinese government carries on devising social and economic changes that retain its firm

authority over its citizens which in turn enables a host of human rights violations In the context

of Tibet China has failed to address the grievances of the people there who have been made

victims of social discrimination and have unequal access to opportunities Scores of Tibetans are

marginalized and detained for their religious inclinations which are further suppressed by the

imposition of intense patriotic educationlsquo campaigns whereby socialism is furthered and all sorts

of religious or individualistic tendencies are thwarted

54

Ibid Page 5 55

httpwwwhrworgreports20091112alleyway-hell-0 Page 4

UNHRC 16 of 44

Despite its totalitarian approach China refuses to accept responsibility for the issue Instead it

blames westernlsquo forces for trying to instigate separatism56

The indifference on the part of

China with particular regard to Tibet is apparent with Chinese authoritieslsquo continuous rejection

of ―inconvenient requests by UN human rights experts for visits to the Tibet Autonomous

Region57

During 1912 and 1951 Tibet underwent a period of de facto independence58

While it was still

territorially a part of China it enjoyed relative freedom in its political discourse Tibetan

autonomy was confined within the context of Chinese suzerainty and should not be interpreted

as unrestrained political independence Since 1951 however the Chinese government has taken

steps to ensure its absolute and undeniable dominance over Tibet from which emanates the strife

under discussion Gross violations of human rights have taken place in China administered by

officials with the purpose of cultivating consent with regard to its control over the region

Suppression has led to the inevitable extensive discontent in Tibet a fury which was unleashed

in 2008 The Tibetan unrest of 2008 was a series of protests and demonstrations - not merely in

the Tibet Autonomous Region but elsewhere as well - that later transformed into rioting burning

looting and even killing59

The rioters set fire to state vehicles and clashed violently with the

police installed in the region The crackdown of Chinese authorities in response to the riots was

severe resulting in deaths on both sides and mass imprisonment by state authorities The degree

to which human rights were violated and abused during this crackdown cannot be overstated

The Chinese also revoked the freedom of sharing of information and imposed a ban on the entry

of media officials in the region to contain

information about the unrest and play down

protests60

A Tibetan Government in Exile has existed in India

since 1959 established by the 14th

Dalai Lama61

This Central Tibetan Administration considers the

issue as an illegitimate military occupation by the

Chinese state The Administration works with the

agendas of restoration of freedom in Tibet and rehabilitation of Tibetan refugees

Historical facts refute such a fallacy however The simple reality that the installation of the 14th Dalai Lama

needed the approval of the national government is sufficient proof that Tibet did not possess any independent power

during that period ndash (httpwwwchinaorgcne-whitetibet9-2htm)

56

httpwwwunhcrorgrefworldcountryAMNESTYCHN49b8dfc11a0html 57

Ibid 58

Grunfeld A Tom Reassessing Tibet Policy 2000 59

httpwwwnytimescom20080316worldasia16iht-tibet111134870html 60

Watts Jonathan Branigan Tania (March 18 2008) Tension rises as armed police mass in capital The

Guardian (London) Retrieved November 1 2011 61

httpwwwtibetnetenindexphpid=14

UNHRC 17 of 44

The censured freedom of expression is one of the multiple infringements on rights that are

imposed by China on Tibet Tibetans are denied the basic right to articulate their views through

political discourse Human rights activists advocate the freedom of speech for Tibetans under the

existing and future political arrangements Religious and political figures in Tibet are placed

under house arrest limiting their freedom of movement (in contradiction to article 13 of the

Universal Declaration of Human Rights)62

As was highlighted during the unrest in 2008 China

has often stripped the Tibetan population of its fundamental rights to associate and assemble In

2000 nine Tibetan prisoners in Kandze were charged for participating in a peaceful protest to

five-year prison terms in October 1999 (which were later increased to ten-year terms)63

This example leads us to another crop of abuse conducted overtly by Chinese authorities

arbitrary detention Article 9 of the Universal Declaration of Human Rights reads ―No one shall

be subjected to arbitrary arrest detention or exile64

Chinese law however permits authorities

to detain persons without formally arresting or charging them and persons may be sentenced

administratively to up to 3 years in reeducation-through-labor camps and other similar facilities

without a trial

Chinese authorities have been unresponsive to concerns expressed by the United Nations

Working Group on Arbitrary Detention No counter-explanation was given either over the case

of three Tibetans who had their sentences extended for staging a peaceful political protest during

the Working Groups visit to Drapchi in October 1997 despite international pressure65

Infinite

examples of arbitrary arrests and detentions exist in China international authorities have called

on China to cease this practice and release such detainees immediately absent evidence that they

have engaged in criminal acts No state can or should be able to hold anyone for engaging in

peaceful political activity All humans

should be granted internationally recognized

due-process protections which includes the

right to be informed of the charges leveled

against them66

The question of whether

these detainees are given an impartial trial if

one at all is not even raised

In addition to the arrests carried out in

violation of international law there are

grave evidences of abuses during detention

62

httpwwwhrworgnews20000612human-rights-violations-tibet 63

Ibid 64

httpwwwunorgendocumentsudhr 65

httpwwwhrworgnews20000612human-rights-violations-tibet 66

httpwwwhrworgnews20000612human-rights-violations-tibet

UNHRC 18 of 44

Incidences of beatings at time of arrest and torture (including the administration of electric

shocks and deprivation of food and medical treatment)67

during custody are widely reported

These are not isolated cases rather the product of a holistic policy of dealing with political

dissidents In one notable incident in May 1998 political prisoners in Drapchi staged major

protests to coincide with a visit from a European Union delegation The protests were non-

violent but the authorities reaction was severe several protestors were shot at and one monk

Lobsang Gelek subsequently died68

The Convention Against Torture (CAT ratified by China in 1988) requires the state to prevent

torture and punish those in violation of the law China has not amended its own laws to comply

with even the first article of CAT69

Such practices explicitly stand in contempt of Article 5 of

the Universal Declaration of Rights which censures the use of torture or cruel treatment as

punishment Dr Manfred Nowak the UN Special Rapporteur on Torture stated that ―he was

struck by the strictness of prison discipline and a palpable level of fear and self-censorship when

talking to detainees following his brief assessment of Chinese and Tibetan prisons in 200570

The committee will be looked upon to review ways in which the situation can be monitored more

carefully and what responses if any can be cultivated to impede similar future actions by

China

The continued violations of religious freedom and implementation of policies designed to

diminish religious practices by the State to serve its political needs is a cause of concern Again

referring to the Universal Declaration of Human Rights Article 18 reads ―Everyone has the right

to freedom ofhellipreligion this right includes freedomhellipto manifest his religion or belief in

teaching practice worship and observance71

The policies implemented by Chinese authorities

through use of coercion violent repression and imprisonment impinge upon the freedom of

Tibetans to practice their religion freely China has also strictly enforced re-education programs

for dissident factors within the state The program is aimed at ―combating separatism protecting

stability and promoting development and is intended to reform the political ideology of people

who refuse to accept state control of what they perceive as vital aspects of their religious lives

and beliefs The committee will be expected to deliberate upon the protection of religious

freedom and practices of individuals as well as the validity of these re-education programs in

light of human rights and liberties

Tibet is not the only region where political tensions surrounding autonomy run high The

Kosovo-Serbian conflict is pertinent to recall The Republic of Kosovo declared itself to be an

independent entity on February 17 2008 As of 11 October 2011 85 UN states recognize the

independence of Kosovo However Serbia maintains that Kosovo is a UN governed entity under

67

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 68

httpwwwfreetibetorgabouttorture 69

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 70

Ibid 71

httpwwwunorgendocumentsudhr

UNHRC 19 of 44

its sovereignty Russia and China are among those who do not recognize the Republic while the

USA UK and France have recognized Kosovolsquos declaration of independence This highlights the

rift between the United Nations Security Council over the issue The case of Tibet is all the more

important in light of the fact that many such pockets exist in the world struggling for self-

determination

Media Links

httpwwwfreetibetorgnewsmedia2008-protests-summary

httpwwwguardiancoukworldgallery2008mar19tibetchinapicture=333178281ampindex=7

Chinarsquos Violation of Ethnic Minority Rights

One of the greatest blemishes on Chinalsquos human rights record is in the area of ethnic minorities

and the extent to which China protects ethnic minority rights On paper Chinalsquos policies are

based on ethnic equality and regional ethnic autonomy Ethnic minorities are supposed to be

benefitting from preferential policies in the political economic cultural and educational spheres

However the ground realities are infinitely different Questions have been raised over the extent

to which the government fairly provides services to these minorities and allocates resources

equally to them The Chinese government is seen to largely prefer its Han majority The

minorities claim they are exploited for their resources and in turn not even provided with the

same level of social services as the Han people China is an atheistic government and the fact

that many ethnicities garner their identity in major part from their religious affiliation leads to a

precarious situation The Mongols Tibetans and Uighurs all come to mind when discussing the

issue of China and ethnic minority rights

―Everyone is entitled to all the rights and freedoms set forth in this Declaration without

distinction of any kind such as race colour sex language religion political or other opinion

national or social origin property birth or other status Furthermore no distinction shall be

made on the basis of the political jurisdictional or international status of the country or

territory to which a person belongs whether it be independent trust non-self-governing or

under any other limitation of sovereignty

- Article 2 Universal Declaration of Human Rights

The International Convention on the Elimination of Racial Discrimination defines racial

discrimination as any distinction exclusion restriction or preference based on race colour

descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the

recognition enjoyment or exercise on an equal footing of human rights and fundamental

UNHRC 20 of 44

freedoms in the political economic social cultural or any other field of public life72

It is due to

this that the international community has adopted the norm of subsuming ethnicity under the

terminology of race

―The Peoples Republic of China is a united multi-ethnic country So far 56 ethnic groups have

been identified and recognized by the central government The population of various ethnic

groups differs greatly While the Han ethnic group has the largest population and that of the

other 55 ethnic groups is relatively small so they are customarily referred to as ethnic

minoritieslsquo According to the fifth national census conducted in 2000 the population of all the

55 ethnic minority groups totaled 10449 million accounting for 841 percent of the total

population of China73

Chinas official 55 minorities are located primarily in the south west

and north of China Only Tibet and Xinjiang have a majority population of official minorities

while all other provinces municipalities and regions of China have a Han majority

One of Chinalsquos autonomous regions is the Xinjiang Uighur Autonomous Region (XUAR)

located in western China The area is vast accounting for one sixth of Chinalsquos land and houses

around 13 major ethnicities including the Uighurs who are a predominantly Muslim people with

origins in Central Asia The Uighurs have had strained ties with the state and have often resisted

Chinese authority74

In turn the Chinese government has reacted sometimes violently against

restless factions in the region One of the most passive aggressive forms of response on the part

of the Peoplelsquos Republic has been the encouragement of the migration of the Han people ndash

Chinalsquos ethnic majority ndash to the XUAR75

Around 90 of Xinjiangs population comprised of

Uighurs in 1949 now it is estimated that Uighurs make up only about 45 of the population76

The policies in Xinjiang are said to be designed to ―promote economic development not

demographic change In reality though the influx of migrants has amplified Uighur discontent

as Han and Uighurs compete over limited jobs and natural resources77

The United Stateslsquo

Congressional-Executive Commission on China reported that in 2006 the XPCC (Xinjiang

Production and Construction Core) reserved approximately 800 of 840 civil servant job openings

for Han Chinese78

One of the causes of the Han monopoly in the employment sector is the

linguistic advantage afforded to them and perpetuated by the education system As part of its

efforts to implicitly impose a unified culture the language policy was altered by the state with

an increased focus on use of Mandarin in schools at the expense of the local languages

Methods of education special to the ethnic peoples of the XUAR including the Muslim Uighurs

are suppressed For example a campaign by the PRC in 2001 targeted religious teachers and

72

httpwww2ohchrorgenglishlawcerdhtm 73

httpenglishgovcnofficial2005-0728content_18127htm 74

httpwwwcfrorgchinaeast-turkestan-islamic-movement-etimp9179 75

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p8 76

httpnewsbbccouk2hiasia-pacific3330803stm 77

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p4 78

httpwwwcolumbiaeducunewsclips20080801UighursTWPOSTpdf

UNHRC 21 of 44

endeavored to sever ties between mosques and groups involved in allegedly ―separatist

activities Around 8000 imams were required to undergo ―political reeducation in this regard

and become ―patriotic religious personalities Ethnic minorities are educated in ways that do not

allow them to learn their own languages or practice their own religion In 2001 for example a

Muslim girl was expelled from school for praying 79

Moreover in an attempt to further its socialist agenda and bind ethnic minorities together

minority cultural activities are often hindered In its place nationalistic values are given a

premium and integrated into society so as to tie the entire country in a unified Chinese foldlsquo

Resultantly an asymmetry with regards to the provision of services and protection of cultural

identity can be found in almost every ethnic minority region in the country The repression

against minorities has wider implications on the human rights situation for all This leads to

creation of a vindictive attitude among the minorities not only against the government but also

the Han majority

In July 2009 this attitude manifested itself in

the form of severe riots between the Han and

Uighur communities in Xinjianglsquos capital city

Urumqi Ethnic tensions elevated to the point

that police involvement was made necessary

According to Chinese state media at least 150

people were killed and more than 800 were

injured The riots were reportedly sparked by a

Uighur protest over the ethnically motivated

killing of two Uighur workers in the southern

province of Guangdong

On the topic of allegations of separatism it is interesting to note that post 911 it has been noted

that the Chinese government has used concerns about terrorism as a method for suppressing

ethnic activity This is possible through the characterization of certain ethnicities as having

fundamental leanings The Muslim Uighurs fell under fire for this very reason after the

September 2001 attacks

One of the ways that the Chinese government with its Han leanings has asserted its presence in

the region is through the smokescreen of the XPCC The Peoplelsquos Liberation Army and the

XPCC are present in the region per the government to ―consolidate border defense accelerate

79

wwwminorityrightsorgdownloadphpid=29 Page 30

UNHRC 22 of 44

Xinjianglsquos development and reduce the economic burden on local governments and the local

people of all ethnic groups80

The heavy militarization of ethnic minority

regions also enables the Chinese government

to quickly respond to skirmishes between the

minorities and the Han For example clashes

between the Uighurs and the Han in the

XUAR are quickly clamped down upon The

response by Chinese authorities always

focuses on the minority groups in the region

The typical response includes a period of

strike hardlsquo security measures during which the minorities are subjected to police patrols of

crowded areas identity checks street searches increased criminal investigations and accelerated

trials The measures also include mandatory political indoctrination classes for the Uighur

population Swift Chinese response to ethnic dissidence precludes the possibility of trying

protestersrioters under due process This phenomenon also contributes to the controversy of

China and its policy of arbitrary imprisonment

Essential to any countrylsquos social progress is the protection and provision of the basic rights to all

its citizens For a country like China which has a significant standing in the international

community the degree to which human rights are upheld comes under added scrutiny Minorities

need to be guaranteed provision of not only fundamental rights but additional ones that grant

them equal opportunities

Recent Developments

3 November 2010 UN Secretary General pushes China on human rights

Ban Ki-moon the United Nations secretary general has called on China to respect human rights

after critics accused him of dodging the issue on a trip to Beijing The UN secretary general met

Hu Jintao the Chinese president but failed to challenge Mr Hu on the imprisonment of Liu

Xiaobo the democracy activist who was awarded this years Nobel Peace prize and raise the

issue of human rights81

80

httpwwwchinaorgcne-white200305269htm 81

httpwwwtelegraphcouknewsworldnewsasiachina8107148UN-Secretary-General-pushes-China-on-human-

rightshtml

UNHRC 23 of 44

5 November 2011 Yeqing Ji from Shanghai China will most likely not be able to have children

after she said two forced abortions physically impaired her uterus82

8 September 2011 The Chinese government has renewed Googlelsquos license to allow it to

continue operating its local website in the country83

13 November 2011 Seven months ago

Chinese police detained the countrylsquos most prominent artist Ai Weiwei at the airport and drove

him to a hidden location It was the beginning of what is to be a two-and-a-half month nightmare

for the architect and sculptor who is also a former darling of the Communist Party who later

turned into an outspoken government critic Ai was held on vague charges of economic crimes

was kept in isolation and subjected to Kafka-esque interrogations84

April 19 2011 Amnesty International a 21-year-old monk Phuntsog set himself on fire in an

apparent anti-government protest in March 2011 Instead of putting out the flames Chinese

police beat the young monk creating huge resentment in the monastery85

At least 11 ethnic

Tibetans have been detained for protesting against the event and against government policies

They are at risk of torture and other ill-treatment86

29 May 2011 300 Tibetan monks detained in Kirti monastery by Chinese security forces87

15 September 2011 Chinese Uighurs economic fears

Amid ethnic tensions minority regards modernization plans in Xinjiang as favoring Han Chinese

migrants88

20 November 2011 Another of Chinalsquos minorities the Hui Muslims in Ningxia do not feel

stigmatized

―There is an important reason why Hui and Han Chinese get along with each other Unlike

Muslims of the other ethnic minorities like Uighur Kazakh Kyrgyz and Tajik the Hui Muslims

speak Mandarin just like the Hans89

82

httpabcnewsgocomBusinesswoman-china-forced-abortions-leaves-unable-

childrenstoryid=14880884Tsia7LIk6so 83

httpwwwbbccouknewsbusiness-14832392 84

httpwwwthedailybeastcomnewsweek20111113ai-weiwei-speaks-out-on-his-detentionhtml 85

httphradvorgaggregatorsources10 86

httpwwwamnestyorgenlibraryassetASA170212011end75f7611-be66-4d5a-9391-

c80c43501d56asa170212011enhtml 87

httphumanrightshouseorgArticles16503html 88

httpwwwaljazeeracomvideoasia20110920119158016969449html 89

httpwwwtodayszamancomnews-263322-chinas-hui-muslims-do-not-feel-stigmatizedhtml

UNHRC 24 of 44

Conclusion

The United Nations Human Rights Council at LUMUN 2012 will be looked upon to provide a

framework for the resolution of these issues in a universal context The scope of the issues

should be expanded and applied to countries other than China The committee will have to make

recommendations which have universal application and resolve all aspects of the issue

comprehensively For any queries related to the study guide please do contact either (or both)

the committee directors at the given addresses

UNHRC 25 of 44

Topic Area B Abolishing the Death Penalty

Introduction to the Topic Area

The death penalty is formally defined as the execution of an offender sentenced to death after

conviction by a court of law of a criminal offenselsquo90

The concept of a capital crime is subjective

and states have made use of this practice in response to multiple forms of crime The use of the

death penalty has produced much controversy with regard to its apparent violation of

fundamental human rights as delineated in the Universal Declaration of Human Rights and

subsequent human rights charters and treaties It is asserted that the use of death penalty is in

contravention to the peopleslsquo right to life promised to every individual under Article 3 of the

Declaration91

Moreover Article 2 of the Charter of Fundamental Rights of the European Union

lucidly bars the imposition of death penalty as a form of punishment92

Arguments against the

use of death penalty are also made on the grounds of inhumane methods which are employed to

see out the process Historically multiple methods have been used which include death by

hanging severing of the head lethal injection shooting and electrocution93

94

As a response states have made keen efforts to abolish

the death penalty particularly in the last two decades as

can be interpreted from the graph on the right which

represents the number of states that have abolished the

death penalty Countries belonging to the European

region with the exclusion of Russia and Belarus have

sought to revoke the use of the practice The death

penalty is most commonly seen to be a formal practice

in most of the developing countries The trend is

apparent in Latin America Africa and Asia

96 countries have formally abandoned the use of death penalty 58 countries allow the use95

Other states have abolished the penalty in practice but the laws remain in place for the

imposition of the penalty as a response to certain crimes The imposition of the death penalty has

90

httpwwwbritannicacomEBcheckedtopic93902capital-punishment 91

httpwwwunorgendocumentsudhr 92

httpwwweuroparleuropaeucharterpdftext_enpdf 93

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffle

re-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 94

httpwwwdeathpenaltyinfoorgmethods-execution 95

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf

Figure 1 (Drag to enlarge)

UNHRC 26 of 44

seen a decline over the recent years with a fall in the number of executions that take place

annually It would however be incorrect to assume that the practice is not prevalent or widely in

effect Amnesty International reported that at least 2024 new death sentences were imposed in 67

countries in 2010 Moreover there were at least 17833 people sentenced to death worldwide at

the end of 201096

Again these are minimum figures which are the safest that can be inferred

from the given research There were 527 known executions carried out in 2010 globally97

This

figure however does not include the number of executions that took place in China where

analysts believe that more than a thousand people were put to death in the past year

The statistics represent the number of people executed through capital punishment One way to

formally define capital punishment is to regard it as the state sanctioned killing of an individual

through a judicial process as a punishment for a crime (defined as a capital crime by the state)98

Capital punishment is the most obvious and prevalent manifestation of the death penalty It is

often perceived as a statelsquos right in order to preserve law and order against any individual who

engages in serious crimes that threaten other individuals or the state Those who advocate against

the use of capital punishment label it as a symptom of a culture of violence not a solution to

itlsquo99

The controversy surrounding the topic is based on the legal ethical and moral acceptability

of the statelsquos right to an individuallsquos life The debate entails several social and economic factors

some of which will be reviewed in closer detail in the relevant section of this guide

One of the most striking aspects related to the issue is the imposition of the capital punishment

on juveniles The sentencing of juveniles to death is in clear breach of international law The

morality and validity of such a practice is often called into question and has been put under

relentless scrutiny despite all of which the practice is still carried out in a number of countries

Historically the United States China and Iran have the worst records relating to juvenile death

sentences100

The study guide also includes a separate section for the case of juveniles in which

the legal and social aspects of the problems are detailed

As stated states have made use of the death penalty to punish crimes of varying natures The use

of the death penalty is reserved for only the most seriouslsquo crimes as put forth in international

law101

The notion of a capital crime however is a subjective one states that have doled out

death sentences have defined it differently In certain countries the death penalty is only used to

charge criminals accused of war crimes In other countries the penalty is reserved for crimes like

96

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf 97

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010 98

httpusersrcncommwooddeathpenhtml 99

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 100

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 101

httpwwwunorgdocumentsecosocdocs1995e1995-78htm

UNHRC 27 of 44

murder rape or even robbery States also use the death penalty against individuals who are guilty

of treason The issue however is that many states practicing the death penalty impose the

punishment even when the crimes do not meet the threshold for the aforementioned most

seriouslsquo crimes The ability of states to define what constitutes as a capital crime has led to states

abusing their powers as has been observed in the sentences ordained by military courts

Moreover even the radicals who make the argument of the punishment fitting the crime agree

that in many instances individuals have been executed for softlsquo crimes crimes that were

certainly not tantamount to charges of murder or crimes against humanity The issue of apparent

violations of human rights is further exacerbated in these instances The study guide will discuss

the universal crimes that have resulted in the awarding of the death penalty and examine the

issue further The committee will be expected to discuss the feasibility of drawing up an

international definition of crimes which in isolated instances perhaps may be appropriate for a

sentence like the death penalty

Another pertinent aspect surrounding the debate is that of extrajudicial killings The execution of

a person by state authorities without the authority of a judicial proceeding is termed as an

extrajudicial killing Many states have used extrajudicial killings to establish their authority and

order without having to wade through the legal process By doing so they have deprived scores

of people of their fundamental right to free and fair trials Governments have also employed this

tactic to exercise political aggression and to suppress dissent A particular point of concern is the

fact that some states have made use of these killings even when they have officially revoked the

imposition of the death penalty Extrajudicial killings are carried out persistently in many

countries ndash the list includes countries like Iran Iraq Israel Philippines102

Most recently the

killing of Anwar al-Awlaki and Samir Khan in Yemen by a sanctioned National Security Council

move by the USA was an example of states embarking on such paths to eliminate threats to

national securitylsquo103

102

Multiple citations for each country can be found in the second paragraph article titled Extrajudicial killinglsquo on

Wikipedia 103

httpwwwtelegraphcouknewsworldnewsbarackobama7564581Barack-Obama-orders-killing-of-US-cleric-

Anwar-al-Awlakihtml

UNHRC 28 of 44

Wrongful convictions lead many to believe in the inherent incapacity of the death penalty to

serve justice On September 21 2011 US citizen Troy Davis was executed in Georgia after

which seven of the nine witnesses who testified against him in the case that led to his execution

recounted or retracted their evidences A petition with nearly one million signatures was put

forth to reconsider his case it was rejected On the same day a 17 year old boy was publicly

hanged in Iran for killing a popular athlete his justification based on self-defense was ignored

Also on the same day a Pakistani national was executed in China on grounds of drug trafficking

an offence that does not often result in capital punishment The need for the resolution of this

issue is pressing and the committee needs to deal with all aspects of the problem in a

comprehensive and enduring manner104

Capital Punishment

In 2010 23 countries implemented capital punishment A total of 527 executions (plus the 1000+

carried out in China alone) were known to have taken place with Iran Yemen USA and North

Korea meting out a significant number of sentences105

The figure is lower than the records

computed for years past There are more states which are now abolitionist either in law or in

practice with regard to the imposition of the punishment Gabon was officially the last country

to rescind the practice while bills calling for an end to capital punishment have been presented

to parliaments in Lebanon Mali Mongolia and South Korea106

Renewed efforts are

104

httpwwwamnestyorgennews-and-updatesus-executes-death-row-prisoner-troy-davis-2011-09-21 105

httpwwwguardiancouknewsdatablog2011mar29death-penalty-countries-world 106

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010

UNHRC 29 of 44

simultaneously being made on the international front to implement laws against capital

punishment A third resolution establishing a moratorium on the use of death penalty passed the

UN General Assembly on December 21 2010107

Despite the increasing momentum towards an eventual elimination of the practice the number of

executions taking place annually is a cause of major concern Advocates of the death penalty

assert that the practice is an effective means of deterring crime in society Public executions are

often held in Iran Afghanistan and Palestine for example to demonstrate the fate awaiting

those who commit similar crimes108

Arguments are made on the grounds of justice that it is

proper and fair to take an eye for an eye and a life for a life and that some individuals deserve

it for the crimes they commit

Those opposing the practice question the morality of an action sanctioned by the state which

endorses deprivation of the right to life a fundamental human right under the Universal

Declaration of Human Rights109

There are inescapable flaws within legal systems which are

aggravated by discrimination prosecutorial misconduct and inadequate legal representation

Moreover the risk of executing the innocent can never be eliminated110

An alternative is

presented in the form of imprisonment for life without parole which results in a parallel debate

is imprisonment for life a viable surrogate to the practice of death penalty A thread from this

debate also relates to the economic feasibility of carrying out a death sentence as opposed to the

feasibility of imprisonment for life

Deterrence

Capital punishment is often propagated as an adequate approach in the deterrence and prevention

of crime The logic is that if murderers are sentenced to death potential murderers will think

twice before killing for fear of losing their own life The deterrence theory presumes that the

once the punishment for a certain crime is established the criminal by committing the crime

voluntarily assumes the risk of receiving the prescribed punishment for the crime Only when the

most severe punishment has been set will there be a possibility of an individual evaluating their

actions in light of the consequences111

107

httpwwwundemocracycomA-RES-62-149pdf 108

httpwwwamnestyorgennews-and-updatessharp-rise-public-executions-iran-executes-first-juvenile-

offenders-2011-2011-04-27 109

wwwunorgendocumentsudhr 110

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 111

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 30 of 44

The death penalty it is asserted ensures that convicted criminals do not offend again moreover

it is deemed to be a just penalty for atrocious crimes It is further alleged that many criminals

who are set free even after lengthy sentences regress and go on to commit heinous crimes

Therefore there should never be the possibility of a release clause112

The deterrence theory is modeled on the grounds of human psychology logic and rationale As a

professor of jurisprudence Ernest van den Haag PhD wrote ―Common sense lately bolstered

by statistics tells us that the death penalty will deter murder if anything can People fear nothing

more than death Therefore nothing will deter a criminal more than the fear of death These

statements were further validated by a US Supreme Court Justice who said on record that

Prima facie the penalty of death is likely to have a stronger effect as a deterrent to normal

human beings than any other form of punishmentlsquo113

Numerous studies have been conducted on

the subject with varying results One of the most established studies was conducted in USA

using a panel data set of over 3000 counties from 1977 to 1996 which concluded that on

average one death sentence resulted in 18 fewer murders114

Delegates will be expected to be

familiar with other similar studies

These studies are commonly refuted as not crediblelsquo by opponents of the capital punishment

who also deny the correlation between crime and death penalty as a fabricated relationship which

cannot be empirically established115116

A study of the relationship between capital punishment

and the incidence of murder was conducted for the UN in 1988 and updated in 2002 The

conclusion was ―The investigation has not provided scientific proof that executions have more

deterrent effect than life imprisonment It is unlikely that such evidence will ever come

Deterrence hypothesis finds no support in the survey117

Another counter-argument asserts that crime is still a persistent feature of the societies that

continue to award the death penalty while many of the abolitionist states enjoy low crime rates

This can be evidenced by comparing the crime rate in USA or Pakistan with that of Canada or

some European state In Canada for example the homicide rate per 100000 fell from a peak of

309 in 1975 the year before the abolition of the death penalty for murder to 241 in 1980 and

in 2003 27 years after abolition the homicide rate was 173 per 100000 44 per cent lower than

in 1975118

112

httpwwwdeathpenaltyinfoorgfacts-about-deterrence-and-death-penalty 113

httpdeathpenaltyproconorgviewresourcephpresourceID=002000 114

httpdeathpenaltyproconorgsourcefilesThe20Deterrent20Effect20of20Capital20Punishmentpdf ndash

Delegates should carefully examine certain parts of this document to establish the credibility of the assertions made

They should also invest in trying to locate studies that refute the assertions made in this and similar studies 115

httpwwwdeathpenaltyinfoorglaw-enforcement-views-deterrencelawenforcement 116

httpwwwdeathpenaltyinfoorgDonohueDeterpdf 117

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 118

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml

UNHRC 31 of 44

The lack of evidence on the production of a unique deterrent effect points to the danger of

relying on the deterrence hypothesis as a basis for public policy on the death penalty

Retribution amp Morality

An important terminology that delegates need to familiarize themselves with is that of

―retributivism119

It is defined as ―a policy of criminal justice that sponsors the punishment of

criminals in retribution for the harm they have inflicted120

Criminals deserve to be punished in

proportion to the gravity of their crime regardless of whether the victim or anyone else desires

it we may all deeply regret having to carry out the punishment but consider it warrantedlsquo is

what many say in defense of the theory121

The need for the establishment of a visibly just state arises from the potential risks of not having

one As has been visible in many developing countries with shaky legal systems when criminals

are not adequately punished for their unlawful behavior the public takes the law into its own

hands and deals out vigilante justice It is asserted that retributivism is essential for a functioning

society where individuals respect the supremacy of law

The concept of retribution in society is also grounded in religious beliefs The concept of an eye

for an eye has been a part of all three Abrahamic traditions However in the modern world it is

Islamic nations that still retain the practice based on these grounds Similar traditions can be

found in Hinduism Christianity and Buddhism as well as other religions in different parts of the

world In many non-secular countries the constitutions and state laws are derived from religious

doctrines

Opponents dismiss this aspect of the argument as being emotionally charged with little rational

logic to support the contention They claim that the establishment of capital punishment gives

birth to a culture of violence endorsed by the state It perpetuates the cycle of aggression and

brutality something which the state should be actively inhibiting not endorsing

Wrongful Convictions

The death penalty carries with it the danger of wrongfully convicting an innocent person for

crimes he did not commit There is the potential for capital punishment to evolve into sheer

miscarriage of justice as in certain circumstances states are often seen to rush the trials and

convict the accused hastily This practice takes foremost apparently in military courts often in

119

Cavadino M amp Dignan J (1997) The Penal System An Introduction (2nd ed) p 39 London Sage 120

httpdictionaryreferencecombrowseretributivism 121

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 32 of 44

the developing or lesser-developed countries where the system of law is not properly established

It is not however exclusive to these countries Examples can be drawn from countries like

Philippines Thailand Iran and Palestine to name just a few where executions are carried out at

alarming pace removing the possibility of reviews

On 15 August 2004 Atefah Rajabi Sahaaleh was hanged in a public square in the Iranian city of

Neka Her death sentence was imposed for adultery and crimes against chastity122123

Atefah

was executed a week after the trial was run Following the execution the Judge for the case was

arrested for investigation by the Intelligence Ministry The media reported that in addition to the

confession of his rape of Atefeh Judge Rezai who served as judge jury and executioner also

confessed to torturing her during interrogations to extract names of others she had relations with

No transcripts from court proceedings were recorded The State alleged that Atefah was 22 at the

time of her execution A witness later claimed The judge just looked at her body because of

the developed physique and declared her as 22124

ndash her birth certificate revealed she was born

in 1988 Furthermore Atefah did not have access to a proper defense where she could contest

charges leveled against her This is one example of many such cases of miscarriage of justice

Something that recurs in these cases is the failure of the police or prosecuting authorities to

prevent the use of unreliable witnesses the misuse of evidence or confessions and the provision

of inadequate defense representation The advent of DNA profiling and the use of it as positive

evidence in criminal cases has resulted in the exoneration of multiple death row inmates on

grounds of forensic evidence or lack thereof Since 1973 138 people have been released from

death row in the United States after it was proven that they were innocent125

In 2009 Paul

House was cleared of murder and exonerated in Tennessee USA after having served 22 years

on death row His innocence was proclaimed in light of substantial additional DNA testing and

further investigationlsquo 126

Amnesty International has noted examples of wrongful convictions from elsewhere as well

including Jamaica Japan China Nigeria and Tanzania127

Paul G Cassell a former law clerk to

the Chief Justice of USA stated the mistaken release of guilty murderers should be of far greater

concern than the speculative and heretofore nonexistent risk of the mistaken execution of an

innocent personlsquo highlighting the case made by those who advocate the death penalty even in

light of wrongful convictions128

122

httpwwwcosmolearningcomdocumentariesexecution-of-a-teenage-girl1 123

httpnewsbbccouk2hi5217424stm 124

httpnewsbbccouk2hi5217424stm 125

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 126

httparticlescnncom2009-05-13justicetennesseeexonerated_1_death-row-inmate-dna-evidence-house-

arrest_s=PMCRIME 127

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 128

httpdeathpenaltycurriculumorgstudentcaboutargumentstestimony3bhtm

UNHRC 33 of 44

Alternative to Death Penalty

All abolitionist states have reverted to the practice of sentencing criminals to life imprisonment

(some without parole) which is also termed as death by incarceration Widely regarded as a more

humane course of action life imprisonment is also alleged to be a more economical practice

While ensuring public safety by keeping criminals away from society this system also saves the

lives of innocent people who have been falsely or wrongfully convicted The setup inhibits and

curbs the cycle of violence while retaining the deterrence factor it is strongly asserted

Advocates for the death penalty are averse towards life imprisonment for a number of reasons

They cite the unreliability of the system as one of the flaws which impedes the possibility of

such a sentence being successful A certain James Moore serves as a valid example in this case

In 1962 James Moore raped and strangled 14-year-old Pamela Moss The victimlsquos parents opted

out of capital punishment for Moore and he was instead sentenced to life in prison without

parole Twenty years later a change in sentencing laws in 1982 renders James Moore eligible for

parole every two years129130

Kenneth McDuff is another example McDuff was convicted and sentenced to life imprisonment

Years later due to the issue of overcrowding in prisons McDuff was released following which

he killed eight more people McDufflsquos example is of an individual from a developed country

with an established legal system in place131

Overcrowding is a feature of prisons in developing

or lesser developed countries In many such states criminals have also been known to easily

break out from penitentiaries

The economic aspect of the debate is murky at best There is a lack of empirical data on the

subject which is why the arguments of both these sides cannot be settled beyond doubt

Advocates of capital punishment insist that the overall costs of the practice are far lesser than the

costs of housing an inmate for a lifetime132

They also suggest that the life imprisonment allows

criminals to conceive new habeas corpus petitions which on legal grounds cannot be rejected

automatically resulting in more trials

On the other hand substantial arguments are made which stress that the cost of legal proceedings

in capital cases is in truth more than that of other cases States and nations spend a significant

portion of the taxpayerlsquos money in meting out such punishments133

Delegates when addressing

this portion of the debate will need to be aware of the financial aspects of the issue as it forms

for many states an important part of whether capital punishment should be revoked or

not

129

httpwesleylowecomcphtmldeter 130

httpwwwnytimescomkeywordparole 131

httpwesleylowecomcphtmldeter 132

Ibid ndash view section titled Capital Punishment and its costslsquo 133

httpwwwamnestyusaorgour-workissuesdeath-penaltyus-death-penalty-factsdeath-penalty-cost

UNHRC 34 of 44

Imposition of Death Penalty on Juveniles

The prohibition on the death penalty for crimes committed by juvenile offendersmdashpersons under

age 18 at the time of the offensemdashis well established in international law specifically in the

Convention on the Rights of Child

ldquoNo child shall be subjected to torture or other cruel inhuman or degrading treatment or

punishment Neither capital punishment nor life imprisonment without possibility of release shall

be imposed for offences committed by persons below eighteen years of agerdquo134

- Article 37(a) Convention on the Rights of Child

ldquoSentence of death shall not be imposed for crimes committed by persons below eighteen years

of age and shall not be carried out on pregnant womenrdquo135

- Article 6(5) International Covenant on Civil and Political Rights

The treaties are a unanimously agreed set of non-negotiable standards and obligations By

acceding to the treaties and ratifying them governments commit to protecting and ensuring

childrens rights and to holding themselves accountable for this commitment before the

international community

Even though the practice of capital punishment on juveniles is relatively rare however in clear

contravention of international law nine countries have executed offenders who were juveniles at

the time of their crimes between 1990 and 2005136

These countries include the Peoples Republic

of China (PRC) the Democratic Republic of the Congo Iran Nigeria Pakistan Saudi Arabia

Sudan the United States and Yemen137

The USA has since moved to implement a ban on capital

punishment for juveniles However in most other countries of the preceding list the practice is

still enshrined in the judicial system Iranlsquos record in particular has been abominable over the last

decade It has carried out 39 executions of persons under the age of 18 since 2005 Presently

over a hundred individuals are placed on death row for crimes committed as juveniles The

executions of Mahmoud Asgari Ayaz Marhoni and Makwan Moloudzadeh became international

symbols of Irans child capital punishment and the judicial system that hands down such

134

httpwww2ohchrorgenglishlawcrchtm 135

httpwww2ohchrorgenglishlawccprhtm 136

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf - This document by the Human Rights Watch

called The Last Holdoutslsquo is a good summary of juvenile executions and should be reviewed 137

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 - Contains a list with

statistics and details of countries which have allowed the imposition of death sentence to juveniles

UNHRC 35 of 44

sentences138139140

Saudi Arabia and China too have questionable records that need to be

scrutinized further

While regional treaties and charters usually substantiate international law the Arab Human

Rights Charter of 2004 is unique among regional and international treaties in that the ban on the

juvenile death penalty in it is not absolute but merely optional141

Furthermore national laws in states that observe such a practice are in violation of

international legally-binding charters In Iran and Saudi Arabia laws usually treat a child the

same way as an adult criminal offender would be treated Article 10(3) of the International

Covenant on Civil and Political Rights emphasizes the need for demarcation between the

handling of children and that of adults in stating ―Juvenile offenders shall be segregated from

adults and be accorded treatment appropriate to their age and legal status142

The definition of a child in these Muslim states is unclear as adulthood is associated with

attainment of puberty which is a relative concept The Committee on the Rights of the Child in

January 2005 censured the Saudi government for its practice of imposing the death penalty on

juveniles terming it a serious violation of the fundamental rights The committee was deeply

alarmed over the discretionary power judges hold to treat juveniles as adults as was stated in

the committeelsquos report Iran too was strongly condemned following the release of an

international report highlighting the dire situation in Iran by the International for Human Rights 143

138

httpwwwfoxnewscomstory0293329798200html 139

httpnewsbbccouk2himiddle_east7130380stm 140

httpenwikipediaorgwikiCapital_punishmentIran 141

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 142

httpwww2ohchrorgenglishlawccprhtm 143

httpwwwfidhorgIMGpdfRapport_Iran_finalpdf

UNHRC 36 of 44

On August 19 2008 Iranian authorities executed Seyyed Reza Hejazi at Isfahan Central Prison

for his role in a murder committed in 2003 when he was 15 Hejazi was tried as an adult by

Branch 106 of the Isfahan General Court even if he did not qualify as one under international

stipulations and sentenced to death on November 14 2005144

In Saudi Arabia Mu`id bin

Husayn bin Abu al-Qasim bin `Ali Hakami was executed on July 10 2007 for a murder he

allegedly committed three years earlier when he was 13 years old145

The judges in these states

because of the implementation of the Sharialsquo law have a large amount of discretion with regard

to their rulings This discretion is often abused in the interrogation and judicial proceedings In

Pakistan authorities hanged Mutaber Khan in Peshawar Central Prison on June 13 2006 on

charges of murder of five people The fact that he was held in the juvenile wing of Peshawar

Central prison and the evidence presented by the accused confirming that his age was below 18

at the time of the killings were not taken into account during the trials and Mutaber was charged

as an adult in the case146

While the above does not cover exhaustively the practice of capitally punishing juveniles the

committee is expected to be well read on the matter The committee will be required to devise

ways to strictly apply the existing international law on the subject to curtail further deaths of

juveniles by states A series of recommendations on better implementation of international

covenants will be expected from the committee Delegates at UNHRC will also have to

familiarize themselves with the stipulations in the national laws of countries practicing juvenile

death penalties (Iran Saudi Arabia Pakistan Nigeria Sudan Yemen and UAE among others) to

discuss how these states are constitutionally able to bend international law and mete out the

illegal punishments

144

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 145

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 146

See FIDH and Human Rights Commission of Pakistan ―Slow march to the gallows and ―Condemned Prisoner

Executed Dawn Newspaper Karachi June 14 2005 httpwwwdawncom20060614nat16htm

UNHRC 37 of 44

Universality of Laws Incurring the Death Penalty

In countries which have not abolished the death penalty capital punishment may be imposed

only for the most serious crimes it being understood that their scope should not go beyond

intentional crimes with lethal or other extremely grave consequences

- Safeguards guaranteeing protection of the rights of those facing the death penalty147

Laws incurring the death penalty or capital crimes have certain uniformity the world over This

is of course barring states that are religiously affiliated and whose law systems are not secular

in nature The list of capital crimes for those states with non-secular legal systems is slightly

different The Human Rights Commission had decided that the imposition in the State party of

the death penalty for offences which cannot be characterized as the most serious including

apostasy committing a third homosexual act illicit sex embezzlement by officials and theft by

force are incompatible with Article 6 of the Covenant Economic offences including

embezzlement drug related offences political offences and robbery were also referred to148

The reason why looking into capital crimes and trying to garner a global impression of them is

important is that the death penalty can only realistically be abolished in a piecemeal way This

process will entail shortening the list of capital crimes The UN formally notes that ―in order

fully to guarantee the right to life provided for in article 3 of the Universal Declaration of

Human Rights the main objective to be pursued is that of progressively restricting the number of

offences for which capital punishment may be imposed with a view to the desirability of

abolishing this punishment in all countries149

The first established death penalty laws date as far back as the Eighteenth Century BC in the

Code of King Hammaurabi of Babylon which codified the death penalty for 25 different crimes

By the 1700s 222 crimes were punishable by death in Britain including stealing cutting down a

tree and robbing a rabbit warren In the 19th

century the death penalty was eliminated for over

100 of the 222 crimes punishable by death 150

In modern times the UN Special Rapporteur on

extrajudicial summary or arbitrary executions has stated that the death penalty should be

eliminated for economic crimes and drug-related offences and that the restrictions to its use

―exclude the possibility of death sentences for so-called victimless offences ndash including acts of

treason espionage and other vaguely defined acts usually described as crimes against the Statelsquo

or disloyaltylsquo and ―actions primarily related to prevailing moral values such as adultery and

prostitution as well as matters of sexual orientation151

147

httpwww2ohchrorgenglishlawpdfprotectionpdf 148

httpwwwunhchrchtbsdocnsf0bc310a747155dff88025655300537faeOpendocument 149

General Assembly resolution 2857 httpwwwunodcorgpdfcompendiumcompendium_2006_part_01_05pdf 150

httpdeathpenaltycurriculumorgstudentcabouthistoryhistoryPDF 151

httpswwwabofimedia24259report10pdf

UNHRC 38 of 44

Contrary to the made recommendations even political dissent warrants a death sentence in

several countries most notably in China and Iran In 2010 nearly 20 Kurdish people were

executed for political offences in Iran The country is known for keeping dissent especially from

the Kurds suppressed Most are executed on the grounds of moharebeh or enmity against God

Moreover challenging the power of the Ayatollah is also punishable by death These charges are

neither explicit nor in line with international guidelines over what crimes are punishable

capitally In Iran judges must handle such cases carefully as Iranian law provides for only one

punishment if an individual is found to be guilty of treason Libya too thwarts political dissent

with firm laws in place for punishing by death those who illegally form groups organizations or

associations against the state152

Saudi Arabia too is worth note for its vaguely phrased laws governing capital punishment

Intentional murder and crimes that spread ―mischief in the land (Fasad fil-ardh) merit death In

2010 the government announced that it had executed 26 people all by beheading Crimes that

―spread mischief include witchcraft and sorcery153

How is one convicted of witchcraft in the

21st century What can the international community do when regarding countries such as these

Treason arguably along with murder is the capital crime that has yet to be phased out by many

countries In some such as Brazil treason during warfare is the only crime for which a person

can be sentenced to death In the Gaza Strip under Hamas any sort of cooperation with Israeli

forces during military actions is also punishable by death In others including Algeria Bahrain

Iran and Malaysia treason is punishable by death in all circumstances The United States too has

federal laws governing treason under which traitors ―shall suffer death154

Child sex abuse is another crime that is widely held to merit the death penalty In Russia for

example according to the Russian Public Opinion Research Center an overwhelming majority

consider the death penalty to be an acceptable punishment especially in relation to molestation

155 In 2009 however Russias Constitutional Court effectively abolished the death penalty by

extending indefinitely a 13-year-old moratorium on capital punishment156

Indonesia has some of the strictest penalties for drug related crimes in the world Roughly half of

those on death row are incriminated with drug-related charges157

In 2008 though the most high

profile executions were of terrorists Three of those found responsible for the 2002 Bali

bombings were executed by shooting158

Generally speaking however a significant proportion of

152

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 153

httpwwwstategovgdrlrlshrrpt2010nea154472htm 154

httpdeathpenaltyproconorgviewresourcephpresourceID=1172 155

httpenrianrutrenddeath_penalty 156

httpwwwreuterscomarticle20091119idUSLJ330478 157

httpwwwnytimescom20080711worldasia11iht-indo114421132html 158

httpnewsbbccouk2hiasia-pacific7718246stm

UNHRC 39 of 44

the executions or death sentences recorded (in 2010) in China Egypt Indonesia Iran Laos

Libya Thailand United Arab Emirates and Yemen were for drug-related offences In December

2010 the amended Anti-Narcotics law came into force in Iran extending the scope of the death

penalty to include additional categories of illegal drugs (for example crystal meth) possession

of which became punishable by death Also around the same time the National Assembly of

Gambia voted to extend the scope of the death penalty by making the possession of more than

250g of heroin or cocaine an offence punishable by death159

Several states allow for the death penalty for crimes of blasphemy and other crimes for

nonviolent expression and association In Pakistan Aasia Bibi a Christian mother of five was

charged with blasphemy and sentenced to death after a trial largely believed to be unfair on 8

November 2010 She is currently on death row The country is also noted for its laws concerning

capital crimes The list includes 27 crimes most of which go beyond the notion of ―most serious

crimes as recommended by the International Covenant on Civil and Political Rights Extra-

marital sex and blasphemy are examples of some capital crimes in the country In December

2007 Pakistan voted against a United Nation General Assembly resolution for a moratorium on

the death penalty The year before however the nation amended its law on rape and adultery

charges which are no longer punishable by death160

As far back as 1989 recommendations have been made as to how to abolish the death penalty

Member states (of the UN) have been urged ―to publish for each category of offence for which

the death penalty is authorized and if possible on an annual basis information about the use of

the death penalty including the number of persons sentenced to death the number of executions

actually carried out the number of persons under sentence of death the number of death

sentences reversed or commuted on appeal and the number of instances in which clemency has

been granted and to include information on the extent to which the safeguards referred to above

are incorporated in national law161

The committee must inspect how far this recommendation

has been adopted and should seek to rectify the weaknesses in the system of gradually

abolishing the death penalty Can a target year be designated by which crimes meriting the death

penalty could be made universal How can countries with non-secular legal systems be brought

into the fold of international law

159

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 160

httpwwwfiacatorgenIMGpdfdppakistan-enpdf 161

httpgraduateinstitutechfacultyclaphamhrdocdocsecosocresolutiondeathpen1989html

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 8: UNHRCFINAL

UNHRC 4 of 44

While the Council faces criticism along the lines of that made against the Commission it has

come a long way from being the ―shadow on the ―reputation of the UN system as whole 6

6 httpnewsbbccouk2hiamericas6919268stm

UNHRC 5 of 44

Topic Area A The Great Firewall of China Review of the Human Rights Situation

Introduction to the Topic Area

The Peoplelsquos Republic of China is the worldlsquos most populous country with an estimated

population of 137 billion It is also one of the largest countries in terms of its land territory

China has firmly established itself as a premier world economic powerhouse It is the worlds

second-largest economy after the United States by both nominal GDP ($593 trillion) and

purchasing power parity ($1012 trillion) A single-party state governed by the Communist Party

of China it is widely acknowledged to be the worlds fastest-growing major economy and the

worlds largest exporter and second-largest importer of goods China is also a permanent member

of the UNSC and is a prominent figure in international politics It is a recognized nuclear

weapons state and has the worlds largest standing army with the second-largest defense budget

China is on par with the United States as a superpower and is soon even expected to supersede

the latter as the worldlsquos major politico-economic power

However Chinalsquos record in relation to human rights violations stands out for all the wrong

reasons China has been ruled by the Communist Party since it gained power and established the

Peoplelsquos Republic of China in 1949 It is believed to be in breach of numerous human rights and

its transgressions are a subject of much concern for the entire international community Some

issues like the Tiananmen Square of 1989 or that of Mr Liu Xiaobolsquos imprisonment have seen

the light of day and escaped the iron clutches of Chinese control on media However thousands

of other cases are never brought out into the open and are unable to draw international attention

which is why this year at LUMUNlsquos United Nations Human Rights Council the debate will focus

on China and its human rights violations The human rights abuses in focus will be Chinalsquos

violation of reproductive rights the case of internet censorship in China and the right to free

speech political prisoners in China and illegal detention the infringement of rights in the

conflict with Tibet and ethnic minority rights

The committee will not only be expected to discuss all aspects of the issues distinctly and in

extensive detail The committee will also be expected to be familiar with the Universal

Declaration of Human Rights all pertinent treaties resolutions and conventions

UNHRC 6 of 44

Chinarsquos Violation of Reproductive Rights

While reproductive rights are not specifically mentioned in the Universal Declaration of Human

Rights they are widely understood to be an extension of the freedom of choice and right to life

They are to be granted equally to all humans without discrimination of race sex language or

religion under the United Nations Charter7 Reproductive rights embrace certain human rights

that are already recognized in national laws international human rights documents and other

relevant UN consensus documents The World Health Organization defines reproductive rights

in the following manner

ldquoReproductive rights rest on the recognition of the basic right of all couples and individuals to

decide freely and responsibly the number spacing and timing of their children and to have the

information and means to do so and the right to attain the highest standard of sexual and

reproductive health They also include the right of all to make decisions concerning reproduction

free of discrimination coercion and violence8rdquo

Only if individuals have the freedom to be in control of their sexual and reproductive lives can

uninhibited social development occur However the lack of any binding international covenant

on the subject is a grave state of affairs Soft laws in the form of non-binding measures are

often deemed too inadequate in mounting a challenge against the issue The United Nations

Human Rights Council has the capacity to make recommendations for the revision of the

aforementioned fact and will be something that the committee should focus on

Reproductive rights include in their spectrum the right to legal or safe abortion the right to

access quality reproductive healthcare the right to birth control and the right to education in

order to make well-informed reproductive choices without any coercion or violence9 Equality

and equity for men and women is of paramount importance while addressing such civil liberties

so that individuals are able to make free and informed choices in all spheres of life without any

discrimination of any kind An essential aspect of the debate is related to the right to privacy that

all individuals must be granted in the process of their decision-making

The provision of such personal human rights is notably absent in China With the stern

implementation of the one-childlsquo policy10

China has undertaken extreme measures at the cost

of innumerable human rights to curtail population growth Despite having previously ratified the

7 Article 1 of the UN Charter httpwwwunorgendocumentscharterchapter1shtml

8 Gender and reproductive rights home page httpwwwwhointreproductivehealthen

9Amnesty International USA

httpwwwamnestyusaorgStop_Violence_Against_Women_SVAWReproductive_Rightspagedoid=1108242ampn

1=3ampn2=39ampn3=1101 10

Article 18 of Population and Family Planning Law of Peoplelsquos Republic of China

httpwwwunescaporgesidpsispopulationdatabasepoplawslaw_chinachina20pop20and20family20plan

ningpdf

UNHRC 7 of 44

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in

198011

which prohibits coercion in family planning policies12

China continues to dictate the

reproductive lives of all its citizens While the Law on Population and Family Planning states

that one child is mostly merely encouraged abusive or coercive enforcement measures such as

forced abortions compulsory sterilizations and the forced insertion of intra-uterine devices after

abortions or births are common practices that are regularly documented13

Forced sterilizations are a troublingly common practice in other regions as well Perulsquos case is

important in this regard with its program of achieving a target number of sterilizations each

year sometimes numbering in the hundreds of thousands Indeed the government would

sometimes bribe women to undergo these procedures in exchange for food and medicine for

their existing children 14

A system of enhanced monitoring strategies is often regarded as one of

the solutions to the problem

Another pervasive measure employed by the state is the routine monitoring of the menstrual

cycle of women particularly those in the child-bearing age by family planning officials15

Their

employment is often contingent upon compliance with the policy The right to privacy is

severely breached in all such instances Furthermore unmarried women are not allowed to have

children and even married couples must apply for a birth permit before they can legally bear

children16

Analyzing the statelsquos penetrating involvement and interference in the private spheres

of individuals in light of existing treaties and conventions will be one of the committeelsquos tasks

Women and couples who defy the policy face fines amounting to several yearslsquo salary have their

access to social services cut and are even imprisoned in certain cases Their so-called black

childrenlsquo have no legal status in China meaning these children are not granted any rights

whatsoever and do not have access to education health or any other services provided by the

State There are an estimated 6 million undocumented children in China most of which are

believed to be girls17

The cases of Mao Hengfeng and Chen Guangchengserve as prime examples demonstrating the

inhumane nature of penalties handed out by the Chinese state to violators of the one-child

policy18

Mao a human rights activist was sentenced to two and a half years in prison after she

refused to have an abortion Chen was a blind self-taught lawyer and activist who was charged

and punished with more than four years in prison after exposing abuses in the implementation of

the one-child policy

11

httpunifem-eseasiaorgChina 12

httptreatiesunorgPagesViewDetailsaspxsrc=TREATYampmtdsg_no=IV-8ampchapter=4amplang=en 13

httpwwwrhrealitycheckorgnode7926 14

httpwwwwebsteredu~woolflmforcedsterilizationhtml 15

Page 2 httpwwwcensusgovpopulationinternationalfilesspSP73pdf 16

httpfactsanddetailscomchinaphpitemid=128ampcatid=4ampsubcatid=15 17

Ibid 18

httpwwwrhrealitycheckorgnode7926

UNHRC 8 of 44

The appalling state of affairs is further augmented by the actions the Chinese state takes to

impede the birth of conceived children It implements very strictly a program of compulsory

sterilization and forced abortions to minimize the birth of a second child in a family While

abortion itself may be a debatable and controversial topic the subset of such a controversy in the

form of a state-regulated forced abortion is excruciatingly black and white The undeniable

cruelty of forced abortions is not a deterrent strong enough for the Chinese government and the

phenomenon exists widely in China In fact the policy leads to an estimated 13 million abortions

every year with many of those ordered by local authorities Infanticide is a common practice

especially in the rural areas of the country19

Women are abducted by the state and at the cost of

their lives are forced to undergo forced and mostly unsafe abortions

In October of 2010 China forced an eight-month pregnant woman into an abortion for breaching

the one-child policy20

Government officials entered Xiao Aiyinglsquos residence hit and kicked her

in the stomach and subsequently dragged her to the hospital where doctors injected her with a

lethal drug to kill her unborn baby Xiaolsquos husband later described the incident They held her

hands behind her back and pushed her head against the wall and kicked her in the stomachlsquo The

animalistic discourse adopted by the government officials is a testimony to Chinalsquos open rebuke

for human rights More recently Womenlsquos Rights without Frontierslsquo and China Aidlsquo reported

the death of a six-month pregnant woman during a forced abortion on October 12th

201121

Jihong Ma was seized by Family Planning Officials for a forced abortion having violated the

one-child policy

While the positive environmental impact of the prevention of 300 to 400 million births may be

cited22

it must be noted the one-child policy privileges only the wealthy who can afford the

fines for additional births and have better access to contraceptives and health care while

punishing the poor who are financially crippled by the fines incurred for additional births

Moreover this policy punishes the children of the poor because they are more likely to be kept

hidden from the state and thus will not have access to health care and the education they need to

climb out of poverty In this way social disparity is further perpetuated within the existing

framework

Another adverse byproduct of Chinas 30-year-old family planning policy is the gender

imbalance that is now manifested most clearly among those of marrying age The British

Medical Journal claimed that in 2005 there were 32 million more males than females (under the

age of 20) in China23

Even though China banned prenatal sex screening in 199424

illegal

ultrasound tests allow prospective parents to choose the gender they prefer for their only child

19

httpwwwdailymailcouknewsarticle-1322601China-forces-woman-abortion-EIGHT-months-breaching-

child-policyhtml 20

Ibid 21

httpwwwwomensrightswithoutfrontiersorgblogp=429 22

―Has Chinas one-child policy worked httpnewsbbccouk2hiasia-pacific7000931stm 23

British Medical Journal BMJ 2009 338b1211 httpwwwbmjcomcontent338bmjb1211full 24

―A Brief History of Chinas One-Child Policy httpwwwtimecomtimeworldarticle08599191286100html

UNHRC 9 of 44

creating a massive imbalance This imbalance will lead to drastic results in the next few years an

implication the committee needs to take in account when establishing a framework for

responding to the issue

The Human Rights Council conducted a Universal Periodic Review of China in 200925

to much

international consternation and surprise the report lacked substantial evidence implicating

China and was instead found to be extremely vague The role of the United Nations in defining

and drawing attention to the issue is of key significance and the Human Rights Council must

make recommendations on how the United Nations can enhance its capacity in laying the

foundations for the case The Council can also make recommendations regarding the changes

that can be brought about in the conduct of the Review and otherwise in order to be able to

contain the issue with lesser difficulty

The committee will be called upon to review reproductive rights in detail including the implicit

and explicit consequences on the people of China Access to reproductive healthcare is a

problem the world over and is often consciously violated by states Is there a way to control

these violations perhaps through devising enhanced monitoring strategies

The Case of Internet Censorship in China and the Right to Free Speech

Everyone has the right to freedom of opinion and expression this right includes freedom to hold

opinions without interference and to seek receive and impart information and ideas through any

media and regardless of frontiers26

- Article 19 Universal Declaration of Human Rights

Everyone shall have the right to freedom of expression this right shall include freedom to seek

receive and impart information and ideas of all kinds regardless of frontiers either orally in

writing or in print in the form of art or through any other media of his choice 27

- Article 19 (2) International Covenant on Civil and

Political Rights

The Peoplelsquos Republic of China along with being the most populous region of the world is also

home to the worldlsquos largest collection of internet users According to Xinhua Chinalsquos state-run

English news agency Chinalsquos internet user ship exceeded 500 million users as of September

201128

China is also the worldlsquos largest media market However despite these impressive

statistics it is both interesting and disturbing to note that the Republic is also remarkable for its

25

httplibohchrorgHRBodiesUPRDocumentsSession4CNA_HRC_WG6_4_CHN_3_Epdf 26

httpwwwohchrorgENUDHRDocumentsUDHR_Translationsengpdf The Universal Declaration of Human

Rights 27

httpwww2ohchrorgenglishlawpdfccprpdf The International Covenant on Civil and Political Rights 28

httpnewsxinhuanetcomenglish2010china2011-0929c_131167919htm

UNHRC 10 of 44

censorship history About a dozen government bodies control internet usage including the

Ministry of Public Security29

It has been noted that while the Chinese advertising industry is

booming this freedom does not extend to editorial content of newspapers30

This phenomenon of

Chinese censorship has been labeled in the mainstream global media as the Great Firewall of

China The Firewall serves to filter both the information coming into China as well as

information generated within the nation It is beyond being a clever pun a matter of concern for

the committee because of its repressive characteristic The State imposes such extreme

restrictions of freedom of information under the premise of protection of its nationalistic

interests However its negative connotation is much obvious and its resemblance to Orwelllsquos

Ministry of Truth and the notion of thought control is uncanny The Peoplelsquos Republic has signed

(not ratified) the International Covenant on Civil and Political Rights The committee can look

into the reasons behind this as well as assess current global membership to the covenant

Chinalsquos Internet censorship is centered on the control of political thought The Measures on the

Administration of Internet Information Services and the Provisions on the Administration of

Internet News and Information Services are the two main instruments used to do so31

Section 19

of the latter deserves special attention and casts its scope to prohibit activities that disrupt

―national policies on religion propagating evil cults and feudal superstitions jeopardize ―the

security of the nation harm ―integrity of the nationlsquos unity or ―the honor or the interests of the

nation among other things32

Regulations are so stringent that in 2008 only eight websites out

of a total of 430000 in Guangdong Province ndash Chinalsquos most populous region -- were able to

obtain news publication qualifications permits33

The Internet news and information services entities engaging in Internet news and information

services shall abide by the Constitution laws and regulations by persisting in providing service

for the people and serving socialism and guiding public opinion to protect the interests of the

nation and the public

- Article 3 Provisions on the Administration of Internet News and Information Services

The national report submitted by China to the Working Group for the Universal Periodic Review

in 2009 exhibited the governmentlsquos opinion that ―with such easy fast and diverse ways of

gaining access to information and expressing opinion including criticism of the Government

Chinese citizens are enjoying an entirely new lifestyle34

According to a white paper published

29

httpwwwhrworgreports2006china08063htm_ftnref28 30

httpnewsbbccouk2hiafricacountry_profiles1287798stm 31

httpwwwhrichinaorgcrfarticle3244 32

httpwwwchinaitlaworgp1=printampp2=051006175116 Provisions on the Administration of Internet News and

Information Services

Please peruse the following httpwwwhrworgreports2006china08063htm for commentary on the Provisions 33

Ibid 34

httplibohchrorgHRBodiesUPRDocumentsSession4CNA_HRC_WG6_4_CHN_1_Epdf

UNHRC 11 of 44

in 2008 by the Information Office of the State Council the internet is a ―crystallization of human

wisdom and ―Chinese citizens fully enjoy freedom of speech on the internet 35

Chinalsquos policies have relevance beyond

their contravention of what may seem to be

abstract principles China has jailed the

largest number of internet dissidents the

world over The case of Liu Shaokun for

example is a notable one He was a

teacher in Sichuan province which had

been hit in 2008 by a ravaging earthquake

around the time of the Summer Olympics

in Beijing China had been praised for

allowing reporters to openly cover the

earthquake Much of this openness however was part of a bid to soothe the international

community and project Beijinglsquos image as being the perfect venue for the Olympics Shaokun

however was sentenced to a year of labor for posting photographs of schools affected by the

earthquake He is among countless others who have been silenced36

When the Arab Spring flowered over the Middle East China cracked down on many social

networking sites to curb pro-democracy sentiments Amongst these was LinkedIn blocked over

the fact that one of its users had mentioned the possibility of a ―Jasmine Revolution in China37

The government blocks discussions about the Dalai Lama the Tiananmen Square protests and

the Falun Gong spiritual movement among other things In April of 2007 the Chinese version of

MySpace launched but lacked discussion forums centered on the aforementioned topics among

others including Taiwanlsquos independence In 2010 Google considered withdrawing its services

from China after a spur of cyber-attacks on email accounts of human rights activists 38

Google

and the government reached a deal whereby Google operated by Chinese guidelines within

mainland China However Google has a non-censored operation running in Hong Kong to

which it started routing customers in 2010 when it had concerns over Google accounts being

hacked by authorities It is testament to Chinese control that companies such as Google are

forced to enter the internet market on its terms Other instances of well renowned internet

websites being blocked or affronted include Twitter being banned during the 20th

anniversary of

the Tiananmen killings

The Committee to Protect Journalists ranks China as one of the worst internet censors The

Chinese government has been alleged of carrying out ―spear-phishing whereby spying software

disguised as legitimate emails is installed on computers that belong invariably to journalists

35

httpchinaorgcngovernmentwhitepapernode_7093508htm 36

httpcpjorgreports201012cpj-journalist-prison-census-iran-china-highest-14-yearsphp 37

httpwwwbbccouknewstechnology-12586462 38

httpnewsbbccouk2hi8460129stm Please look at this link for a timeline of Chinalsquos internet history

UNHRC 12 of 44

Victims included those writing about Liu Xiaobo the imprisoned human rights defender who

received the Nobel Peace Prize in 201039

According to statistics over 80 of Chinas netizens rely mainly on the Internet for news 40

With this state of affairs and increasing dependence the world over on the internet as a major

source of information discussing information monopolies is crucial To isolate a country of over

a billion and deny it access to information in the age of technology may not seem a palpable

physical or otherwise contravention of human rights however its consequences are

tremendous While one may think that media censorship is restricted to dictatorial regimes the

case of China serves to refute that line of thought Media censorship is prevalent even in

countries as varied as Indonesia India Mexico and Russia ndash all of whom rank relatively low on

the Press Freedom Index41

Looking at instances worldwide and the justifications given for

restricting rights will be a useful direction to take while researching

The following website is a useful tool to check the status of websites in China

httpwwwgreatfirewallofchinaorg

Political Prisoners in China and Illegal Detention

Political prisoners are those whose imprisonment is carried out arbitrarily on contestable and

controversial grounds Governments detain certain individuals on the basis of allegedly valid

grounds which are not always disclosed or declared Many detainees charge existence of ulterior

motives or extrajudicial reasons on part of the state for their detention The phenomenon of

political prisoners is often associated with closed regimes such as Burma and the DPRK

However the Peoplelsquos Republic of China too does not escape scrutiny when the topic of political

prisoners is at hand The phenomenon of political prisoners resonates so loudly in the

international spheres particularly because governments deny the existence of political prisoners

they claim that all detainees are lawfully held under criminal law The unfair detainment of

persons or the capture of people to serve the interests of a government contravenes many human

rights including freedom of expression association and assembly Indeed a countrylsquos political

imprisonment record is one of the crucial indicators of its human rights situation

Amnesty International views political prisoners as prisoners of conscience These are more

specifically ―people who have been jailed because of their political religious or other

conscientiously-held beliefs ethnic origin sex color language national or social origin

economic status birth sexual orientation or other status42

39

httpwwwcpjorgreports201105the-10-tools-of-online-oppressorsphp 40

httpchinaorgcngovernmentwhitepapernode_7093508htm 41

httpenrsforgpress-freedom-index-20101034html 42

httpwwwamnestyusaorgour-workissuesprisoners-and-people-at-riskprisoners-of-conscience

UNHRC 13 of 44

According to the (US) Congressional Executive Commission on China over 5000 cases of

politically or religiously motivated imprisonments have been made It has detailed documented

information on the status of 1452 of these prisoners and

notes that its information is far from complete and that the

true story of Chinalsquos political prisoners remains unknown 43

The plight of political prisoners in China is speculated upon

by various international organizations Among these is the

Human Rights Watch which has gone as far as labeling the

locations for holding political prisoners ―black jails and

―alleyways in hell Officially though the Chinese

government denies the existence of political prisoners Subsequent to Chinalsquos Universal Periodic

Review an outcome report was published which came under fire from various sides The Human

Rights Watch called the substance of the report to be ―manifestly so far removed from reality

that [it] would immediately discredit anybody that adopted them in a report 44

In the report of

the UNHRC Working Group subsequent to Chinalsquos UPR it is stated that the Chinese

government does not use ―state secrets to suppress human rights defenders 45

It is precisely this

situation that our simulation wishes to remedy discussion should be fact based

The ground realities are different In 2010 Chinese activist and human rights defender Mr Liu

Xiaobo was awarded the Nobel Peace Prize He was jailed by Chinese authorities for

distributing his ―Charter 08 a document that called for freedom of expression and of assembly

among other things The government incarcerated him for an 11 year time-period on the charge

of subversion Subsequent to the prize the Chinese government came down hard on other human

rights activists Indeed those celebrating the awarding of the prize to Mr Xiaobo were arrested

arbitrarily While distributing fliers celebrating the win many were imprisoned on the grounds of

―inciting subversion of state power The Report of the Special Rapporteur on the situation of

human rights defenders published in 2011 makes mention of these facts46

The Chinese

government labeled the award an ―obscenity It is vague allegations such as these that allow

governments to thwart dissidents As expected though according to the report of the HRC

Working Group No individual or press has been penalized for voicing their opinions or

views47

When discussing China and political prisoners it is important to mention the Falun Gong

movement It is a spiritual variant of Buddhism and originated in China on the basis of the

teachings of its founder Li Hongzhi The movement was supported within the Chinese

43

httpwwwceccgovpagesvictims20101010_PPD_AR10pdfPHPSESSID=705596c0e91f35e392e6f0ecbb78d6

7c 44

httpwwwhrworgennews20090610human-rights-watch-statement-upr-outcome-report-china 45

httpdaccess-dds-nyunorgdocUNDOCGENG0916299PDFG0916299pdfOpenElement 46

httpwww2ohchrorgenglishissuesdefendersdocsAHRC1644Add1_EFSonlypdf Page 63 47

httpdaccess-dds-nyunorgdocUNDOCGENG0916299PDFG0916299pdfOpenElement Para 71

UNHRC 14 of 44

officialdom initially However Falun Gonglsquos popularity within the masses as well as its

independence from the state and its spiritual teachings was soon perceived as a threat to the

government By the late 1990lsquos the Chinese government cracked down on the movement and

labeled it as a heretical organization Chinese legislation uses the expression ―Xiejiao zuzhi to

refer to a wide range of sectarian or unorthodox religious groups which do not meet official

approval The Falun Gong movement is included in this list48

The Falun Gong followers are the

worldlsquos largest group of prisoners of conscience The PRC often picks up practitioners and

accuses them of ―using an evil cult to destroy implementation of the law 49

China with its strict non-religious government did not take kindly to this new movement that

had garnered millions of followers both within China and internationally between 1992 and the

crackdown in 1999 Today Falun Gong is practiced freely in more than 70 countries around the

world with clubs and associations existing in a range of settings50

Beginning at the turn of the

millennium the authorities started to ban access to websites that contained material about the

movement Indeed a search on the movement on Chinalsquos Xinhua News Agency website will

even today yield nothing (It may be an interesting experiment for delegates to conduct) Those

who reported the initial crackdown were ―followed detained interrogated and threatened

according to a letter written in 1999 by The Foreign Correspondents Club (FCC) of China51

The Falun Gong movementlsquos official website deals with its persecution thus The complex

rationale behind the persecution can be broken into four elements a paranoid dictators fear of

Falun Gongs meteoric growth and soaring popularity that same dictators intense jealousy of

Falun Dafas popularity the inherent conflict between the communist regimes savage political

ideology and its polar oppositemdashFalun Dafas principles of Truthfulness Benevolence

Forbearance and the very nature of communism which to sustain itself requires periodically

labeling a small segment of the population as the class enemy to struggle against52

The Chinese crackdown on Falun Gong practitioners involved a ban on practicing it by the

Chinese Communist Party whose members as aforementioned were interestingly initially

adherents to the movement in significant numbers Indeed the party was divided from within

over their stance on the movement The government formulated an ―anti-cult law a few months

after issuing a warrant for the founderlsquos arrest ―During the first two years of the crackdown

between 150 and 450 group leaders and other members were tried for various crimes and

sentenced to prison terms of up to 18-20 years53

To this day ―central leaders turn a blind eye to

48

httpwwwamnestyorgenlibraryassetASA170112000en7a361a8e-df70-11dd-acaa-

7d9091d4638fasa170112000enhtml 49

httpwww2ohchrorgenglishissuesdefendersdocsAHRC1644Add1_EFSonlypdf 50

httpwwwfaluninfonettopic22 51

httpwwwamnestyorgenlibraryassetASA170112000en7a361a8e-df70-11dd-acaa-

7d9091d4638fasa170112000enhtml 52

httpwwwfalundafaorgengfaqshtmlpersecution 53

httpfpcstategovdocumentsorganization67820pdf Page 4

UNHRC 15 of 44

local methods of suppression against unrepentant practitioners including the reported use of

torture54

Also worth noting is the fact that Chinalsquos judicial system has been alleged to be anything but

conducive to providing justice to those using the system Indeed it is a repressive tool used by

the government to silence dissent China with its vast land mass and various provinces and

municipalities must work hard to keep its Centre strong Scores of individuals who are more

obscure than human rights activists and such are imprisoned by the government while ironically

seeking justice It has long been the custom for people of the countryside to seek justice in

Beijing if they felt that their local authorities had treated them unfairly However modern China

has not taken kindly to this tradition Local authorities are evaluated on the basis of the number

of complaints the Centre receives about them Thus they have a vested interest in thwarting the

reports of any complaints about them to Beijing Those who complain are whisked off to black

jails where ―detainees are denied access to legal counsel and in most cases contact with family

and friends They ―are kept under constant surveillance and subject to often arbitrary physical

and psychological abuse55

Chinalsquos record with regard to political prisoners and its tradition of suppressing dissent are

exacerbated by the sheer scale on which dissent is thwarted The aspect of potential torture of

prisoners further complicates the issue It is troubling that the issue of Chinese political prisoners

only gained international prominence with the case of Mr Liu Xiaobo It is not the only nation in

the world to adopt such strict policies in order to further its own ideology and the committee will

do well to ruminate upon how this tradition can be discontinued so as to allow people their

essential political freedoms

The Infringement of Rights in the Conflict with Tibet

Despite the furor that has been inconsistently directed towards its human rights record China

continues to impose tightening restrictions on rights of expression association and assembly

The Chinese government carries on devising social and economic changes that retain its firm

authority over its citizens which in turn enables a host of human rights violations In the context

of Tibet China has failed to address the grievances of the people there who have been made

victims of social discrimination and have unequal access to opportunities Scores of Tibetans are

marginalized and detained for their religious inclinations which are further suppressed by the

imposition of intense patriotic educationlsquo campaigns whereby socialism is furthered and all sorts

of religious or individualistic tendencies are thwarted

54

Ibid Page 5 55

httpwwwhrworgreports20091112alleyway-hell-0 Page 4

UNHRC 16 of 44

Despite its totalitarian approach China refuses to accept responsibility for the issue Instead it

blames westernlsquo forces for trying to instigate separatism56

The indifference on the part of

China with particular regard to Tibet is apparent with Chinese authoritieslsquo continuous rejection

of ―inconvenient requests by UN human rights experts for visits to the Tibet Autonomous

Region57

During 1912 and 1951 Tibet underwent a period of de facto independence58

While it was still

territorially a part of China it enjoyed relative freedom in its political discourse Tibetan

autonomy was confined within the context of Chinese suzerainty and should not be interpreted

as unrestrained political independence Since 1951 however the Chinese government has taken

steps to ensure its absolute and undeniable dominance over Tibet from which emanates the strife

under discussion Gross violations of human rights have taken place in China administered by

officials with the purpose of cultivating consent with regard to its control over the region

Suppression has led to the inevitable extensive discontent in Tibet a fury which was unleashed

in 2008 The Tibetan unrest of 2008 was a series of protests and demonstrations - not merely in

the Tibet Autonomous Region but elsewhere as well - that later transformed into rioting burning

looting and even killing59

The rioters set fire to state vehicles and clashed violently with the

police installed in the region The crackdown of Chinese authorities in response to the riots was

severe resulting in deaths on both sides and mass imprisonment by state authorities The degree

to which human rights were violated and abused during this crackdown cannot be overstated

The Chinese also revoked the freedom of sharing of information and imposed a ban on the entry

of media officials in the region to contain

information about the unrest and play down

protests60

A Tibetan Government in Exile has existed in India

since 1959 established by the 14th

Dalai Lama61

This Central Tibetan Administration considers the

issue as an illegitimate military occupation by the

Chinese state The Administration works with the

agendas of restoration of freedom in Tibet and rehabilitation of Tibetan refugees

Historical facts refute such a fallacy however The simple reality that the installation of the 14th Dalai Lama

needed the approval of the national government is sufficient proof that Tibet did not possess any independent power

during that period ndash (httpwwwchinaorgcne-whitetibet9-2htm)

56

httpwwwunhcrorgrefworldcountryAMNESTYCHN49b8dfc11a0html 57

Ibid 58

Grunfeld A Tom Reassessing Tibet Policy 2000 59

httpwwwnytimescom20080316worldasia16iht-tibet111134870html 60

Watts Jonathan Branigan Tania (March 18 2008) Tension rises as armed police mass in capital The

Guardian (London) Retrieved November 1 2011 61

httpwwwtibetnetenindexphpid=14

UNHRC 17 of 44

The censured freedom of expression is one of the multiple infringements on rights that are

imposed by China on Tibet Tibetans are denied the basic right to articulate their views through

political discourse Human rights activists advocate the freedom of speech for Tibetans under the

existing and future political arrangements Religious and political figures in Tibet are placed

under house arrest limiting their freedom of movement (in contradiction to article 13 of the

Universal Declaration of Human Rights)62

As was highlighted during the unrest in 2008 China

has often stripped the Tibetan population of its fundamental rights to associate and assemble In

2000 nine Tibetan prisoners in Kandze were charged for participating in a peaceful protest to

five-year prison terms in October 1999 (which were later increased to ten-year terms)63

This example leads us to another crop of abuse conducted overtly by Chinese authorities

arbitrary detention Article 9 of the Universal Declaration of Human Rights reads ―No one shall

be subjected to arbitrary arrest detention or exile64

Chinese law however permits authorities

to detain persons without formally arresting or charging them and persons may be sentenced

administratively to up to 3 years in reeducation-through-labor camps and other similar facilities

without a trial

Chinese authorities have been unresponsive to concerns expressed by the United Nations

Working Group on Arbitrary Detention No counter-explanation was given either over the case

of three Tibetans who had their sentences extended for staging a peaceful political protest during

the Working Groups visit to Drapchi in October 1997 despite international pressure65

Infinite

examples of arbitrary arrests and detentions exist in China international authorities have called

on China to cease this practice and release such detainees immediately absent evidence that they

have engaged in criminal acts No state can or should be able to hold anyone for engaging in

peaceful political activity All humans

should be granted internationally recognized

due-process protections which includes the

right to be informed of the charges leveled

against them66

The question of whether

these detainees are given an impartial trial if

one at all is not even raised

In addition to the arrests carried out in

violation of international law there are

grave evidences of abuses during detention

62

httpwwwhrworgnews20000612human-rights-violations-tibet 63

Ibid 64

httpwwwunorgendocumentsudhr 65

httpwwwhrworgnews20000612human-rights-violations-tibet 66

httpwwwhrworgnews20000612human-rights-violations-tibet

UNHRC 18 of 44

Incidences of beatings at time of arrest and torture (including the administration of electric

shocks and deprivation of food and medical treatment)67

during custody are widely reported

These are not isolated cases rather the product of a holistic policy of dealing with political

dissidents In one notable incident in May 1998 political prisoners in Drapchi staged major

protests to coincide with a visit from a European Union delegation The protests were non-

violent but the authorities reaction was severe several protestors were shot at and one monk

Lobsang Gelek subsequently died68

The Convention Against Torture (CAT ratified by China in 1988) requires the state to prevent

torture and punish those in violation of the law China has not amended its own laws to comply

with even the first article of CAT69

Such practices explicitly stand in contempt of Article 5 of

the Universal Declaration of Rights which censures the use of torture or cruel treatment as

punishment Dr Manfred Nowak the UN Special Rapporteur on Torture stated that ―he was

struck by the strictness of prison discipline and a palpable level of fear and self-censorship when

talking to detainees following his brief assessment of Chinese and Tibetan prisons in 200570

The committee will be looked upon to review ways in which the situation can be monitored more

carefully and what responses if any can be cultivated to impede similar future actions by

China

The continued violations of religious freedom and implementation of policies designed to

diminish religious practices by the State to serve its political needs is a cause of concern Again

referring to the Universal Declaration of Human Rights Article 18 reads ―Everyone has the right

to freedom ofhellipreligion this right includes freedomhellipto manifest his religion or belief in

teaching practice worship and observance71

The policies implemented by Chinese authorities

through use of coercion violent repression and imprisonment impinge upon the freedom of

Tibetans to practice their religion freely China has also strictly enforced re-education programs

for dissident factors within the state The program is aimed at ―combating separatism protecting

stability and promoting development and is intended to reform the political ideology of people

who refuse to accept state control of what they perceive as vital aspects of their religious lives

and beliefs The committee will be expected to deliberate upon the protection of religious

freedom and practices of individuals as well as the validity of these re-education programs in

light of human rights and liberties

Tibet is not the only region where political tensions surrounding autonomy run high The

Kosovo-Serbian conflict is pertinent to recall The Republic of Kosovo declared itself to be an

independent entity on February 17 2008 As of 11 October 2011 85 UN states recognize the

independence of Kosovo However Serbia maintains that Kosovo is a UN governed entity under

67

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 68

httpwwwfreetibetorgabouttorture 69

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 70

Ibid 71

httpwwwunorgendocumentsudhr

UNHRC 19 of 44

its sovereignty Russia and China are among those who do not recognize the Republic while the

USA UK and France have recognized Kosovolsquos declaration of independence This highlights the

rift between the United Nations Security Council over the issue The case of Tibet is all the more

important in light of the fact that many such pockets exist in the world struggling for self-

determination

Media Links

httpwwwfreetibetorgnewsmedia2008-protests-summary

httpwwwguardiancoukworldgallery2008mar19tibetchinapicture=333178281ampindex=7

Chinarsquos Violation of Ethnic Minority Rights

One of the greatest blemishes on Chinalsquos human rights record is in the area of ethnic minorities

and the extent to which China protects ethnic minority rights On paper Chinalsquos policies are

based on ethnic equality and regional ethnic autonomy Ethnic minorities are supposed to be

benefitting from preferential policies in the political economic cultural and educational spheres

However the ground realities are infinitely different Questions have been raised over the extent

to which the government fairly provides services to these minorities and allocates resources

equally to them The Chinese government is seen to largely prefer its Han majority The

minorities claim they are exploited for their resources and in turn not even provided with the

same level of social services as the Han people China is an atheistic government and the fact

that many ethnicities garner their identity in major part from their religious affiliation leads to a

precarious situation The Mongols Tibetans and Uighurs all come to mind when discussing the

issue of China and ethnic minority rights

―Everyone is entitled to all the rights and freedoms set forth in this Declaration without

distinction of any kind such as race colour sex language religion political or other opinion

national or social origin property birth or other status Furthermore no distinction shall be

made on the basis of the political jurisdictional or international status of the country or

territory to which a person belongs whether it be independent trust non-self-governing or

under any other limitation of sovereignty

- Article 2 Universal Declaration of Human Rights

The International Convention on the Elimination of Racial Discrimination defines racial

discrimination as any distinction exclusion restriction or preference based on race colour

descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the

recognition enjoyment or exercise on an equal footing of human rights and fundamental

UNHRC 20 of 44

freedoms in the political economic social cultural or any other field of public life72

It is due to

this that the international community has adopted the norm of subsuming ethnicity under the

terminology of race

―The Peoples Republic of China is a united multi-ethnic country So far 56 ethnic groups have

been identified and recognized by the central government The population of various ethnic

groups differs greatly While the Han ethnic group has the largest population and that of the

other 55 ethnic groups is relatively small so they are customarily referred to as ethnic

minoritieslsquo According to the fifth national census conducted in 2000 the population of all the

55 ethnic minority groups totaled 10449 million accounting for 841 percent of the total

population of China73

Chinas official 55 minorities are located primarily in the south west

and north of China Only Tibet and Xinjiang have a majority population of official minorities

while all other provinces municipalities and regions of China have a Han majority

One of Chinalsquos autonomous regions is the Xinjiang Uighur Autonomous Region (XUAR)

located in western China The area is vast accounting for one sixth of Chinalsquos land and houses

around 13 major ethnicities including the Uighurs who are a predominantly Muslim people with

origins in Central Asia The Uighurs have had strained ties with the state and have often resisted

Chinese authority74

In turn the Chinese government has reacted sometimes violently against

restless factions in the region One of the most passive aggressive forms of response on the part

of the Peoplelsquos Republic has been the encouragement of the migration of the Han people ndash

Chinalsquos ethnic majority ndash to the XUAR75

Around 90 of Xinjiangs population comprised of

Uighurs in 1949 now it is estimated that Uighurs make up only about 45 of the population76

The policies in Xinjiang are said to be designed to ―promote economic development not

demographic change In reality though the influx of migrants has amplified Uighur discontent

as Han and Uighurs compete over limited jobs and natural resources77

The United Stateslsquo

Congressional-Executive Commission on China reported that in 2006 the XPCC (Xinjiang

Production and Construction Core) reserved approximately 800 of 840 civil servant job openings

for Han Chinese78

One of the causes of the Han monopoly in the employment sector is the

linguistic advantage afforded to them and perpetuated by the education system As part of its

efforts to implicitly impose a unified culture the language policy was altered by the state with

an increased focus on use of Mandarin in schools at the expense of the local languages

Methods of education special to the ethnic peoples of the XUAR including the Muslim Uighurs

are suppressed For example a campaign by the PRC in 2001 targeted religious teachers and

72

httpwww2ohchrorgenglishlawcerdhtm 73

httpenglishgovcnofficial2005-0728content_18127htm 74

httpwwwcfrorgchinaeast-turkestan-islamic-movement-etimp9179 75

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p8 76

httpnewsbbccouk2hiasia-pacific3330803stm 77

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p4 78

httpwwwcolumbiaeducunewsclips20080801UighursTWPOSTpdf

UNHRC 21 of 44

endeavored to sever ties between mosques and groups involved in allegedly ―separatist

activities Around 8000 imams were required to undergo ―political reeducation in this regard

and become ―patriotic religious personalities Ethnic minorities are educated in ways that do not

allow them to learn their own languages or practice their own religion In 2001 for example a

Muslim girl was expelled from school for praying 79

Moreover in an attempt to further its socialist agenda and bind ethnic minorities together

minority cultural activities are often hindered In its place nationalistic values are given a

premium and integrated into society so as to tie the entire country in a unified Chinese foldlsquo

Resultantly an asymmetry with regards to the provision of services and protection of cultural

identity can be found in almost every ethnic minority region in the country The repression

against minorities has wider implications on the human rights situation for all This leads to

creation of a vindictive attitude among the minorities not only against the government but also

the Han majority

In July 2009 this attitude manifested itself in

the form of severe riots between the Han and

Uighur communities in Xinjianglsquos capital city

Urumqi Ethnic tensions elevated to the point

that police involvement was made necessary

According to Chinese state media at least 150

people were killed and more than 800 were

injured The riots were reportedly sparked by a

Uighur protest over the ethnically motivated

killing of two Uighur workers in the southern

province of Guangdong

On the topic of allegations of separatism it is interesting to note that post 911 it has been noted

that the Chinese government has used concerns about terrorism as a method for suppressing

ethnic activity This is possible through the characterization of certain ethnicities as having

fundamental leanings The Muslim Uighurs fell under fire for this very reason after the

September 2001 attacks

One of the ways that the Chinese government with its Han leanings has asserted its presence in

the region is through the smokescreen of the XPCC The Peoplelsquos Liberation Army and the

XPCC are present in the region per the government to ―consolidate border defense accelerate

79

wwwminorityrightsorgdownloadphpid=29 Page 30

UNHRC 22 of 44

Xinjianglsquos development and reduce the economic burden on local governments and the local

people of all ethnic groups80

The heavy militarization of ethnic minority

regions also enables the Chinese government

to quickly respond to skirmishes between the

minorities and the Han For example clashes

between the Uighurs and the Han in the

XUAR are quickly clamped down upon The

response by Chinese authorities always

focuses on the minority groups in the region

The typical response includes a period of

strike hardlsquo security measures during which the minorities are subjected to police patrols of

crowded areas identity checks street searches increased criminal investigations and accelerated

trials The measures also include mandatory political indoctrination classes for the Uighur

population Swift Chinese response to ethnic dissidence precludes the possibility of trying

protestersrioters under due process This phenomenon also contributes to the controversy of

China and its policy of arbitrary imprisonment

Essential to any countrylsquos social progress is the protection and provision of the basic rights to all

its citizens For a country like China which has a significant standing in the international

community the degree to which human rights are upheld comes under added scrutiny Minorities

need to be guaranteed provision of not only fundamental rights but additional ones that grant

them equal opportunities

Recent Developments

3 November 2010 UN Secretary General pushes China on human rights

Ban Ki-moon the United Nations secretary general has called on China to respect human rights

after critics accused him of dodging the issue on a trip to Beijing The UN secretary general met

Hu Jintao the Chinese president but failed to challenge Mr Hu on the imprisonment of Liu

Xiaobo the democracy activist who was awarded this years Nobel Peace prize and raise the

issue of human rights81

80

httpwwwchinaorgcne-white200305269htm 81

httpwwwtelegraphcouknewsworldnewsasiachina8107148UN-Secretary-General-pushes-China-on-human-

rightshtml

UNHRC 23 of 44

5 November 2011 Yeqing Ji from Shanghai China will most likely not be able to have children

after she said two forced abortions physically impaired her uterus82

8 September 2011 The Chinese government has renewed Googlelsquos license to allow it to

continue operating its local website in the country83

13 November 2011 Seven months ago

Chinese police detained the countrylsquos most prominent artist Ai Weiwei at the airport and drove

him to a hidden location It was the beginning of what is to be a two-and-a-half month nightmare

for the architect and sculptor who is also a former darling of the Communist Party who later

turned into an outspoken government critic Ai was held on vague charges of economic crimes

was kept in isolation and subjected to Kafka-esque interrogations84

April 19 2011 Amnesty International a 21-year-old monk Phuntsog set himself on fire in an

apparent anti-government protest in March 2011 Instead of putting out the flames Chinese

police beat the young monk creating huge resentment in the monastery85

At least 11 ethnic

Tibetans have been detained for protesting against the event and against government policies

They are at risk of torture and other ill-treatment86

29 May 2011 300 Tibetan monks detained in Kirti monastery by Chinese security forces87

15 September 2011 Chinese Uighurs economic fears

Amid ethnic tensions minority regards modernization plans in Xinjiang as favoring Han Chinese

migrants88

20 November 2011 Another of Chinalsquos minorities the Hui Muslims in Ningxia do not feel

stigmatized

―There is an important reason why Hui and Han Chinese get along with each other Unlike

Muslims of the other ethnic minorities like Uighur Kazakh Kyrgyz and Tajik the Hui Muslims

speak Mandarin just like the Hans89

82

httpabcnewsgocomBusinesswoman-china-forced-abortions-leaves-unable-

childrenstoryid=14880884Tsia7LIk6so 83

httpwwwbbccouknewsbusiness-14832392 84

httpwwwthedailybeastcomnewsweek20111113ai-weiwei-speaks-out-on-his-detentionhtml 85

httphradvorgaggregatorsources10 86

httpwwwamnestyorgenlibraryassetASA170212011end75f7611-be66-4d5a-9391-

c80c43501d56asa170212011enhtml 87

httphumanrightshouseorgArticles16503html 88

httpwwwaljazeeracomvideoasia20110920119158016969449html 89

httpwwwtodayszamancomnews-263322-chinas-hui-muslims-do-not-feel-stigmatizedhtml

UNHRC 24 of 44

Conclusion

The United Nations Human Rights Council at LUMUN 2012 will be looked upon to provide a

framework for the resolution of these issues in a universal context The scope of the issues

should be expanded and applied to countries other than China The committee will have to make

recommendations which have universal application and resolve all aspects of the issue

comprehensively For any queries related to the study guide please do contact either (or both)

the committee directors at the given addresses

UNHRC 25 of 44

Topic Area B Abolishing the Death Penalty

Introduction to the Topic Area

The death penalty is formally defined as the execution of an offender sentenced to death after

conviction by a court of law of a criminal offenselsquo90

The concept of a capital crime is subjective

and states have made use of this practice in response to multiple forms of crime The use of the

death penalty has produced much controversy with regard to its apparent violation of

fundamental human rights as delineated in the Universal Declaration of Human Rights and

subsequent human rights charters and treaties It is asserted that the use of death penalty is in

contravention to the peopleslsquo right to life promised to every individual under Article 3 of the

Declaration91

Moreover Article 2 of the Charter of Fundamental Rights of the European Union

lucidly bars the imposition of death penalty as a form of punishment92

Arguments against the

use of death penalty are also made on the grounds of inhumane methods which are employed to

see out the process Historically multiple methods have been used which include death by

hanging severing of the head lethal injection shooting and electrocution93

94

As a response states have made keen efforts to abolish

the death penalty particularly in the last two decades as

can be interpreted from the graph on the right which

represents the number of states that have abolished the

death penalty Countries belonging to the European

region with the exclusion of Russia and Belarus have

sought to revoke the use of the practice The death

penalty is most commonly seen to be a formal practice

in most of the developing countries The trend is

apparent in Latin America Africa and Asia

96 countries have formally abandoned the use of death penalty 58 countries allow the use95

Other states have abolished the penalty in practice but the laws remain in place for the

imposition of the penalty as a response to certain crimes The imposition of the death penalty has

90

httpwwwbritannicacomEBcheckedtopic93902capital-punishment 91

httpwwwunorgendocumentsudhr 92

httpwwweuroparleuropaeucharterpdftext_enpdf 93

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffle

re-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 94

httpwwwdeathpenaltyinfoorgmethods-execution 95

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf

Figure 1 (Drag to enlarge)

UNHRC 26 of 44

seen a decline over the recent years with a fall in the number of executions that take place

annually It would however be incorrect to assume that the practice is not prevalent or widely in

effect Amnesty International reported that at least 2024 new death sentences were imposed in 67

countries in 2010 Moreover there were at least 17833 people sentenced to death worldwide at

the end of 201096

Again these are minimum figures which are the safest that can be inferred

from the given research There were 527 known executions carried out in 2010 globally97

This

figure however does not include the number of executions that took place in China where

analysts believe that more than a thousand people were put to death in the past year

The statistics represent the number of people executed through capital punishment One way to

formally define capital punishment is to regard it as the state sanctioned killing of an individual

through a judicial process as a punishment for a crime (defined as a capital crime by the state)98

Capital punishment is the most obvious and prevalent manifestation of the death penalty It is

often perceived as a statelsquos right in order to preserve law and order against any individual who

engages in serious crimes that threaten other individuals or the state Those who advocate against

the use of capital punishment label it as a symptom of a culture of violence not a solution to

itlsquo99

The controversy surrounding the topic is based on the legal ethical and moral acceptability

of the statelsquos right to an individuallsquos life The debate entails several social and economic factors

some of which will be reviewed in closer detail in the relevant section of this guide

One of the most striking aspects related to the issue is the imposition of the capital punishment

on juveniles The sentencing of juveniles to death is in clear breach of international law The

morality and validity of such a practice is often called into question and has been put under

relentless scrutiny despite all of which the practice is still carried out in a number of countries

Historically the United States China and Iran have the worst records relating to juvenile death

sentences100

The study guide also includes a separate section for the case of juveniles in which

the legal and social aspects of the problems are detailed

As stated states have made use of the death penalty to punish crimes of varying natures The use

of the death penalty is reserved for only the most seriouslsquo crimes as put forth in international

law101

The notion of a capital crime however is a subjective one states that have doled out

death sentences have defined it differently In certain countries the death penalty is only used to

charge criminals accused of war crimes In other countries the penalty is reserved for crimes like

96

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf 97

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010 98

httpusersrcncommwooddeathpenhtml 99

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 100

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 101

httpwwwunorgdocumentsecosocdocs1995e1995-78htm

UNHRC 27 of 44

murder rape or even robbery States also use the death penalty against individuals who are guilty

of treason The issue however is that many states practicing the death penalty impose the

punishment even when the crimes do not meet the threshold for the aforementioned most

seriouslsquo crimes The ability of states to define what constitutes as a capital crime has led to states

abusing their powers as has been observed in the sentences ordained by military courts

Moreover even the radicals who make the argument of the punishment fitting the crime agree

that in many instances individuals have been executed for softlsquo crimes crimes that were

certainly not tantamount to charges of murder or crimes against humanity The issue of apparent

violations of human rights is further exacerbated in these instances The study guide will discuss

the universal crimes that have resulted in the awarding of the death penalty and examine the

issue further The committee will be expected to discuss the feasibility of drawing up an

international definition of crimes which in isolated instances perhaps may be appropriate for a

sentence like the death penalty

Another pertinent aspect surrounding the debate is that of extrajudicial killings The execution of

a person by state authorities without the authority of a judicial proceeding is termed as an

extrajudicial killing Many states have used extrajudicial killings to establish their authority and

order without having to wade through the legal process By doing so they have deprived scores

of people of their fundamental right to free and fair trials Governments have also employed this

tactic to exercise political aggression and to suppress dissent A particular point of concern is the

fact that some states have made use of these killings even when they have officially revoked the

imposition of the death penalty Extrajudicial killings are carried out persistently in many

countries ndash the list includes countries like Iran Iraq Israel Philippines102

Most recently the

killing of Anwar al-Awlaki and Samir Khan in Yemen by a sanctioned National Security Council

move by the USA was an example of states embarking on such paths to eliminate threats to

national securitylsquo103

102

Multiple citations for each country can be found in the second paragraph article titled Extrajudicial killinglsquo on

Wikipedia 103

httpwwwtelegraphcouknewsworldnewsbarackobama7564581Barack-Obama-orders-killing-of-US-cleric-

Anwar-al-Awlakihtml

UNHRC 28 of 44

Wrongful convictions lead many to believe in the inherent incapacity of the death penalty to

serve justice On September 21 2011 US citizen Troy Davis was executed in Georgia after

which seven of the nine witnesses who testified against him in the case that led to his execution

recounted or retracted their evidences A petition with nearly one million signatures was put

forth to reconsider his case it was rejected On the same day a 17 year old boy was publicly

hanged in Iran for killing a popular athlete his justification based on self-defense was ignored

Also on the same day a Pakistani national was executed in China on grounds of drug trafficking

an offence that does not often result in capital punishment The need for the resolution of this

issue is pressing and the committee needs to deal with all aspects of the problem in a

comprehensive and enduring manner104

Capital Punishment

In 2010 23 countries implemented capital punishment A total of 527 executions (plus the 1000+

carried out in China alone) were known to have taken place with Iran Yemen USA and North

Korea meting out a significant number of sentences105

The figure is lower than the records

computed for years past There are more states which are now abolitionist either in law or in

practice with regard to the imposition of the punishment Gabon was officially the last country

to rescind the practice while bills calling for an end to capital punishment have been presented

to parliaments in Lebanon Mali Mongolia and South Korea106

Renewed efforts are

104

httpwwwamnestyorgennews-and-updatesus-executes-death-row-prisoner-troy-davis-2011-09-21 105

httpwwwguardiancouknewsdatablog2011mar29death-penalty-countries-world 106

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010

UNHRC 29 of 44

simultaneously being made on the international front to implement laws against capital

punishment A third resolution establishing a moratorium on the use of death penalty passed the

UN General Assembly on December 21 2010107

Despite the increasing momentum towards an eventual elimination of the practice the number of

executions taking place annually is a cause of major concern Advocates of the death penalty

assert that the practice is an effective means of deterring crime in society Public executions are

often held in Iran Afghanistan and Palestine for example to demonstrate the fate awaiting

those who commit similar crimes108

Arguments are made on the grounds of justice that it is

proper and fair to take an eye for an eye and a life for a life and that some individuals deserve

it for the crimes they commit

Those opposing the practice question the morality of an action sanctioned by the state which

endorses deprivation of the right to life a fundamental human right under the Universal

Declaration of Human Rights109

There are inescapable flaws within legal systems which are

aggravated by discrimination prosecutorial misconduct and inadequate legal representation

Moreover the risk of executing the innocent can never be eliminated110

An alternative is

presented in the form of imprisonment for life without parole which results in a parallel debate

is imprisonment for life a viable surrogate to the practice of death penalty A thread from this

debate also relates to the economic feasibility of carrying out a death sentence as opposed to the

feasibility of imprisonment for life

Deterrence

Capital punishment is often propagated as an adequate approach in the deterrence and prevention

of crime The logic is that if murderers are sentenced to death potential murderers will think

twice before killing for fear of losing their own life The deterrence theory presumes that the

once the punishment for a certain crime is established the criminal by committing the crime

voluntarily assumes the risk of receiving the prescribed punishment for the crime Only when the

most severe punishment has been set will there be a possibility of an individual evaluating their

actions in light of the consequences111

107

httpwwwundemocracycomA-RES-62-149pdf 108

httpwwwamnestyorgennews-and-updatessharp-rise-public-executions-iran-executes-first-juvenile-

offenders-2011-2011-04-27 109

wwwunorgendocumentsudhr 110

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 111

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 30 of 44

The death penalty it is asserted ensures that convicted criminals do not offend again moreover

it is deemed to be a just penalty for atrocious crimes It is further alleged that many criminals

who are set free even after lengthy sentences regress and go on to commit heinous crimes

Therefore there should never be the possibility of a release clause112

The deterrence theory is modeled on the grounds of human psychology logic and rationale As a

professor of jurisprudence Ernest van den Haag PhD wrote ―Common sense lately bolstered

by statistics tells us that the death penalty will deter murder if anything can People fear nothing

more than death Therefore nothing will deter a criminal more than the fear of death These

statements were further validated by a US Supreme Court Justice who said on record that

Prima facie the penalty of death is likely to have a stronger effect as a deterrent to normal

human beings than any other form of punishmentlsquo113

Numerous studies have been conducted on

the subject with varying results One of the most established studies was conducted in USA

using a panel data set of over 3000 counties from 1977 to 1996 which concluded that on

average one death sentence resulted in 18 fewer murders114

Delegates will be expected to be

familiar with other similar studies

These studies are commonly refuted as not crediblelsquo by opponents of the capital punishment

who also deny the correlation between crime and death penalty as a fabricated relationship which

cannot be empirically established115116

A study of the relationship between capital punishment

and the incidence of murder was conducted for the UN in 1988 and updated in 2002 The

conclusion was ―The investigation has not provided scientific proof that executions have more

deterrent effect than life imprisonment It is unlikely that such evidence will ever come

Deterrence hypothesis finds no support in the survey117

Another counter-argument asserts that crime is still a persistent feature of the societies that

continue to award the death penalty while many of the abolitionist states enjoy low crime rates

This can be evidenced by comparing the crime rate in USA or Pakistan with that of Canada or

some European state In Canada for example the homicide rate per 100000 fell from a peak of

309 in 1975 the year before the abolition of the death penalty for murder to 241 in 1980 and

in 2003 27 years after abolition the homicide rate was 173 per 100000 44 per cent lower than

in 1975118

112

httpwwwdeathpenaltyinfoorgfacts-about-deterrence-and-death-penalty 113

httpdeathpenaltyproconorgviewresourcephpresourceID=002000 114

httpdeathpenaltyproconorgsourcefilesThe20Deterrent20Effect20of20Capital20Punishmentpdf ndash

Delegates should carefully examine certain parts of this document to establish the credibility of the assertions made

They should also invest in trying to locate studies that refute the assertions made in this and similar studies 115

httpwwwdeathpenaltyinfoorglaw-enforcement-views-deterrencelawenforcement 116

httpwwwdeathpenaltyinfoorgDonohueDeterpdf 117

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 118

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml

UNHRC 31 of 44

The lack of evidence on the production of a unique deterrent effect points to the danger of

relying on the deterrence hypothesis as a basis for public policy on the death penalty

Retribution amp Morality

An important terminology that delegates need to familiarize themselves with is that of

―retributivism119

It is defined as ―a policy of criminal justice that sponsors the punishment of

criminals in retribution for the harm they have inflicted120

Criminals deserve to be punished in

proportion to the gravity of their crime regardless of whether the victim or anyone else desires

it we may all deeply regret having to carry out the punishment but consider it warrantedlsquo is

what many say in defense of the theory121

The need for the establishment of a visibly just state arises from the potential risks of not having

one As has been visible in many developing countries with shaky legal systems when criminals

are not adequately punished for their unlawful behavior the public takes the law into its own

hands and deals out vigilante justice It is asserted that retributivism is essential for a functioning

society where individuals respect the supremacy of law

The concept of retribution in society is also grounded in religious beliefs The concept of an eye

for an eye has been a part of all three Abrahamic traditions However in the modern world it is

Islamic nations that still retain the practice based on these grounds Similar traditions can be

found in Hinduism Christianity and Buddhism as well as other religions in different parts of the

world In many non-secular countries the constitutions and state laws are derived from religious

doctrines

Opponents dismiss this aspect of the argument as being emotionally charged with little rational

logic to support the contention They claim that the establishment of capital punishment gives

birth to a culture of violence endorsed by the state It perpetuates the cycle of aggression and

brutality something which the state should be actively inhibiting not endorsing

Wrongful Convictions

The death penalty carries with it the danger of wrongfully convicting an innocent person for

crimes he did not commit There is the potential for capital punishment to evolve into sheer

miscarriage of justice as in certain circumstances states are often seen to rush the trials and

convict the accused hastily This practice takes foremost apparently in military courts often in

119

Cavadino M amp Dignan J (1997) The Penal System An Introduction (2nd ed) p 39 London Sage 120

httpdictionaryreferencecombrowseretributivism 121

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 32 of 44

the developing or lesser-developed countries where the system of law is not properly established

It is not however exclusive to these countries Examples can be drawn from countries like

Philippines Thailand Iran and Palestine to name just a few where executions are carried out at

alarming pace removing the possibility of reviews

On 15 August 2004 Atefah Rajabi Sahaaleh was hanged in a public square in the Iranian city of

Neka Her death sentence was imposed for adultery and crimes against chastity122123

Atefah

was executed a week after the trial was run Following the execution the Judge for the case was

arrested for investigation by the Intelligence Ministry The media reported that in addition to the

confession of his rape of Atefeh Judge Rezai who served as judge jury and executioner also

confessed to torturing her during interrogations to extract names of others she had relations with

No transcripts from court proceedings were recorded The State alleged that Atefah was 22 at the

time of her execution A witness later claimed The judge just looked at her body because of

the developed physique and declared her as 22124

ndash her birth certificate revealed she was born

in 1988 Furthermore Atefah did not have access to a proper defense where she could contest

charges leveled against her This is one example of many such cases of miscarriage of justice

Something that recurs in these cases is the failure of the police or prosecuting authorities to

prevent the use of unreliable witnesses the misuse of evidence or confessions and the provision

of inadequate defense representation The advent of DNA profiling and the use of it as positive

evidence in criminal cases has resulted in the exoneration of multiple death row inmates on

grounds of forensic evidence or lack thereof Since 1973 138 people have been released from

death row in the United States after it was proven that they were innocent125

In 2009 Paul

House was cleared of murder and exonerated in Tennessee USA after having served 22 years

on death row His innocence was proclaimed in light of substantial additional DNA testing and

further investigationlsquo 126

Amnesty International has noted examples of wrongful convictions from elsewhere as well

including Jamaica Japan China Nigeria and Tanzania127

Paul G Cassell a former law clerk to

the Chief Justice of USA stated the mistaken release of guilty murderers should be of far greater

concern than the speculative and heretofore nonexistent risk of the mistaken execution of an

innocent personlsquo highlighting the case made by those who advocate the death penalty even in

light of wrongful convictions128

122

httpwwwcosmolearningcomdocumentariesexecution-of-a-teenage-girl1 123

httpnewsbbccouk2hi5217424stm 124

httpnewsbbccouk2hi5217424stm 125

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 126

httparticlescnncom2009-05-13justicetennesseeexonerated_1_death-row-inmate-dna-evidence-house-

arrest_s=PMCRIME 127

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 128

httpdeathpenaltycurriculumorgstudentcaboutargumentstestimony3bhtm

UNHRC 33 of 44

Alternative to Death Penalty

All abolitionist states have reverted to the practice of sentencing criminals to life imprisonment

(some without parole) which is also termed as death by incarceration Widely regarded as a more

humane course of action life imprisonment is also alleged to be a more economical practice

While ensuring public safety by keeping criminals away from society this system also saves the

lives of innocent people who have been falsely or wrongfully convicted The setup inhibits and

curbs the cycle of violence while retaining the deterrence factor it is strongly asserted

Advocates for the death penalty are averse towards life imprisonment for a number of reasons

They cite the unreliability of the system as one of the flaws which impedes the possibility of

such a sentence being successful A certain James Moore serves as a valid example in this case

In 1962 James Moore raped and strangled 14-year-old Pamela Moss The victimlsquos parents opted

out of capital punishment for Moore and he was instead sentenced to life in prison without

parole Twenty years later a change in sentencing laws in 1982 renders James Moore eligible for

parole every two years129130

Kenneth McDuff is another example McDuff was convicted and sentenced to life imprisonment

Years later due to the issue of overcrowding in prisons McDuff was released following which

he killed eight more people McDufflsquos example is of an individual from a developed country

with an established legal system in place131

Overcrowding is a feature of prisons in developing

or lesser developed countries In many such states criminals have also been known to easily

break out from penitentiaries

The economic aspect of the debate is murky at best There is a lack of empirical data on the

subject which is why the arguments of both these sides cannot be settled beyond doubt

Advocates of capital punishment insist that the overall costs of the practice are far lesser than the

costs of housing an inmate for a lifetime132

They also suggest that the life imprisonment allows

criminals to conceive new habeas corpus petitions which on legal grounds cannot be rejected

automatically resulting in more trials

On the other hand substantial arguments are made which stress that the cost of legal proceedings

in capital cases is in truth more than that of other cases States and nations spend a significant

portion of the taxpayerlsquos money in meting out such punishments133

Delegates when addressing

this portion of the debate will need to be aware of the financial aspects of the issue as it forms

for many states an important part of whether capital punishment should be revoked or

not

129

httpwesleylowecomcphtmldeter 130

httpwwwnytimescomkeywordparole 131

httpwesleylowecomcphtmldeter 132

Ibid ndash view section titled Capital Punishment and its costslsquo 133

httpwwwamnestyusaorgour-workissuesdeath-penaltyus-death-penalty-factsdeath-penalty-cost

UNHRC 34 of 44

Imposition of Death Penalty on Juveniles

The prohibition on the death penalty for crimes committed by juvenile offendersmdashpersons under

age 18 at the time of the offensemdashis well established in international law specifically in the

Convention on the Rights of Child

ldquoNo child shall be subjected to torture or other cruel inhuman or degrading treatment or

punishment Neither capital punishment nor life imprisonment without possibility of release shall

be imposed for offences committed by persons below eighteen years of agerdquo134

- Article 37(a) Convention on the Rights of Child

ldquoSentence of death shall not be imposed for crimes committed by persons below eighteen years

of age and shall not be carried out on pregnant womenrdquo135

- Article 6(5) International Covenant on Civil and Political Rights

The treaties are a unanimously agreed set of non-negotiable standards and obligations By

acceding to the treaties and ratifying them governments commit to protecting and ensuring

childrens rights and to holding themselves accountable for this commitment before the

international community

Even though the practice of capital punishment on juveniles is relatively rare however in clear

contravention of international law nine countries have executed offenders who were juveniles at

the time of their crimes between 1990 and 2005136

These countries include the Peoples Republic

of China (PRC) the Democratic Republic of the Congo Iran Nigeria Pakistan Saudi Arabia

Sudan the United States and Yemen137

The USA has since moved to implement a ban on capital

punishment for juveniles However in most other countries of the preceding list the practice is

still enshrined in the judicial system Iranlsquos record in particular has been abominable over the last

decade It has carried out 39 executions of persons under the age of 18 since 2005 Presently

over a hundred individuals are placed on death row for crimes committed as juveniles The

executions of Mahmoud Asgari Ayaz Marhoni and Makwan Moloudzadeh became international

symbols of Irans child capital punishment and the judicial system that hands down such

134

httpwww2ohchrorgenglishlawcrchtm 135

httpwww2ohchrorgenglishlawccprhtm 136

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf - This document by the Human Rights Watch

called The Last Holdoutslsquo is a good summary of juvenile executions and should be reviewed 137

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 - Contains a list with

statistics and details of countries which have allowed the imposition of death sentence to juveniles

UNHRC 35 of 44

sentences138139140

Saudi Arabia and China too have questionable records that need to be

scrutinized further

While regional treaties and charters usually substantiate international law the Arab Human

Rights Charter of 2004 is unique among regional and international treaties in that the ban on the

juvenile death penalty in it is not absolute but merely optional141

Furthermore national laws in states that observe such a practice are in violation of

international legally-binding charters In Iran and Saudi Arabia laws usually treat a child the

same way as an adult criminal offender would be treated Article 10(3) of the International

Covenant on Civil and Political Rights emphasizes the need for demarcation between the

handling of children and that of adults in stating ―Juvenile offenders shall be segregated from

adults and be accorded treatment appropriate to their age and legal status142

The definition of a child in these Muslim states is unclear as adulthood is associated with

attainment of puberty which is a relative concept The Committee on the Rights of the Child in

January 2005 censured the Saudi government for its practice of imposing the death penalty on

juveniles terming it a serious violation of the fundamental rights The committee was deeply

alarmed over the discretionary power judges hold to treat juveniles as adults as was stated in

the committeelsquos report Iran too was strongly condemned following the release of an

international report highlighting the dire situation in Iran by the International for Human Rights 143

138

httpwwwfoxnewscomstory0293329798200html 139

httpnewsbbccouk2himiddle_east7130380stm 140

httpenwikipediaorgwikiCapital_punishmentIran 141

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 142

httpwww2ohchrorgenglishlawccprhtm 143

httpwwwfidhorgIMGpdfRapport_Iran_finalpdf

UNHRC 36 of 44

On August 19 2008 Iranian authorities executed Seyyed Reza Hejazi at Isfahan Central Prison

for his role in a murder committed in 2003 when he was 15 Hejazi was tried as an adult by

Branch 106 of the Isfahan General Court even if he did not qualify as one under international

stipulations and sentenced to death on November 14 2005144

In Saudi Arabia Mu`id bin

Husayn bin Abu al-Qasim bin `Ali Hakami was executed on July 10 2007 for a murder he

allegedly committed three years earlier when he was 13 years old145

The judges in these states

because of the implementation of the Sharialsquo law have a large amount of discretion with regard

to their rulings This discretion is often abused in the interrogation and judicial proceedings In

Pakistan authorities hanged Mutaber Khan in Peshawar Central Prison on June 13 2006 on

charges of murder of five people The fact that he was held in the juvenile wing of Peshawar

Central prison and the evidence presented by the accused confirming that his age was below 18

at the time of the killings were not taken into account during the trials and Mutaber was charged

as an adult in the case146

While the above does not cover exhaustively the practice of capitally punishing juveniles the

committee is expected to be well read on the matter The committee will be required to devise

ways to strictly apply the existing international law on the subject to curtail further deaths of

juveniles by states A series of recommendations on better implementation of international

covenants will be expected from the committee Delegates at UNHRC will also have to

familiarize themselves with the stipulations in the national laws of countries practicing juvenile

death penalties (Iran Saudi Arabia Pakistan Nigeria Sudan Yemen and UAE among others) to

discuss how these states are constitutionally able to bend international law and mete out the

illegal punishments

144

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 145

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 146

See FIDH and Human Rights Commission of Pakistan ―Slow march to the gallows and ―Condemned Prisoner

Executed Dawn Newspaper Karachi June 14 2005 httpwwwdawncom20060614nat16htm

UNHRC 37 of 44

Universality of Laws Incurring the Death Penalty

In countries which have not abolished the death penalty capital punishment may be imposed

only for the most serious crimes it being understood that their scope should not go beyond

intentional crimes with lethal or other extremely grave consequences

- Safeguards guaranteeing protection of the rights of those facing the death penalty147

Laws incurring the death penalty or capital crimes have certain uniformity the world over This

is of course barring states that are religiously affiliated and whose law systems are not secular

in nature The list of capital crimes for those states with non-secular legal systems is slightly

different The Human Rights Commission had decided that the imposition in the State party of

the death penalty for offences which cannot be characterized as the most serious including

apostasy committing a third homosexual act illicit sex embezzlement by officials and theft by

force are incompatible with Article 6 of the Covenant Economic offences including

embezzlement drug related offences political offences and robbery were also referred to148

The reason why looking into capital crimes and trying to garner a global impression of them is

important is that the death penalty can only realistically be abolished in a piecemeal way This

process will entail shortening the list of capital crimes The UN formally notes that ―in order

fully to guarantee the right to life provided for in article 3 of the Universal Declaration of

Human Rights the main objective to be pursued is that of progressively restricting the number of

offences for which capital punishment may be imposed with a view to the desirability of

abolishing this punishment in all countries149

The first established death penalty laws date as far back as the Eighteenth Century BC in the

Code of King Hammaurabi of Babylon which codified the death penalty for 25 different crimes

By the 1700s 222 crimes were punishable by death in Britain including stealing cutting down a

tree and robbing a rabbit warren In the 19th

century the death penalty was eliminated for over

100 of the 222 crimes punishable by death 150

In modern times the UN Special Rapporteur on

extrajudicial summary or arbitrary executions has stated that the death penalty should be

eliminated for economic crimes and drug-related offences and that the restrictions to its use

―exclude the possibility of death sentences for so-called victimless offences ndash including acts of

treason espionage and other vaguely defined acts usually described as crimes against the Statelsquo

or disloyaltylsquo and ―actions primarily related to prevailing moral values such as adultery and

prostitution as well as matters of sexual orientation151

147

httpwww2ohchrorgenglishlawpdfprotectionpdf 148

httpwwwunhchrchtbsdocnsf0bc310a747155dff88025655300537faeOpendocument 149

General Assembly resolution 2857 httpwwwunodcorgpdfcompendiumcompendium_2006_part_01_05pdf 150

httpdeathpenaltycurriculumorgstudentcabouthistoryhistoryPDF 151

httpswwwabofimedia24259report10pdf

UNHRC 38 of 44

Contrary to the made recommendations even political dissent warrants a death sentence in

several countries most notably in China and Iran In 2010 nearly 20 Kurdish people were

executed for political offences in Iran The country is known for keeping dissent especially from

the Kurds suppressed Most are executed on the grounds of moharebeh or enmity against God

Moreover challenging the power of the Ayatollah is also punishable by death These charges are

neither explicit nor in line with international guidelines over what crimes are punishable

capitally In Iran judges must handle such cases carefully as Iranian law provides for only one

punishment if an individual is found to be guilty of treason Libya too thwarts political dissent

with firm laws in place for punishing by death those who illegally form groups organizations or

associations against the state152

Saudi Arabia too is worth note for its vaguely phrased laws governing capital punishment

Intentional murder and crimes that spread ―mischief in the land (Fasad fil-ardh) merit death In

2010 the government announced that it had executed 26 people all by beheading Crimes that

―spread mischief include witchcraft and sorcery153

How is one convicted of witchcraft in the

21st century What can the international community do when regarding countries such as these

Treason arguably along with murder is the capital crime that has yet to be phased out by many

countries In some such as Brazil treason during warfare is the only crime for which a person

can be sentenced to death In the Gaza Strip under Hamas any sort of cooperation with Israeli

forces during military actions is also punishable by death In others including Algeria Bahrain

Iran and Malaysia treason is punishable by death in all circumstances The United States too has

federal laws governing treason under which traitors ―shall suffer death154

Child sex abuse is another crime that is widely held to merit the death penalty In Russia for

example according to the Russian Public Opinion Research Center an overwhelming majority

consider the death penalty to be an acceptable punishment especially in relation to molestation

155 In 2009 however Russias Constitutional Court effectively abolished the death penalty by

extending indefinitely a 13-year-old moratorium on capital punishment156

Indonesia has some of the strictest penalties for drug related crimes in the world Roughly half of

those on death row are incriminated with drug-related charges157

In 2008 though the most high

profile executions were of terrorists Three of those found responsible for the 2002 Bali

bombings were executed by shooting158

Generally speaking however a significant proportion of

152

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 153

httpwwwstategovgdrlrlshrrpt2010nea154472htm 154

httpdeathpenaltyproconorgviewresourcephpresourceID=1172 155

httpenrianrutrenddeath_penalty 156

httpwwwreuterscomarticle20091119idUSLJ330478 157

httpwwwnytimescom20080711worldasia11iht-indo114421132html 158

httpnewsbbccouk2hiasia-pacific7718246stm

UNHRC 39 of 44

the executions or death sentences recorded (in 2010) in China Egypt Indonesia Iran Laos

Libya Thailand United Arab Emirates and Yemen were for drug-related offences In December

2010 the amended Anti-Narcotics law came into force in Iran extending the scope of the death

penalty to include additional categories of illegal drugs (for example crystal meth) possession

of which became punishable by death Also around the same time the National Assembly of

Gambia voted to extend the scope of the death penalty by making the possession of more than

250g of heroin or cocaine an offence punishable by death159

Several states allow for the death penalty for crimes of blasphemy and other crimes for

nonviolent expression and association In Pakistan Aasia Bibi a Christian mother of five was

charged with blasphemy and sentenced to death after a trial largely believed to be unfair on 8

November 2010 She is currently on death row The country is also noted for its laws concerning

capital crimes The list includes 27 crimes most of which go beyond the notion of ―most serious

crimes as recommended by the International Covenant on Civil and Political Rights Extra-

marital sex and blasphemy are examples of some capital crimes in the country In December

2007 Pakistan voted against a United Nation General Assembly resolution for a moratorium on

the death penalty The year before however the nation amended its law on rape and adultery

charges which are no longer punishable by death160

As far back as 1989 recommendations have been made as to how to abolish the death penalty

Member states (of the UN) have been urged ―to publish for each category of offence for which

the death penalty is authorized and if possible on an annual basis information about the use of

the death penalty including the number of persons sentenced to death the number of executions

actually carried out the number of persons under sentence of death the number of death

sentences reversed or commuted on appeal and the number of instances in which clemency has

been granted and to include information on the extent to which the safeguards referred to above

are incorporated in national law161

The committee must inspect how far this recommendation

has been adopted and should seek to rectify the weaknesses in the system of gradually

abolishing the death penalty Can a target year be designated by which crimes meriting the death

penalty could be made universal How can countries with non-secular legal systems be brought

into the fold of international law

159

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 160

httpwwwfiacatorgenIMGpdfdppakistan-enpdf 161

httpgraduateinstitutechfacultyclaphamhrdocdocsecosocresolutiondeathpen1989html

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 9: UNHRCFINAL

UNHRC 5 of 44

Topic Area A The Great Firewall of China Review of the Human Rights Situation

Introduction to the Topic Area

The Peoplelsquos Republic of China is the worldlsquos most populous country with an estimated

population of 137 billion It is also one of the largest countries in terms of its land territory

China has firmly established itself as a premier world economic powerhouse It is the worlds

second-largest economy after the United States by both nominal GDP ($593 trillion) and

purchasing power parity ($1012 trillion) A single-party state governed by the Communist Party

of China it is widely acknowledged to be the worlds fastest-growing major economy and the

worlds largest exporter and second-largest importer of goods China is also a permanent member

of the UNSC and is a prominent figure in international politics It is a recognized nuclear

weapons state and has the worlds largest standing army with the second-largest defense budget

China is on par with the United States as a superpower and is soon even expected to supersede

the latter as the worldlsquos major politico-economic power

However Chinalsquos record in relation to human rights violations stands out for all the wrong

reasons China has been ruled by the Communist Party since it gained power and established the

Peoplelsquos Republic of China in 1949 It is believed to be in breach of numerous human rights and

its transgressions are a subject of much concern for the entire international community Some

issues like the Tiananmen Square of 1989 or that of Mr Liu Xiaobolsquos imprisonment have seen

the light of day and escaped the iron clutches of Chinese control on media However thousands

of other cases are never brought out into the open and are unable to draw international attention

which is why this year at LUMUNlsquos United Nations Human Rights Council the debate will focus

on China and its human rights violations The human rights abuses in focus will be Chinalsquos

violation of reproductive rights the case of internet censorship in China and the right to free

speech political prisoners in China and illegal detention the infringement of rights in the

conflict with Tibet and ethnic minority rights

The committee will not only be expected to discuss all aspects of the issues distinctly and in

extensive detail The committee will also be expected to be familiar with the Universal

Declaration of Human Rights all pertinent treaties resolutions and conventions

UNHRC 6 of 44

Chinarsquos Violation of Reproductive Rights

While reproductive rights are not specifically mentioned in the Universal Declaration of Human

Rights they are widely understood to be an extension of the freedom of choice and right to life

They are to be granted equally to all humans without discrimination of race sex language or

religion under the United Nations Charter7 Reproductive rights embrace certain human rights

that are already recognized in national laws international human rights documents and other

relevant UN consensus documents The World Health Organization defines reproductive rights

in the following manner

ldquoReproductive rights rest on the recognition of the basic right of all couples and individuals to

decide freely and responsibly the number spacing and timing of their children and to have the

information and means to do so and the right to attain the highest standard of sexual and

reproductive health They also include the right of all to make decisions concerning reproduction

free of discrimination coercion and violence8rdquo

Only if individuals have the freedom to be in control of their sexual and reproductive lives can

uninhibited social development occur However the lack of any binding international covenant

on the subject is a grave state of affairs Soft laws in the form of non-binding measures are

often deemed too inadequate in mounting a challenge against the issue The United Nations

Human Rights Council has the capacity to make recommendations for the revision of the

aforementioned fact and will be something that the committee should focus on

Reproductive rights include in their spectrum the right to legal or safe abortion the right to

access quality reproductive healthcare the right to birth control and the right to education in

order to make well-informed reproductive choices without any coercion or violence9 Equality

and equity for men and women is of paramount importance while addressing such civil liberties

so that individuals are able to make free and informed choices in all spheres of life without any

discrimination of any kind An essential aspect of the debate is related to the right to privacy that

all individuals must be granted in the process of their decision-making

The provision of such personal human rights is notably absent in China With the stern

implementation of the one-childlsquo policy10

China has undertaken extreme measures at the cost

of innumerable human rights to curtail population growth Despite having previously ratified the

7 Article 1 of the UN Charter httpwwwunorgendocumentscharterchapter1shtml

8 Gender and reproductive rights home page httpwwwwhointreproductivehealthen

9Amnesty International USA

httpwwwamnestyusaorgStop_Violence_Against_Women_SVAWReproductive_Rightspagedoid=1108242ampn

1=3ampn2=39ampn3=1101 10

Article 18 of Population and Family Planning Law of Peoplelsquos Republic of China

httpwwwunescaporgesidpsispopulationdatabasepoplawslaw_chinachina20pop20and20family20plan

ningpdf

UNHRC 7 of 44

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in

198011

which prohibits coercion in family planning policies12

China continues to dictate the

reproductive lives of all its citizens While the Law on Population and Family Planning states

that one child is mostly merely encouraged abusive or coercive enforcement measures such as

forced abortions compulsory sterilizations and the forced insertion of intra-uterine devices after

abortions or births are common practices that are regularly documented13

Forced sterilizations are a troublingly common practice in other regions as well Perulsquos case is

important in this regard with its program of achieving a target number of sterilizations each

year sometimes numbering in the hundreds of thousands Indeed the government would

sometimes bribe women to undergo these procedures in exchange for food and medicine for

their existing children 14

A system of enhanced monitoring strategies is often regarded as one of

the solutions to the problem

Another pervasive measure employed by the state is the routine monitoring of the menstrual

cycle of women particularly those in the child-bearing age by family planning officials15

Their

employment is often contingent upon compliance with the policy The right to privacy is

severely breached in all such instances Furthermore unmarried women are not allowed to have

children and even married couples must apply for a birth permit before they can legally bear

children16

Analyzing the statelsquos penetrating involvement and interference in the private spheres

of individuals in light of existing treaties and conventions will be one of the committeelsquos tasks

Women and couples who defy the policy face fines amounting to several yearslsquo salary have their

access to social services cut and are even imprisoned in certain cases Their so-called black

childrenlsquo have no legal status in China meaning these children are not granted any rights

whatsoever and do not have access to education health or any other services provided by the

State There are an estimated 6 million undocumented children in China most of which are

believed to be girls17

The cases of Mao Hengfeng and Chen Guangchengserve as prime examples demonstrating the

inhumane nature of penalties handed out by the Chinese state to violators of the one-child

policy18

Mao a human rights activist was sentenced to two and a half years in prison after she

refused to have an abortion Chen was a blind self-taught lawyer and activist who was charged

and punished with more than four years in prison after exposing abuses in the implementation of

the one-child policy

11

httpunifem-eseasiaorgChina 12

httptreatiesunorgPagesViewDetailsaspxsrc=TREATYampmtdsg_no=IV-8ampchapter=4amplang=en 13

httpwwwrhrealitycheckorgnode7926 14

httpwwwwebsteredu~woolflmforcedsterilizationhtml 15

Page 2 httpwwwcensusgovpopulationinternationalfilesspSP73pdf 16

httpfactsanddetailscomchinaphpitemid=128ampcatid=4ampsubcatid=15 17

Ibid 18

httpwwwrhrealitycheckorgnode7926

UNHRC 8 of 44

The appalling state of affairs is further augmented by the actions the Chinese state takes to

impede the birth of conceived children It implements very strictly a program of compulsory

sterilization and forced abortions to minimize the birth of a second child in a family While

abortion itself may be a debatable and controversial topic the subset of such a controversy in the

form of a state-regulated forced abortion is excruciatingly black and white The undeniable

cruelty of forced abortions is not a deterrent strong enough for the Chinese government and the

phenomenon exists widely in China In fact the policy leads to an estimated 13 million abortions

every year with many of those ordered by local authorities Infanticide is a common practice

especially in the rural areas of the country19

Women are abducted by the state and at the cost of

their lives are forced to undergo forced and mostly unsafe abortions

In October of 2010 China forced an eight-month pregnant woman into an abortion for breaching

the one-child policy20

Government officials entered Xiao Aiyinglsquos residence hit and kicked her

in the stomach and subsequently dragged her to the hospital where doctors injected her with a

lethal drug to kill her unborn baby Xiaolsquos husband later described the incident They held her

hands behind her back and pushed her head against the wall and kicked her in the stomachlsquo The

animalistic discourse adopted by the government officials is a testimony to Chinalsquos open rebuke

for human rights More recently Womenlsquos Rights without Frontierslsquo and China Aidlsquo reported

the death of a six-month pregnant woman during a forced abortion on October 12th

201121

Jihong Ma was seized by Family Planning Officials for a forced abortion having violated the

one-child policy

While the positive environmental impact of the prevention of 300 to 400 million births may be

cited22

it must be noted the one-child policy privileges only the wealthy who can afford the

fines for additional births and have better access to contraceptives and health care while

punishing the poor who are financially crippled by the fines incurred for additional births

Moreover this policy punishes the children of the poor because they are more likely to be kept

hidden from the state and thus will not have access to health care and the education they need to

climb out of poverty In this way social disparity is further perpetuated within the existing

framework

Another adverse byproduct of Chinas 30-year-old family planning policy is the gender

imbalance that is now manifested most clearly among those of marrying age The British

Medical Journal claimed that in 2005 there were 32 million more males than females (under the

age of 20) in China23

Even though China banned prenatal sex screening in 199424

illegal

ultrasound tests allow prospective parents to choose the gender they prefer for their only child

19

httpwwwdailymailcouknewsarticle-1322601China-forces-woman-abortion-EIGHT-months-breaching-

child-policyhtml 20

Ibid 21

httpwwwwomensrightswithoutfrontiersorgblogp=429 22

―Has Chinas one-child policy worked httpnewsbbccouk2hiasia-pacific7000931stm 23

British Medical Journal BMJ 2009 338b1211 httpwwwbmjcomcontent338bmjb1211full 24

―A Brief History of Chinas One-Child Policy httpwwwtimecomtimeworldarticle08599191286100html

UNHRC 9 of 44

creating a massive imbalance This imbalance will lead to drastic results in the next few years an

implication the committee needs to take in account when establishing a framework for

responding to the issue

The Human Rights Council conducted a Universal Periodic Review of China in 200925

to much

international consternation and surprise the report lacked substantial evidence implicating

China and was instead found to be extremely vague The role of the United Nations in defining

and drawing attention to the issue is of key significance and the Human Rights Council must

make recommendations on how the United Nations can enhance its capacity in laying the

foundations for the case The Council can also make recommendations regarding the changes

that can be brought about in the conduct of the Review and otherwise in order to be able to

contain the issue with lesser difficulty

The committee will be called upon to review reproductive rights in detail including the implicit

and explicit consequences on the people of China Access to reproductive healthcare is a

problem the world over and is often consciously violated by states Is there a way to control

these violations perhaps through devising enhanced monitoring strategies

The Case of Internet Censorship in China and the Right to Free Speech

Everyone has the right to freedom of opinion and expression this right includes freedom to hold

opinions without interference and to seek receive and impart information and ideas through any

media and regardless of frontiers26

- Article 19 Universal Declaration of Human Rights

Everyone shall have the right to freedom of expression this right shall include freedom to seek

receive and impart information and ideas of all kinds regardless of frontiers either orally in

writing or in print in the form of art or through any other media of his choice 27

- Article 19 (2) International Covenant on Civil and

Political Rights

The Peoplelsquos Republic of China along with being the most populous region of the world is also

home to the worldlsquos largest collection of internet users According to Xinhua Chinalsquos state-run

English news agency Chinalsquos internet user ship exceeded 500 million users as of September

201128

China is also the worldlsquos largest media market However despite these impressive

statistics it is both interesting and disturbing to note that the Republic is also remarkable for its

25

httplibohchrorgHRBodiesUPRDocumentsSession4CNA_HRC_WG6_4_CHN_3_Epdf 26

httpwwwohchrorgENUDHRDocumentsUDHR_Translationsengpdf The Universal Declaration of Human

Rights 27

httpwww2ohchrorgenglishlawpdfccprpdf The International Covenant on Civil and Political Rights 28

httpnewsxinhuanetcomenglish2010china2011-0929c_131167919htm

UNHRC 10 of 44

censorship history About a dozen government bodies control internet usage including the

Ministry of Public Security29

It has been noted that while the Chinese advertising industry is

booming this freedom does not extend to editorial content of newspapers30

This phenomenon of

Chinese censorship has been labeled in the mainstream global media as the Great Firewall of

China The Firewall serves to filter both the information coming into China as well as

information generated within the nation It is beyond being a clever pun a matter of concern for

the committee because of its repressive characteristic The State imposes such extreme

restrictions of freedom of information under the premise of protection of its nationalistic

interests However its negative connotation is much obvious and its resemblance to Orwelllsquos

Ministry of Truth and the notion of thought control is uncanny The Peoplelsquos Republic has signed

(not ratified) the International Covenant on Civil and Political Rights The committee can look

into the reasons behind this as well as assess current global membership to the covenant

Chinalsquos Internet censorship is centered on the control of political thought The Measures on the

Administration of Internet Information Services and the Provisions on the Administration of

Internet News and Information Services are the two main instruments used to do so31

Section 19

of the latter deserves special attention and casts its scope to prohibit activities that disrupt

―national policies on religion propagating evil cults and feudal superstitions jeopardize ―the

security of the nation harm ―integrity of the nationlsquos unity or ―the honor or the interests of the

nation among other things32

Regulations are so stringent that in 2008 only eight websites out

of a total of 430000 in Guangdong Province ndash Chinalsquos most populous region -- were able to

obtain news publication qualifications permits33

The Internet news and information services entities engaging in Internet news and information

services shall abide by the Constitution laws and regulations by persisting in providing service

for the people and serving socialism and guiding public opinion to protect the interests of the

nation and the public

- Article 3 Provisions on the Administration of Internet News and Information Services

The national report submitted by China to the Working Group for the Universal Periodic Review

in 2009 exhibited the governmentlsquos opinion that ―with such easy fast and diverse ways of

gaining access to information and expressing opinion including criticism of the Government

Chinese citizens are enjoying an entirely new lifestyle34

According to a white paper published

29

httpwwwhrworgreports2006china08063htm_ftnref28 30

httpnewsbbccouk2hiafricacountry_profiles1287798stm 31

httpwwwhrichinaorgcrfarticle3244 32

httpwwwchinaitlaworgp1=printampp2=051006175116 Provisions on the Administration of Internet News and

Information Services

Please peruse the following httpwwwhrworgreports2006china08063htm for commentary on the Provisions 33

Ibid 34

httplibohchrorgHRBodiesUPRDocumentsSession4CNA_HRC_WG6_4_CHN_1_Epdf

UNHRC 11 of 44

in 2008 by the Information Office of the State Council the internet is a ―crystallization of human

wisdom and ―Chinese citizens fully enjoy freedom of speech on the internet 35

Chinalsquos policies have relevance beyond

their contravention of what may seem to be

abstract principles China has jailed the

largest number of internet dissidents the

world over The case of Liu Shaokun for

example is a notable one He was a

teacher in Sichuan province which had

been hit in 2008 by a ravaging earthquake

around the time of the Summer Olympics

in Beijing China had been praised for

allowing reporters to openly cover the

earthquake Much of this openness however was part of a bid to soothe the international

community and project Beijinglsquos image as being the perfect venue for the Olympics Shaokun

however was sentenced to a year of labor for posting photographs of schools affected by the

earthquake He is among countless others who have been silenced36

When the Arab Spring flowered over the Middle East China cracked down on many social

networking sites to curb pro-democracy sentiments Amongst these was LinkedIn blocked over

the fact that one of its users had mentioned the possibility of a ―Jasmine Revolution in China37

The government blocks discussions about the Dalai Lama the Tiananmen Square protests and

the Falun Gong spiritual movement among other things In April of 2007 the Chinese version of

MySpace launched but lacked discussion forums centered on the aforementioned topics among

others including Taiwanlsquos independence In 2010 Google considered withdrawing its services

from China after a spur of cyber-attacks on email accounts of human rights activists 38

Google

and the government reached a deal whereby Google operated by Chinese guidelines within

mainland China However Google has a non-censored operation running in Hong Kong to

which it started routing customers in 2010 when it had concerns over Google accounts being

hacked by authorities It is testament to Chinese control that companies such as Google are

forced to enter the internet market on its terms Other instances of well renowned internet

websites being blocked or affronted include Twitter being banned during the 20th

anniversary of

the Tiananmen killings

The Committee to Protect Journalists ranks China as one of the worst internet censors The

Chinese government has been alleged of carrying out ―spear-phishing whereby spying software

disguised as legitimate emails is installed on computers that belong invariably to journalists

35

httpchinaorgcngovernmentwhitepapernode_7093508htm 36

httpcpjorgreports201012cpj-journalist-prison-census-iran-china-highest-14-yearsphp 37

httpwwwbbccouknewstechnology-12586462 38

httpnewsbbccouk2hi8460129stm Please look at this link for a timeline of Chinalsquos internet history

UNHRC 12 of 44

Victims included those writing about Liu Xiaobo the imprisoned human rights defender who

received the Nobel Peace Prize in 201039

According to statistics over 80 of Chinas netizens rely mainly on the Internet for news 40

With this state of affairs and increasing dependence the world over on the internet as a major

source of information discussing information monopolies is crucial To isolate a country of over

a billion and deny it access to information in the age of technology may not seem a palpable

physical or otherwise contravention of human rights however its consequences are

tremendous While one may think that media censorship is restricted to dictatorial regimes the

case of China serves to refute that line of thought Media censorship is prevalent even in

countries as varied as Indonesia India Mexico and Russia ndash all of whom rank relatively low on

the Press Freedom Index41

Looking at instances worldwide and the justifications given for

restricting rights will be a useful direction to take while researching

The following website is a useful tool to check the status of websites in China

httpwwwgreatfirewallofchinaorg

Political Prisoners in China and Illegal Detention

Political prisoners are those whose imprisonment is carried out arbitrarily on contestable and

controversial grounds Governments detain certain individuals on the basis of allegedly valid

grounds which are not always disclosed or declared Many detainees charge existence of ulterior

motives or extrajudicial reasons on part of the state for their detention The phenomenon of

political prisoners is often associated with closed regimes such as Burma and the DPRK

However the Peoplelsquos Republic of China too does not escape scrutiny when the topic of political

prisoners is at hand The phenomenon of political prisoners resonates so loudly in the

international spheres particularly because governments deny the existence of political prisoners

they claim that all detainees are lawfully held under criminal law The unfair detainment of

persons or the capture of people to serve the interests of a government contravenes many human

rights including freedom of expression association and assembly Indeed a countrylsquos political

imprisonment record is one of the crucial indicators of its human rights situation

Amnesty International views political prisoners as prisoners of conscience These are more

specifically ―people who have been jailed because of their political religious or other

conscientiously-held beliefs ethnic origin sex color language national or social origin

economic status birth sexual orientation or other status42

39

httpwwwcpjorgreports201105the-10-tools-of-online-oppressorsphp 40

httpchinaorgcngovernmentwhitepapernode_7093508htm 41

httpenrsforgpress-freedom-index-20101034html 42

httpwwwamnestyusaorgour-workissuesprisoners-and-people-at-riskprisoners-of-conscience

UNHRC 13 of 44

According to the (US) Congressional Executive Commission on China over 5000 cases of

politically or religiously motivated imprisonments have been made It has detailed documented

information on the status of 1452 of these prisoners and

notes that its information is far from complete and that the

true story of Chinalsquos political prisoners remains unknown 43

The plight of political prisoners in China is speculated upon

by various international organizations Among these is the

Human Rights Watch which has gone as far as labeling the

locations for holding political prisoners ―black jails and

―alleyways in hell Officially though the Chinese

government denies the existence of political prisoners Subsequent to Chinalsquos Universal Periodic

Review an outcome report was published which came under fire from various sides The Human

Rights Watch called the substance of the report to be ―manifestly so far removed from reality

that [it] would immediately discredit anybody that adopted them in a report 44

In the report of

the UNHRC Working Group subsequent to Chinalsquos UPR it is stated that the Chinese

government does not use ―state secrets to suppress human rights defenders 45

It is precisely this

situation that our simulation wishes to remedy discussion should be fact based

The ground realities are different In 2010 Chinese activist and human rights defender Mr Liu

Xiaobo was awarded the Nobel Peace Prize He was jailed by Chinese authorities for

distributing his ―Charter 08 a document that called for freedom of expression and of assembly

among other things The government incarcerated him for an 11 year time-period on the charge

of subversion Subsequent to the prize the Chinese government came down hard on other human

rights activists Indeed those celebrating the awarding of the prize to Mr Xiaobo were arrested

arbitrarily While distributing fliers celebrating the win many were imprisoned on the grounds of

―inciting subversion of state power The Report of the Special Rapporteur on the situation of

human rights defenders published in 2011 makes mention of these facts46

The Chinese

government labeled the award an ―obscenity It is vague allegations such as these that allow

governments to thwart dissidents As expected though according to the report of the HRC

Working Group No individual or press has been penalized for voicing their opinions or

views47

When discussing China and political prisoners it is important to mention the Falun Gong

movement It is a spiritual variant of Buddhism and originated in China on the basis of the

teachings of its founder Li Hongzhi The movement was supported within the Chinese

43

httpwwwceccgovpagesvictims20101010_PPD_AR10pdfPHPSESSID=705596c0e91f35e392e6f0ecbb78d6

7c 44

httpwwwhrworgennews20090610human-rights-watch-statement-upr-outcome-report-china 45

httpdaccess-dds-nyunorgdocUNDOCGENG0916299PDFG0916299pdfOpenElement 46

httpwww2ohchrorgenglishissuesdefendersdocsAHRC1644Add1_EFSonlypdf Page 63 47

httpdaccess-dds-nyunorgdocUNDOCGENG0916299PDFG0916299pdfOpenElement Para 71

UNHRC 14 of 44

officialdom initially However Falun Gonglsquos popularity within the masses as well as its

independence from the state and its spiritual teachings was soon perceived as a threat to the

government By the late 1990lsquos the Chinese government cracked down on the movement and

labeled it as a heretical organization Chinese legislation uses the expression ―Xiejiao zuzhi to

refer to a wide range of sectarian or unorthodox religious groups which do not meet official

approval The Falun Gong movement is included in this list48

The Falun Gong followers are the

worldlsquos largest group of prisoners of conscience The PRC often picks up practitioners and

accuses them of ―using an evil cult to destroy implementation of the law 49

China with its strict non-religious government did not take kindly to this new movement that

had garnered millions of followers both within China and internationally between 1992 and the

crackdown in 1999 Today Falun Gong is practiced freely in more than 70 countries around the

world with clubs and associations existing in a range of settings50

Beginning at the turn of the

millennium the authorities started to ban access to websites that contained material about the

movement Indeed a search on the movement on Chinalsquos Xinhua News Agency website will

even today yield nothing (It may be an interesting experiment for delegates to conduct) Those

who reported the initial crackdown were ―followed detained interrogated and threatened

according to a letter written in 1999 by The Foreign Correspondents Club (FCC) of China51

The Falun Gong movementlsquos official website deals with its persecution thus The complex

rationale behind the persecution can be broken into four elements a paranoid dictators fear of

Falun Gongs meteoric growth and soaring popularity that same dictators intense jealousy of

Falun Dafas popularity the inherent conflict between the communist regimes savage political

ideology and its polar oppositemdashFalun Dafas principles of Truthfulness Benevolence

Forbearance and the very nature of communism which to sustain itself requires periodically

labeling a small segment of the population as the class enemy to struggle against52

The Chinese crackdown on Falun Gong practitioners involved a ban on practicing it by the

Chinese Communist Party whose members as aforementioned were interestingly initially

adherents to the movement in significant numbers Indeed the party was divided from within

over their stance on the movement The government formulated an ―anti-cult law a few months

after issuing a warrant for the founderlsquos arrest ―During the first two years of the crackdown

between 150 and 450 group leaders and other members were tried for various crimes and

sentenced to prison terms of up to 18-20 years53

To this day ―central leaders turn a blind eye to

48

httpwwwamnestyorgenlibraryassetASA170112000en7a361a8e-df70-11dd-acaa-

7d9091d4638fasa170112000enhtml 49

httpwww2ohchrorgenglishissuesdefendersdocsAHRC1644Add1_EFSonlypdf 50

httpwwwfaluninfonettopic22 51

httpwwwamnestyorgenlibraryassetASA170112000en7a361a8e-df70-11dd-acaa-

7d9091d4638fasa170112000enhtml 52

httpwwwfalundafaorgengfaqshtmlpersecution 53

httpfpcstategovdocumentsorganization67820pdf Page 4

UNHRC 15 of 44

local methods of suppression against unrepentant practitioners including the reported use of

torture54

Also worth noting is the fact that Chinalsquos judicial system has been alleged to be anything but

conducive to providing justice to those using the system Indeed it is a repressive tool used by

the government to silence dissent China with its vast land mass and various provinces and

municipalities must work hard to keep its Centre strong Scores of individuals who are more

obscure than human rights activists and such are imprisoned by the government while ironically

seeking justice It has long been the custom for people of the countryside to seek justice in

Beijing if they felt that their local authorities had treated them unfairly However modern China

has not taken kindly to this tradition Local authorities are evaluated on the basis of the number

of complaints the Centre receives about them Thus they have a vested interest in thwarting the

reports of any complaints about them to Beijing Those who complain are whisked off to black

jails where ―detainees are denied access to legal counsel and in most cases contact with family

and friends They ―are kept under constant surveillance and subject to often arbitrary physical

and psychological abuse55

Chinalsquos record with regard to political prisoners and its tradition of suppressing dissent are

exacerbated by the sheer scale on which dissent is thwarted The aspect of potential torture of

prisoners further complicates the issue It is troubling that the issue of Chinese political prisoners

only gained international prominence with the case of Mr Liu Xiaobo It is not the only nation in

the world to adopt such strict policies in order to further its own ideology and the committee will

do well to ruminate upon how this tradition can be discontinued so as to allow people their

essential political freedoms

The Infringement of Rights in the Conflict with Tibet

Despite the furor that has been inconsistently directed towards its human rights record China

continues to impose tightening restrictions on rights of expression association and assembly

The Chinese government carries on devising social and economic changes that retain its firm

authority over its citizens which in turn enables a host of human rights violations In the context

of Tibet China has failed to address the grievances of the people there who have been made

victims of social discrimination and have unequal access to opportunities Scores of Tibetans are

marginalized and detained for their religious inclinations which are further suppressed by the

imposition of intense patriotic educationlsquo campaigns whereby socialism is furthered and all sorts

of religious or individualistic tendencies are thwarted

54

Ibid Page 5 55

httpwwwhrworgreports20091112alleyway-hell-0 Page 4

UNHRC 16 of 44

Despite its totalitarian approach China refuses to accept responsibility for the issue Instead it

blames westernlsquo forces for trying to instigate separatism56

The indifference on the part of

China with particular regard to Tibet is apparent with Chinese authoritieslsquo continuous rejection

of ―inconvenient requests by UN human rights experts for visits to the Tibet Autonomous

Region57

During 1912 and 1951 Tibet underwent a period of de facto independence58

While it was still

territorially a part of China it enjoyed relative freedom in its political discourse Tibetan

autonomy was confined within the context of Chinese suzerainty and should not be interpreted

as unrestrained political independence Since 1951 however the Chinese government has taken

steps to ensure its absolute and undeniable dominance over Tibet from which emanates the strife

under discussion Gross violations of human rights have taken place in China administered by

officials with the purpose of cultivating consent with regard to its control over the region

Suppression has led to the inevitable extensive discontent in Tibet a fury which was unleashed

in 2008 The Tibetan unrest of 2008 was a series of protests and demonstrations - not merely in

the Tibet Autonomous Region but elsewhere as well - that later transformed into rioting burning

looting and even killing59

The rioters set fire to state vehicles and clashed violently with the

police installed in the region The crackdown of Chinese authorities in response to the riots was

severe resulting in deaths on both sides and mass imprisonment by state authorities The degree

to which human rights were violated and abused during this crackdown cannot be overstated

The Chinese also revoked the freedom of sharing of information and imposed a ban on the entry

of media officials in the region to contain

information about the unrest and play down

protests60

A Tibetan Government in Exile has existed in India

since 1959 established by the 14th

Dalai Lama61

This Central Tibetan Administration considers the

issue as an illegitimate military occupation by the

Chinese state The Administration works with the

agendas of restoration of freedom in Tibet and rehabilitation of Tibetan refugees

Historical facts refute such a fallacy however The simple reality that the installation of the 14th Dalai Lama

needed the approval of the national government is sufficient proof that Tibet did not possess any independent power

during that period ndash (httpwwwchinaorgcne-whitetibet9-2htm)

56

httpwwwunhcrorgrefworldcountryAMNESTYCHN49b8dfc11a0html 57

Ibid 58

Grunfeld A Tom Reassessing Tibet Policy 2000 59

httpwwwnytimescom20080316worldasia16iht-tibet111134870html 60

Watts Jonathan Branigan Tania (March 18 2008) Tension rises as armed police mass in capital The

Guardian (London) Retrieved November 1 2011 61

httpwwwtibetnetenindexphpid=14

UNHRC 17 of 44

The censured freedom of expression is one of the multiple infringements on rights that are

imposed by China on Tibet Tibetans are denied the basic right to articulate their views through

political discourse Human rights activists advocate the freedom of speech for Tibetans under the

existing and future political arrangements Religious and political figures in Tibet are placed

under house arrest limiting their freedom of movement (in contradiction to article 13 of the

Universal Declaration of Human Rights)62

As was highlighted during the unrest in 2008 China

has often stripped the Tibetan population of its fundamental rights to associate and assemble In

2000 nine Tibetan prisoners in Kandze were charged for participating in a peaceful protest to

five-year prison terms in October 1999 (which were later increased to ten-year terms)63

This example leads us to another crop of abuse conducted overtly by Chinese authorities

arbitrary detention Article 9 of the Universal Declaration of Human Rights reads ―No one shall

be subjected to arbitrary arrest detention or exile64

Chinese law however permits authorities

to detain persons without formally arresting or charging them and persons may be sentenced

administratively to up to 3 years in reeducation-through-labor camps and other similar facilities

without a trial

Chinese authorities have been unresponsive to concerns expressed by the United Nations

Working Group on Arbitrary Detention No counter-explanation was given either over the case

of three Tibetans who had their sentences extended for staging a peaceful political protest during

the Working Groups visit to Drapchi in October 1997 despite international pressure65

Infinite

examples of arbitrary arrests and detentions exist in China international authorities have called

on China to cease this practice and release such detainees immediately absent evidence that they

have engaged in criminal acts No state can or should be able to hold anyone for engaging in

peaceful political activity All humans

should be granted internationally recognized

due-process protections which includes the

right to be informed of the charges leveled

against them66

The question of whether

these detainees are given an impartial trial if

one at all is not even raised

In addition to the arrests carried out in

violation of international law there are

grave evidences of abuses during detention

62

httpwwwhrworgnews20000612human-rights-violations-tibet 63

Ibid 64

httpwwwunorgendocumentsudhr 65

httpwwwhrworgnews20000612human-rights-violations-tibet 66

httpwwwhrworgnews20000612human-rights-violations-tibet

UNHRC 18 of 44

Incidences of beatings at time of arrest and torture (including the administration of electric

shocks and deprivation of food and medical treatment)67

during custody are widely reported

These are not isolated cases rather the product of a holistic policy of dealing with political

dissidents In one notable incident in May 1998 political prisoners in Drapchi staged major

protests to coincide with a visit from a European Union delegation The protests were non-

violent but the authorities reaction was severe several protestors were shot at and one monk

Lobsang Gelek subsequently died68

The Convention Against Torture (CAT ratified by China in 1988) requires the state to prevent

torture and punish those in violation of the law China has not amended its own laws to comply

with even the first article of CAT69

Such practices explicitly stand in contempt of Article 5 of

the Universal Declaration of Rights which censures the use of torture or cruel treatment as

punishment Dr Manfred Nowak the UN Special Rapporteur on Torture stated that ―he was

struck by the strictness of prison discipline and a palpable level of fear and self-censorship when

talking to detainees following his brief assessment of Chinese and Tibetan prisons in 200570

The committee will be looked upon to review ways in which the situation can be monitored more

carefully and what responses if any can be cultivated to impede similar future actions by

China

The continued violations of religious freedom and implementation of policies designed to

diminish religious practices by the State to serve its political needs is a cause of concern Again

referring to the Universal Declaration of Human Rights Article 18 reads ―Everyone has the right

to freedom ofhellipreligion this right includes freedomhellipto manifest his religion or belief in

teaching practice worship and observance71

The policies implemented by Chinese authorities

through use of coercion violent repression and imprisonment impinge upon the freedom of

Tibetans to practice their religion freely China has also strictly enforced re-education programs

for dissident factors within the state The program is aimed at ―combating separatism protecting

stability and promoting development and is intended to reform the political ideology of people

who refuse to accept state control of what they perceive as vital aspects of their religious lives

and beliefs The committee will be expected to deliberate upon the protection of religious

freedom and practices of individuals as well as the validity of these re-education programs in

light of human rights and liberties

Tibet is not the only region where political tensions surrounding autonomy run high The

Kosovo-Serbian conflict is pertinent to recall The Republic of Kosovo declared itself to be an

independent entity on February 17 2008 As of 11 October 2011 85 UN states recognize the

independence of Kosovo However Serbia maintains that Kosovo is a UN governed entity under

67

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 68

httpwwwfreetibetorgabouttorture 69

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 70

Ibid 71

httpwwwunorgendocumentsudhr

UNHRC 19 of 44

its sovereignty Russia and China are among those who do not recognize the Republic while the

USA UK and France have recognized Kosovolsquos declaration of independence This highlights the

rift between the United Nations Security Council over the issue The case of Tibet is all the more

important in light of the fact that many such pockets exist in the world struggling for self-

determination

Media Links

httpwwwfreetibetorgnewsmedia2008-protests-summary

httpwwwguardiancoukworldgallery2008mar19tibetchinapicture=333178281ampindex=7

Chinarsquos Violation of Ethnic Minority Rights

One of the greatest blemishes on Chinalsquos human rights record is in the area of ethnic minorities

and the extent to which China protects ethnic minority rights On paper Chinalsquos policies are

based on ethnic equality and regional ethnic autonomy Ethnic minorities are supposed to be

benefitting from preferential policies in the political economic cultural and educational spheres

However the ground realities are infinitely different Questions have been raised over the extent

to which the government fairly provides services to these minorities and allocates resources

equally to them The Chinese government is seen to largely prefer its Han majority The

minorities claim they are exploited for their resources and in turn not even provided with the

same level of social services as the Han people China is an atheistic government and the fact

that many ethnicities garner their identity in major part from their religious affiliation leads to a

precarious situation The Mongols Tibetans and Uighurs all come to mind when discussing the

issue of China and ethnic minority rights

―Everyone is entitled to all the rights and freedoms set forth in this Declaration without

distinction of any kind such as race colour sex language religion political or other opinion

national or social origin property birth or other status Furthermore no distinction shall be

made on the basis of the political jurisdictional or international status of the country or

territory to which a person belongs whether it be independent trust non-self-governing or

under any other limitation of sovereignty

- Article 2 Universal Declaration of Human Rights

The International Convention on the Elimination of Racial Discrimination defines racial

discrimination as any distinction exclusion restriction or preference based on race colour

descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the

recognition enjoyment or exercise on an equal footing of human rights and fundamental

UNHRC 20 of 44

freedoms in the political economic social cultural or any other field of public life72

It is due to

this that the international community has adopted the norm of subsuming ethnicity under the

terminology of race

―The Peoples Republic of China is a united multi-ethnic country So far 56 ethnic groups have

been identified and recognized by the central government The population of various ethnic

groups differs greatly While the Han ethnic group has the largest population and that of the

other 55 ethnic groups is relatively small so they are customarily referred to as ethnic

minoritieslsquo According to the fifth national census conducted in 2000 the population of all the

55 ethnic minority groups totaled 10449 million accounting for 841 percent of the total

population of China73

Chinas official 55 minorities are located primarily in the south west

and north of China Only Tibet and Xinjiang have a majority population of official minorities

while all other provinces municipalities and regions of China have a Han majority

One of Chinalsquos autonomous regions is the Xinjiang Uighur Autonomous Region (XUAR)

located in western China The area is vast accounting for one sixth of Chinalsquos land and houses

around 13 major ethnicities including the Uighurs who are a predominantly Muslim people with

origins in Central Asia The Uighurs have had strained ties with the state and have often resisted

Chinese authority74

In turn the Chinese government has reacted sometimes violently against

restless factions in the region One of the most passive aggressive forms of response on the part

of the Peoplelsquos Republic has been the encouragement of the migration of the Han people ndash

Chinalsquos ethnic majority ndash to the XUAR75

Around 90 of Xinjiangs population comprised of

Uighurs in 1949 now it is estimated that Uighurs make up only about 45 of the population76

The policies in Xinjiang are said to be designed to ―promote economic development not

demographic change In reality though the influx of migrants has amplified Uighur discontent

as Han and Uighurs compete over limited jobs and natural resources77

The United Stateslsquo

Congressional-Executive Commission on China reported that in 2006 the XPCC (Xinjiang

Production and Construction Core) reserved approximately 800 of 840 civil servant job openings

for Han Chinese78

One of the causes of the Han monopoly in the employment sector is the

linguistic advantage afforded to them and perpetuated by the education system As part of its

efforts to implicitly impose a unified culture the language policy was altered by the state with

an increased focus on use of Mandarin in schools at the expense of the local languages

Methods of education special to the ethnic peoples of the XUAR including the Muslim Uighurs

are suppressed For example a campaign by the PRC in 2001 targeted religious teachers and

72

httpwww2ohchrorgenglishlawcerdhtm 73

httpenglishgovcnofficial2005-0728content_18127htm 74

httpwwwcfrorgchinaeast-turkestan-islamic-movement-etimp9179 75

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p8 76

httpnewsbbccouk2hiasia-pacific3330803stm 77

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p4 78

httpwwwcolumbiaeducunewsclips20080801UighursTWPOSTpdf

UNHRC 21 of 44

endeavored to sever ties between mosques and groups involved in allegedly ―separatist

activities Around 8000 imams were required to undergo ―political reeducation in this regard

and become ―patriotic religious personalities Ethnic minorities are educated in ways that do not

allow them to learn their own languages or practice their own religion In 2001 for example a

Muslim girl was expelled from school for praying 79

Moreover in an attempt to further its socialist agenda and bind ethnic minorities together

minority cultural activities are often hindered In its place nationalistic values are given a

premium and integrated into society so as to tie the entire country in a unified Chinese foldlsquo

Resultantly an asymmetry with regards to the provision of services and protection of cultural

identity can be found in almost every ethnic minority region in the country The repression

against minorities has wider implications on the human rights situation for all This leads to

creation of a vindictive attitude among the minorities not only against the government but also

the Han majority

In July 2009 this attitude manifested itself in

the form of severe riots between the Han and

Uighur communities in Xinjianglsquos capital city

Urumqi Ethnic tensions elevated to the point

that police involvement was made necessary

According to Chinese state media at least 150

people were killed and more than 800 were

injured The riots were reportedly sparked by a

Uighur protest over the ethnically motivated

killing of two Uighur workers in the southern

province of Guangdong

On the topic of allegations of separatism it is interesting to note that post 911 it has been noted

that the Chinese government has used concerns about terrorism as a method for suppressing

ethnic activity This is possible through the characterization of certain ethnicities as having

fundamental leanings The Muslim Uighurs fell under fire for this very reason after the

September 2001 attacks

One of the ways that the Chinese government with its Han leanings has asserted its presence in

the region is through the smokescreen of the XPCC The Peoplelsquos Liberation Army and the

XPCC are present in the region per the government to ―consolidate border defense accelerate

79

wwwminorityrightsorgdownloadphpid=29 Page 30

UNHRC 22 of 44

Xinjianglsquos development and reduce the economic burden on local governments and the local

people of all ethnic groups80

The heavy militarization of ethnic minority

regions also enables the Chinese government

to quickly respond to skirmishes between the

minorities and the Han For example clashes

between the Uighurs and the Han in the

XUAR are quickly clamped down upon The

response by Chinese authorities always

focuses on the minority groups in the region

The typical response includes a period of

strike hardlsquo security measures during which the minorities are subjected to police patrols of

crowded areas identity checks street searches increased criminal investigations and accelerated

trials The measures also include mandatory political indoctrination classes for the Uighur

population Swift Chinese response to ethnic dissidence precludes the possibility of trying

protestersrioters under due process This phenomenon also contributes to the controversy of

China and its policy of arbitrary imprisonment

Essential to any countrylsquos social progress is the protection and provision of the basic rights to all

its citizens For a country like China which has a significant standing in the international

community the degree to which human rights are upheld comes under added scrutiny Minorities

need to be guaranteed provision of not only fundamental rights but additional ones that grant

them equal opportunities

Recent Developments

3 November 2010 UN Secretary General pushes China on human rights

Ban Ki-moon the United Nations secretary general has called on China to respect human rights

after critics accused him of dodging the issue on a trip to Beijing The UN secretary general met

Hu Jintao the Chinese president but failed to challenge Mr Hu on the imprisonment of Liu

Xiaobo the democracy activist who was awarded this years Nobel Peace prize and raise the

issue of human rights81

80

httpwwwchinaorgcne-white200305269htm 81

httpwwwtelegraphcouknewsworldnewsasiachina8107148UN-Secretary-General-pushes-China-on-human-

rightshtml

UNHRC 23 of 44

5 November 2011 Yeqing Ji from Shanghai China will most likely not be able to have children

after she said two forced abortions physically impaired her uterus82

8 September 2011 The Chinese government has renewed Googlelsquos license to allow it to

continue operating its local website in the country83

13 November 2011 Seven months ago

Chinese police detained the countrylsquos most prominent artist Ai Weiwei at the airport and drove

him to a hidden location It was the beginning of what is to be a two-and-a-half month nightmare

for the architect and sculptor who is also a former darling of the Communist Party who later

turned into an outspoken government critic Ai was held on vague charges of economic crimes

was kept in isolation and subjected to Kafka-esque interrogations84

April 19 2011 Amnesty International a 21-year-old monk Phuntsog set himself on fire in an

apparent anti-government protest in March 2011 Instead of putting out the flames Chinese

police beat the young monk creating huge resentment in the monastery85

At least 11 ethnic

Tibetans have been detained for protesting against the event and against government policies

They are at risk of torture and other ill-treatment86

29 May 2011 300 Tibetan monks detained in Kirti monastery by Chinese security forces87

15 September 2011 Chinese Uighurs economic fears

Amid ethnic tensions minority regards modernization plans in Xinjiang as favoring Han Chinese

migrants88

20 November 2011 Another of Chinalsquos minorities the Hui Muslims in Ningxia do not feel

stigmatized

―There is an important reason why Hui and Han Chinese get along with each other Unlike

Muslims of the other ethnic minorities like Uighur Kazakh Kyrgyz and Tajik the Hui Muslims

speak Mandarin just like the Hans89

82

httpabcnewsgocomBusinesswoman-china-forced-abortions-leaves-unable-

childrenstoryid=14880884Tsia7LIk6so 83

httpwwwbbccouknewsbusiness-14832392 84

httpwwwthedailybeastcomnewsweek20111113ai-weiwei-speaks-out-on-his-detentionhtml 85

httphradvorgaggregatorsources10 86

httpwwwamnestyorgenlibraryassetASA170212011end75f7611-be66-4d5a-9391-

c80c43501d56asa170212011enhtml 87

httphumanrightshouseorgArticles16503html 88

httpwwwaljazeeracomvideoasia20110920119158016969449html 89

httpwwwtodayszamancomnews-263322-chinas-hui-muslims-do-not-feel-stigmatizedhtml

UNHRC 24 of 44

Conclusion

The United Nations Human Rights Council at LUMUN 2012 will be looked upon to provide a

framework for the resolution of these issues in a universal context The scope of the issues

should be expanded and applied to countries other than China The committee will have to make

recommendations which have universal application and resolve all aspects of the issue

comprehensively For any queries related to the study guide please do contact either (or both)

the committee directors at the given addresses

UNHRC 25 of 44

Topic Area B Abolishing the Death Penalty

Introduction to the Topic Area

The death penalty is formally defined as the execution of an offender sentenced to death after

conviction by a court of law of a criminal offenselsquo90

The concept of a capital crime is subjective

and states have made use of this practice in response to multiple forms of crime The use of the

death penalty has produced much controversy with regard to its apparent violation of

fundamental human rights as delineated in the Universal Declaration of Human Rights and

subsequent human rights charters and treaties It is asserted that the use of death penalty is in

contravention to the peopleslsquo right to life promised to every individual under Article 3 of the

Declaration91

Moreover Article 2 of the Charter of Fundamental Rights of the European Union

lucidly bars the imposition of death penalty as a form of punishment92

Arguments against the

use of death penalty are also made on the grounds of inhumane methods which are employed to

see out the process Historically multiple methods have been used which include death by

hanging severing of the head lethal injection shooting and electrocution93

94

As a response states have made keen efforts to abolish

the death penalty particularly in the last two decades as

can be interpreted from the graph on the right which

represents the number of states that have abolished the

death penalty Countries belonging to the European

region with the exclusion of Russia and Belarus have

sought to revoke the use of the practice The death

penalty is most commonly seen to be a formal practice

in most of the developing countries The trend is

apparent in Latin America Africa and Asia

96 countries have formally abandoned the use of death penalty 58 countries allow the use95

Other states have abolished the penalty in practice but the laws remain in place for the

imposition of the penalty as a response to certain crimes The imposition of the death penalty has

90

httpwwwbritannicacomEBcheckedtopic93902capital-punishment 91

httpwwwunorgendocumentsudhr 92

httpwwweuroparleuropaeucharterpdftext_enpdf 93

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffle

re-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 94

httpwwwdeathpenaltyinfoorgmethods-execution 95

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf

Figure 1 (Drag to enlarge)

UNHRC 26 of 44

seen a decline over the recent years with a fall in the number of executions that take place

annually It would however be incorrect to assume that the practice is not prevalent or widely in

effect Amnesty International reported that at least 2024 new death sentences were imposed in 67

countries in 2010 Moreover there were at least 17833 people sentenced to death worldwide at

the end of 201096

Again these are minimum figures which are the safest that can be inferred

from the given research There were 527 known executions carried out in 2010 globally97

This

figure however does not include the number of executions that took place in China where

analysts believe that more than a thousand people were put to death in the past year

The statistics represent the number of people executed through capital punishment One way to

formally define capital punishment is to regard it as the state sanctioned killing of an individual

through a judicial process as a punishment for a crime (defined as a capital crime by the state)98

Capital punishment is the most obvious and prevalent manifestation of the death penalty It is

often perceived as a statelsquos right in order to preserve law and order against any individual who

engages in serious crimes that threaten other individuals or the state Those who advocate against

the use of capital punishment label it as a symptom of a culture of violence not a solution to

itlsquo99

The controversy surrounding the topic is based on the legal ethical and moral acceptability

of the statelsquos right to an individuallsquos life The debate entails several social and economic factors

some of which will be reviewed in closer detail in the relevant section of this guide

One of the most striking aspects related to the issue is the imposition of the capital punishment

on juveniles The sentencing of juveniles to death is in clear breach of international law The

morality and validity of such a practice is often called into question and has been put under

relentless scrutiny despite all of which the practice is still carried out in a number of countries

Historically the United States China and Iran have the worst records relating to juvenile death

sentences100

The study guide also includes a separate section for the case of juveniles in which

the legal and social aspects of the problems are detailed

As stated states have made use of the death penalty to punish crimes of varying natures The use

of the death penalty is reserved for only the most seriouslsquo crimes as put forth in international

law101

The notion of a capital crime however is a subjective one states that have doled out

death sentences have defined it differently In certain countries the death penalty is only used to

charge criminals accused of war crimes In other countries the penalty is reserved for crimes like

96

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf 97

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010 98

httpusersrcncommwooddeathpenhtml 99

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 100

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 101

httpwwwunorgdocumentsecosocdocs1995e1995-78htm

UNHRC 27 of 44

murder rape or even robbery States also use the death penalty against individuals who are guilty

of treason The issue however is that many states practicing the death penalty impose the

punishment even when the crimes do not meet the threshold for the aforementioned most

seriouslsquo crimes The ability of states to define what constitutes as a capital crime has led to states

abusing their powers as has been observed in the sentences ordained by military courts

Moreover even the radicals who make the argument of the punishment fitting the crime agree

that in many instances individuals have been executed for softlsquo crimes crimes that were

certainly not tantamount to charges of murder or crimes against humanity The issue of apparent

violations of human rights is further exacerbated in these instances The study guide will discuss

the universal crimes that have resulted in the awarding of the death penalty and examine the

issue further The committee will be expected to discuss the feasibility of drawing up an

international definition of crimes which in isolated instances perhaps may be appropriate for a

sentence like the death penalty

Another pertinent aspect surrounding the debate is that of extrajudicial killings The execution of

a person by state authorities without the authority of a judicial proceeding is termed as an

extrajudicial killing Many states have used extrajudicial killings to establish their authority and

order without having to wade through the legal process By doing so they have deprived scores

of people of their fundamental right to free and fair trials Governments have also employed this

tactic to exercise political aggression and to suppress dissent A particular point of concern is the

fact that some states have made use of these killings even when they have officially revoked the

imposition of the death penalty Extrajudicial killings are carried out persistently in many

countries ndash the list includes countries like Iran Iraq Israel Philippines102

Most recently the

killing of Anwar al-Awlaki and Samir Khan in Yemen by a sanctioned National Security Council

move by the USA was an example of states embarking on such paths to eliminate threats to

national securitylsquo103

102

Multiple citations for each country can be found in the second paragraph article titled Extrajudicial killinglsquo on

Wikipedia 103

httpwwwtelegraphcouknewsworldnewsbarackobama7564581Barack-Obama-orders-killing-of-US-cleric-

Anwar-al-Awlakihtml

UNHRC 28 of 44

Wrongful convictions lead many to believe in the inherent incapacity of the death penalty to

serve justice On September 21 2011 US citizen Troy Davis was executed in Georgia after

which seven of the nine witnesses who testified against him in the case that led to his execution

recounted or retracted their evidences A petition with nearly one million signatures was put

forth to reconsider his case it was rejected On the same day a 17 year old boy was publicly

hanged in Iran for killing a popular athlete his justification based on self-defense was ignored

Also on the same day a Pakistani national was executed in China on grounds of drug trafficking

an offence that does not often result in capital punishment The need for the resolution of this

issue is pressing and the committee needs to deal with all aspects of the problem in a

comprehensive and enduring manner104

Capital Punishment

In 2010 23 countries implemented capital punishment A total of 527 executions (plus the 1000+

carried out in China alone) were known to have taken place with Iran Yemen USA and North

Korea meting out a significant number of sentences105

The figure is lower than the records

computed for years past There are more states which are now abolitionist either in law or in

practice with regard to the imposition of the punishment Gabon was officially the last country

to rescind the practice while bills calling for an end to capital punishment have been presented

to parliaments in Lebanon Mali Mongolia and South Korea106

Renewed efforts are

104

httpwwwamnestyorgennews-and-updatesus-executes-death-row-prisoner-troy-davis-2011-09-21 105

httpwwwguardiancouknewsdatablog2011mar29death-penalty-countries-world 106

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010

UNHRC 29 of 44

simultaneously being made on the international front to implement laws against capital

punishment A third resolution establishing a moratorium on the use of death penalty passed the

UN General Assembly on December 21 2010107

Despite the increasing momentum towards an eventual elimination of the practice the number of

executions taking place annually is a cause of major concern Advocates of the death penalty

assert that the practice is an effective means of deterring crime in society Public executions are

often held in Iran Afghanistan and Palestine for example to demonstrate the fate awaiting

those who commit similar crimes108

Arguments are made on the grounds of justice that it is

proper and fair to take an eye for an eye and a life for a life and that some individuals deserve

it for the crimes they commit

Those opposing the practice question the morality of an action sanctioned by the state which

endorses deprivation of the right to life a fundamental human right under the Universal

Declaration of Human Rights109

There are inescapable flaws within legal systems which are

aggravated by discrimination prosecutorial misconduct and inadequate legal representation

Moreover the risk of executing the innocent can never be eliminated110

An alternative is

presented in the form of imprisonment for life without parole which results in a parallel debate

is imprisonment for life a viable surrogate to the practice of death penalty A thread from this

debate also relates to the economic feasibility of carrying out a death sentence as opposed to the

feasibility of imprisonment for life

Deterrence

Capital punishment is often propagated as an adequate approach in the deterrence and prevention

of crime The logic is that if murderers are sentenced to death potential murderers will think

twice before killing for fear of losing their own life The deterrence theory presumes that the

once the punishment for a certain crime is established the criminal by committing the crime

voluntarily assumes the risk of receiving the prescribed punishment for the crime Only when the

most severe punishment has been set will there be a possibility of an individual evaluating their

actions in light of the consequences111

107

httpwwwundemocracycomA-RES-62-149pdf 108

httpwwwamnestyorgennews-and-updatessharp-rise-public-executions-iran-executes-first-juvenile-

offenders-2011-2011-04-27 109

wwwunorgendocumentsudhr 110

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 111

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 30 of 44

The death penalty it is asserted ensures that convicted criminals do not offend again moreover

it is deemed to be a just penalty for atrocious crimes It is further alleged that many criminals

who are set free even after lengthy sentences regress and go on to commit heinous crimes

Therefore there should never be the possibility of a release clause112

The deterrence theory is modeled on the grounds of human psychology logic and rationale As a

professor of jurisprudence Ernest van den Haag PhD wrote ―Common sense lately bolstered

by statistics tells us that the death penalty will deter murder if anything can People fear nothing

more than death Therefore nothing will deter a criminal more than the fear of death These

statements were further validated by a US Supreme Court Justice who said on record that

Prima facie the penalty of death is likely to have a stronger effect as a deterrent to normal

human beings than any other form of punishmentlsquo113

Numerous studies have been conducted on

the subject with varying results One of the most established studies was conducted in USA

using a panel data set of over 3000 counties from 1977 to 1996 which concluded that on

average one death sentence resulted in 18 fewer murders114

Delegates will be expected to be

familiar with other similar studies

These studies are commonly refuted as not crediblelsquo by opponents of the capital punishment

who also deny the correlation between crime and death penalty as a fabricated relationship which

cannot be empirically established115116

A study of the relationship between capital punishment

and the incidence of murder was conducted for the UN in 1988 and updated in 2002 The

conclusion was ―The investigation has not provided scientific proof that executions have more

deterrent effect than life imprisonment It is unlikely that such evidence will ever come

Deterrence hypothesis finds no support in the survey117

Another counter-argument asserts that crime is still a persistent feature of the societies that

continue to award the death penalty while many of the abolitionist states enjoy low crime rates

This can be evidenced by comparing the crime rate in USA or Pakistan with that of Canada or

some European state In Canada for example the homicide rate per 100000 fell from a peak of

309 in 1975 the year before the abolition of the death penalty for murder to 241 in 1980 and

in 2003 27 years after abolition the homicide rate was 173 per 100000 44 per cent lower than

in 1975118

112

httpwwwdeathpenaltyinfoorgfacts-about-deterrence-and-death-penalty 113

httpdeathpenaltyproconorgviewresourcephpresourceID=002000 114

httpdeathpenaltyproconorgsourcefilesThe20Deterrent20Effect20of20Capital20Punishmentpdf ndash

Delegates should carefully examine certain parts of this document to establish the credibility of the assertions made

They should also invest in trying to locate studies that refute the assertions made in this and similar studies 115

httpwwwdeathpenaltyinfoorglaw-enforcement-views-deterrencelawenforcement 116

httpwwwdeathpenaltyinfoorgDonohueDeterpdf 117

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 118

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml

UNHRC 31 of 44

The lack of evidence on the production of a unique deterrent effect points to the danger of

relying on the deterrence hypothesis as a basis for public policy on the death penalty

Retribution amp Morality

An important terminology that delegates need to familiarize themselves with is that of

―retributivism119

It is defined as ―a policy of criminal justice that sponsors the punishment of

criminals in retribution for the harm they have inflicted120

Criminals deserve to be punished in

proportion to the gravity of their crime regardless of whether the victim or anyone else desires

it we may all deeply regret having to carry out the punishment but consider it warrantedlsquo is

what many say in defense of the theory121

The need for the establishment of a visibly just state arises from the potential risks of not having

one As has been visible in many developing countries with shaky legal systems when criminals

are not adequately punished for their unlawful behavior the public takes the law into its own

hands and deals out vigilante justice It is asserted that retributivism is essential for a functioning

society where individuals respect the supremacy of law

The concept of retribution in society is also grounded in religious beliefs The concept of an eye

for an eye has been a part of all three Abrahamic traditions However in the modern world it is

Islamic nations that still retain the practice based on these grounds Similar traditions can be

found in Hinduism Christianity and Buddhism as well as other religions in different parts of the

world In many non-secular countries the constitutions and state laws are derived from religious

doctrines

Opponents dismiss this aspect of the argument as being emotionally charged with little rational

logic to support the contention They claim that the establishment of capital punishment gives

birth to a culture of violence endorsed by the state It perpetuates the cycle of aggression and

brutality something which the state should be actively inhibiting not endorsing

Wrongful Convictions

The death penalty carries with it the danger of wrongfully convicting an innocent person for

crimes he did not commit There is the potential for capital punishment to evolve into sheer

miscarriage of justice as in certain circumstances states are often seen to rush the trials and

convict the accused hastily This practice takes foremost apparently in military courts often in

119

Cavadino M amp Dignan J (1997) The Penal System An Introduction (2nd ed) p 39 London Sage 120

httpdictionaryreferencecombrowseretributivism 121

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 32 of 44

the developing or lesser-developed countries where the system of law is not properly established

It is not however exclusive to these countries Examples can be drawn from countries like

Philippines Thailand Iran and Palestine to name just a few where executions are carried out at

alarming pace removing the possibility of reviews

On 15 August 2004 Atefah Rajabi Sahaaleh was hanged in a public square in the Iranian city of

Neka Her death sentence was imposed for adultery and crimes against chastity122123

Atefah

was executed a week after the trial was run Following the execution the Judge for the case was

arrested for investigation by the Intelligence Ministry The media reported that in addition to the

confession of his rape of Atefeh Judge Rezai who served as judge jury and executioner also

confessed to torturing her during interrogations to extract names of others she had relations with

No transcripts from court proceedings were recorded The State alleged that Atefah was 22 at the

time of her execution A witness later claimed The judge just looked at her body because of

the developed physique and declared her as 22124

ndash her birth certificate revealed she was born

in 1988 Furthermore Atefah did not have access to a proper defense where she could contest

charges leveled against her This is one example of many such cases of miscarriage of justice

Something that recurs in these cases is the failure of the police or prosecuting authorities to

prevent the use of unreliable witnesses the misuse of evidence or confessions and the provision

of inadequate defense representation The advent of DNA profiling and the use of it as positive

evidence in criminal cases has resulted in the exoneration of multiple death row inmates on

grounds of forensic evidence or lack thereof Since 1973 138 people have been released from

death row in the United States after it was proven that they were innocent125

In 2009 Paul

House was cleared of murder and exonerated in Tennessee USA after having served 22 years

on death row His innocence was proclaimed in light of substantial additional DNA testing and

further investigationlsquo 126

Amnesty International has noted examples of wrongful convictions from elsewhere as well

including Jamaica Japan China Nigeria and Tanzania127

Paul G Cassell a former law clerk to

the Chief Justice of USA stated the mistaken release of guilty murderers should be of far greater

concern than the speculative and heretofore nonexistent risk of the mistaken execution of an

innocent personlsquo highlighting the case made by those who advocate the death penalty even in

light of wrongful convictions128

122

httpwwwcosmolearningcomdocumentariesexecution-of-a-teenage-girl1 123

httpnewsbbccouk2hi5217424stm 124

httpnewsbbccouk2hi5217424stm 125

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 126

httparticlescnncom2009-05-13justicetennesseeexonerated_1_death-row-inmate-dna-evidence-house-

arrest_s=PMCRIME 127

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 128

httpdeathpenaltycurriculumorgstudentcaboutargumentstestimony3bhtm

UNHRC 33 of 44

Alternative to Death Penalty

All abolitionist states have reverted to the practice of sentencing criminals to life imprisonment

(some without parole) which is also termed as death by incarceration Widely regarded as a more

humane course of action life imprisonment is also alleged to be a more economical practice

While ensuring public safety by keeping criminals away from society this system also saves the

lives of innocent people who have been falsely or wrongfully convicted The setup inhibits and

curbs the cycle of violence while retaining the deterrence factor it is strongly asserted

Advocates for the death penalty are averse towards life imprisonment for a number of reasons

They cite the unreliability of the system as one of the flaws which impedes the possibility of

such a sentence being successful A certain James Moore serves as a valid example in this case

In 1962 James Moore raped and strangled 14-year-old Pamela Moss The victimlsquos parents opted

out of capital punishment for Moore and he was instead sentenced to life in prison without

parole Twenty years later a change in sentencing laws in 1982 renders James Moore eligible for

parole every two years129130

Kenneth McDuff is another example McDuff was convicted and sentenced to life imprisonment

Years later due to the issue of overcrowding in prisons McDuff was released following which

he killed eight more people McDufflsquos example is of an individual from a developed country

with an established legal system in place131

Overcrowding is a feature of prisons in developing

or lesser developed countries In many such states criminals have also been known to easily

break out from penitentiaries

The economic aspect of the debate is murky at best There is a lack of empirical data on the

subject which is why the arguments of both these sides cannot be settled beyond doubt

Advocates of capital punishment insist that the overall costs of the practice are far lesser than the

costs of housing an inmate for a lifetime132

They also suggest that the life imprisonment allows

criminals to conceive new habeas corpus petitions which on legal grounds cannot be rejected

automatically resulting in more trials

On the other hand substantial arguments are made which stress that the cost of legal proceedings

in capital cases is in truth more than that of other cases States and nations spend a significant

portion of the taxpayerlsquos money in meting out such punishments133

Delegates when addressing

this portion of the debate will need to be aware of the financial aspects of the issue as it forms

for many states an important part of whether capital punishment should be revoked or

not

129

httpwesleylowecomcphtmldeter 130

httpwwwnytimescomkeywordparole 131

httpwesleylowecomcphtmldeter 132

Ibid ndash view section titled Capital Punishment and its costslsquo 133

httpwwwamnestyusaorgour-workissuesdeath-penaltyus-death-penalty-factsdeath-penalty-cost

UNHRC 34 of 44

Imposition of Death Penalty on Juveniles

The prohibition on the death penalty for crimes committed by juvenile offendersmdashpersons under

age 18 at the time of the offensemdashis well established in international law specifically in the

Convention on the Rights of Child

ldquoNo child shall be subjected to torture or other cruel inhuman or degrading treatment or

punishment Neither capital punishment nor life imprisonment without possibility of release shall

be imposed for offences committed by persons below eighteen years of agerdquo134

- Article 37(a) Convention on the Rights of Child

ldquoSentence of death shall not be imposed for crimes committed by persons below eighteen years

of age and shall not be carried out on pregnant womenrdquo135

- Article 6(5) International Covenant on Civil and Political Rights

The treaties are a unanimously agreed set of non-negotiable standards and obligations By

acceding to the treaties and ratifying them governments commit to protecting and ensuring

childrens rights and to holding themselves accountable for this commitment before the

international community

Even though the practice of capital punishment on juveniles is relatively rare however in clear

contravention of international law nine countries have executed offenders who were juveniles at

the time of their crimes between 1990 and 2005136

These countries include the Peoples Republic

of China (PRC) the Democratic Republic of the Congo Iran Nigeria Pakistan Saudi Arabia

Sudan the United States and Yemen137

The USA has since moved to implement a ban on capital

punishment for juveniles However in most other countries of the preceding list the practice is

still enshrined in the judicial system Iranlsquos record in particular has been abominable over the last

decade It has carried out 39 executions of persons under the age of 18 since 2005 Presently

over a hundred individuals are placed on death row for crimes committed as juveniles The

executions of Mahmoud Asgari Ayaz Marhoni and Makwan Moloudzadeh became international

symbols of Irans child capital punishment and the judicial system that hands down such

134

httpwww2ohchrorgenglishlawcrchtm 135

httpwww2ohchrorgenglishlawccprhtm 136

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf - This document by the Human Rights Watch

called The Last Holdoutslsquo is a good summary of juvenile executions and should be reviewed 137

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 - Contains a list with

statistics and details of countries which have allowed the imposition of death sentence to juveniles

UNHRC 35 of 44

sentences138139140

Saudi Arabia and China too have questionable records that need to be

scrutinized further

While regional treaties and charters usually substantiate international law the Arab Human

Rights Charter of 2004 is unique among regional and international treaties in that the ban on the

juvenile death penalty in it is not absolute but merely optional141

Furthermore national laws in states that observe such a practice are in violation of

international legally-binding charters In Iran and Saudi Arabia laws usually treat a child the

same way as an adult criminal offender would be treated Article 10(3) of the International

Covenant on Civil and Political Rights emphasizes the need for demarcation between the

handling of children and that of adults in stating ―Juvenile offenders shall be segregated from

adults and be accorded treatment appropriate to their age and legal status142

The definition of a child in these Muslim states is unclear as adulthood is associated with

attainment of puberty which is a relative concept The Committee on the Rights of the Child in

January 2005 censured the Saudi government for its practice of imposing the death penalty on

juveniles terming it a serious violation of the fundamental rights The committee was deeply

alarmed over the discretionary power judges hold to treat juveniles as adults as was stated in

the committeelsquos report Iran too was strongly condemned following the release of an

international report highlighting the dire situation in Iran by the International for Human Rights 143

138

httpwwwfoxnewscomstory0293329798200html 139

httpnewsbbccouk2himiddle_east7130380stm 140

httpenwikipediaorgwikiCapital_punishmentIran 141

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 142

httpwww2ohchrorgenglishlawccprhtm 143

httpwwwfidhorgIMGpdfRapport_Iran_finalpdf

UNHRC 36 of 44

On August 19 2008 Iranian authorities executed Seyyed Reza Hejazi at Isfahan Central Prison

for his role in a murder committed in 2003 when he was 15 Hejazi was tried as an adult by

Branch 106 of the Isfahan General Court even if he did not qualify as one under international

stipulations and sentenced to death on November 14 2005144

In Saudi Arabia Mu`id bin

Husayn bin Abu al-Qasim bin `Ali Hakami was executed on July 10 2007 for a murder he

allegedly committed three years earlier when he was 13 years old145

The judges in these states

because of the implementation of the Sharialsquo law have a large amount of discretion with regard

to their rulings This discretion is often abused in the interrogation and judicial proceedings In

Pakistan authorities hanged Mutaber Khan in Peshawar Central Prison on June 13 2006 on

charges of murder of five people The fact that he was held in the juvenile wing of Peshawar

Central prison and the evidence presented by the accused confirming that his age was below 18

at the time of the killings were not taken into account during the trials and Mutaber was charged

as an adult in the case146

While the above does not cover exhaustively the practice of capitally punishing juveniles the

committee is expected to be well read on the matter The committee will be required to devise

ways to strictly apply the existing international law on the subject to curtail further deaths of

juveniles by states A series of recommendations on better implementation of international

covenants will be expected from the committee Delegates at UNHRC will also have to

familiarize themselves with the stipulations in the national laws of countries practicing juvenile

death penalties (Iran Saudi Arabia Pakistan Nigeria Sudan Yemen and UAE among others) to

discuss how these states are constitutionally able to bend international law and mete out the

illegal punishments

144

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 145

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 146

See FIDH and Human Rights Commission of Pakistan ―Slow march to the gallows and ―Condemned Prisoner

Executed Dawn Newspaper Karachi June 14 2005 httpwwwdawncom20060614nat16htm

UNHRC 37 of 44

Universality of Laws Incurring the Death Penalty

In countries which have not abolished the death penalty capital punishment may be imposed

only for the most serious crimes it being understood that their scope should not go beyond

intentional crimes with lethal or other extremely grave consequences

- Safeguards guaranteeing protection of the rights of those facing the death penalty147

Laws incurring the death penalty or capital crimes have certain uniformity the world over This

is of course barring states that are religiously affiliated and whose law systems are not secular

in nature The list of capital crimes for those states with non-secular legal systems is slightly

different The Human Rights Commission had decided that the imposition in the State party of

the death penalty for offences which cannot be characterized as the most serious including

apostasy committing a third homosexual act illicit sex embezzlement by officials and theft by

force are incompatible with Article 6 of the Covenant Economic offences including

embezzlement drug related offences political offences and robbery were also referred to148

The reason why looking into capital crimes and trying to garner a global impression of them is

important is that the death penalty can only realistically be abolished in a piecemeal way This

process will entail shortening the list of capital crimes The UN formally notes that ―in order

fully to guarantee the right to life provided for in article 3 of the Universal Declaration of

Human Rights the main objective to be pursued is that of progressively restricting the number of

offences for which capital punishment may be imposed with a view to the desirability of

abolishing this punishment in all countries149

The first established death penalty laws date as far back as the Eighteenth Century BC in the

Code of King Hammaurabi of Babylon which codified the death penalty for 25 different crimes

By the 1700s 222 crimes were punishable by death in Britain including stealing cutting down a

tree and robbing a rabbit warren In the 19th

century the death penalty was eliminated for over

100 of the 222 crimes punishable by death 150

In modern times the UN Special Rapporteur on

extrajudicial summary or arbitrary executions has stated that the death penalty should be

eliminated for economic crimes and drug-related offences and that the restrictions to its use

―exclude the possibility of death sentences for so-called victimless offences ndash including acts of

treason espionage and other vaguely defined acts usually described as crimes against the Statelsquo

or disloyaltylsquo and ―actions primarily related to prevailing moral values such as adultery and

prostitution as well as matters of sexual orientation151

147

httpwww2ohchrorgenglishlawpdfprotectionpdf 148

httpwwwunhchrchtbsdocnsf0bc310a747155dff88025655300537faeOpendocument 149

General Assembly resolution 2857 httpwwwunodcorgpdfcompendiumcompendium_2006_part_01_05pdf 150

httpdeathpenaltycurriculumorgstudentcabouthistoryhistoryPDF 151

httpswwwabofimedia24259report10pdf

UNHRC 38 of 44

Contrary to the made recommendations even political dissent warrants a death sentence in

several countries most notably in China and Iran In 2010 nearly 20 Kurdish people were

executed for political offences in Iran The country is known for keeping dissent especially from

the Kurds suppressed Most are executed on the grounds of moharebeh or enmity against God

Moreover challenging the power of the Ayatollah is also punishable by death These charges are

neither explicit nor in line with international guidelines over what crimes are punishable

capitally In Iran judges must handle such cases carefully as Iranian law provides for only one

punishment if an individual is found to be guilty of treason Libya too thwarts political dissent

with firm laws in place for punishing by death those who illegally form groups organizations or

associations against the state152

Saudi Arabia too is worth note for its vaguely phrased laws governing capital punishment

Intentional murder and crimes that spread ―mischief in the land (Fasad fil-ardh) merit death In

2010 the government announced that it had executed 26 people all by beheading Crimes that

―spread mischief include witchcraft and sorcery153

How is one convicted of witchcraft in the

21st century What can the international community do when regarding countries such as these

Treason arguably along with murder is the capital crime that has yet to be phased out by many

countries In some such as Brazil treason during warfare is the only crime for which a person

can be sentenced to death In the Gaza Strip under Hamas any sort of cooperation with Israeli

forces during military actions is also punishable by death In others including Algeria Bahrain

Iran and Malaysia treason is punishable by death in all circumstances The United States too has

federal laws governing treason under which traitors ―shall suffer death154

Child sex abuse is another crime that is widely held to merit the death penalty In Russia for

example according to the Russian Public Opinion Research Center an overwhelming majority

consider the death penalty to be an acceptable punishment especially in relation to molestation

155 In 2009 however Russias Constitutional Court effectively abolished the death penalty by

extending indefinitely a 13-year-old moratorium on capital punishment156

Indonesia has some of the strictest penalties for drug related crimes in the world Roughly half of

those on death row are incriminated with drug-related charges157

In 2008 though the most high

profile executions were of terrorists Three of those found responsible for the 2002 Bali

bombings were executed by shooting158

Generally speaking however a significant proportion of

152

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 153

httpwwwstategovgdrlrlshrrpt2010nea154472htm 154

httpdeathpenaltyproconorgviewresourcephpresourceID=1172 155

httpenrianrutrenddeath_penalty 156

httpwwwreuterscomarticle20091119idUSLJ330478 157

httpwwwnytimescom20080711worldasia11iht-indo114421132html 158

httpnewsbbccouk2hiasia-pacific7718246stm

UNHRC 39 of 44

the executions or death sentences recorded (in 2010) in China Egypt Indonesia Iran Laos

Libya Thailand United Arab Emirates and Yemen were for drug-related offences In December

2010 the amended Anti-Narcotics law came into force in Iran extending the scope of the death

penalty to include additional categories of illegal drugs (for example crystal meth) possession

of which became punishable by death Also around the same time the National Assembly of

Gambia voted to extend the scope of the death penalty by making the possession of more than

250g of heroin or cocaine an offence punishable by death159

Several states allow for the death penalty for crimes of blasphemy and other crimes for

nonviolent expression and association In Pakistan Aasia Bibi a Christian mother of five was

charged with blasphemy and sentenced to death after a trial largely believed to be unfair on 8

November 2010 She is currently on death row The country is also noted for its laws concerning

capital crimes The list includes 27 crimes most of which go beyond the notion of ―most serious

crimes as recommended by the International Covenant on Civil and Political Rights Extra-

marital sex and blasphemy are examples of some capital crimes in the country In December

2007 Pakistan voted against a United Nation General Assembly resolution for a moratorium on

the death penalty The year before however the nation amended its law on rape and adultery

charges which are no longer punishable by death160

As far back as 1989 recommendations have been made as to how to abolish the death penalty

Member states (of the UN) have been urged ―to publish for each category of offence for which

the death penalty is authorized and if possible on an annual basis information about the use of

the death penalty including the number of persons sentenced to death the number of executions

actually carried out the number of persons under sentence of death the number of death

sentences reversed or commuted on appeal and the number of instances in which clemency has

been granted and to include information on the extent to which the safeguards referred to above

are incorporated in national law161

The committee must inspect how far this recommendation

has been adopted and should seek to rectify the weaknesses in the system of gradually

abolishing the death penalty Can a target year be designated by which crimes meriting the death

penalty could be made universal How can countries with non-secular legal systems be brought

into the fold of international law

159

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 160

httpwwwfiacatorgenIMGpdfdppakistan-enpdf 161

httpgraduateinstitutechfacultyclaphamhrdocdocsecosocresolutiondeathpen1989html

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 10: UNHRCFINAL

UNHRC 6 of 44

Chinarsquos Violation of Reproductive Rights

While reproductive rights are not specifically mentioned in the Universal Declaration of Human

Rights they are widely understood to be an extension of the freedom of choice and right to life

They are to be granted equally to all humans without discrimination of race sex language or

religion under the United Nations Charter7 Reproductive rights embrace certain human rights

that are already recognized in national laws international human rights documents and other

relevant UN consensus documents The World Health Organization defines reproductive rights

in the following manner

ldquoReproductive rights rest on the recognition of the basic right of all couples and individuals to

decide freely and responsibly the number spacing and timing of their children and to have the

information and means to do so and the right to attain the highest standard of sexual and

reproductive health They also include the right of all to make decisions concerning reproduction

free of discrimination coercion and violence8rdquo

Only if individuals have the freedom to be in control of their sexual and reproductive lives can

uninhibited social development occur However the lack of any binding international covenant

on the subject is a grave state of affairs Soft laws in the form of non-binding measures are

often deemed too inadequate in mounting a challenge against the issue The United Nations

Human Rights Council has the capacity to make recommendations for the revision of the

aforementioned fact and will be something that the committee should focus on

Reproductive rights include in their spectrum the right to legal or safe abortion the right to

access quality reproductive healthcare the right to birth control and the right to education in

order to make well-informed reproductive choices without any coercion or violence9 Equality

and equity for men and women is of paramount importance while addressing such civil liberties

so that individuals are able to make free and informed choices in all spheres of life without any

discrimination of any kind An essential aspect of the debate is related to the right to privacy that

all individuals must be granted in the process of their decision-making

The provision of such personal human rights is notably absent in China With the stern

implementation of the one-childlsquo policy10

China has undertaken extreme measures at the cost

of innumerable human rights to curtail population growth Despite having previously ratified the

7 Article 1 of the UN Charter httpwwwunorgendocumentscharterchapter1shtml

8 Gender and reproductive rights home page httpwwwwhointreproductivehealthen

9Amnesty International USA

httpwwwamnestyusaorgStop_Violence_Against_Women_SVAWReproductive_Rightspagedoid=1108242ampn

1=3ampn2=39ampn3=1101 10

Article 18 of Population and Family Planning Law of Peoplelsquos Republic of China

httpwwwunescaporgesidpsispopulationdatabasepoplawslaw_chinachina20pop20and20family20plan

ningpdf

UNHRC 7 of 44

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in

198011

which prohibits coercion in family planning policies12

China continues to dictate the

reproductive lives of all its citizens While the Law on Population and Family Planning states

that one child is mostly merely encouraged abusive or coercive enforcement measures such as

forced abortions compulsory sterilizations and the forced insertion of intra-uterine devices after

abortions or births are common practices that are regularly documented13

Forced sterilizations are a troublingly common practice in other regions as well Perulsquos case is

important in this regard with its program of achieving a target number of sterilizations each

year sometimes numbering in the hundreds of thousands Indeed the government would

sometimes bribe women to undergo these procedures in exchange for food and medicine for

their existing children 14

A system of enhanced monitoring strategies is often regarded as one of

the solutions to the problem

Another pervasive measure employed by the state is the routine monitoring of the menstrual

cycle of women particularly those in the child-bearing age by family planning officials15

Their

employment is often contingent upon compliance with the policy The right to privacy is

severely breached in all such instances Furthermore unmarried women are not allowed to have

children and even married couples must apply for a birth permit before they can legally bear

children16

Analyzing the statelsquos penetrating involvement and interference in the private spheres

of individuals in light of existing treaties and conventions will be one of the committeelsquos tasks

Women and couples who defy the policy face fines amounting to several yearslsquo salary have their

access to social services cut and are even imprisoned in certain cases Their so-called black

childrenlsquo have no legal status in China meaning these children are not granted any rights

whatsoever and do not have access to education health or any other services provided by the

State There are an estimated 6 million undocumented children in China most of which are

believed to be girls17

The cases of Mao Hengfeng and Chen Guangchengserve as prime examples demonstrating the

inhumane nature of penalties handed out by the Chinese state to violators of the one-child

policy18

Mao a human rights activist was sentenced to two and a half years in prison after she

refused to have an abortion Chen was a blind self-taught lawyer and activist who was charged

and punished with more than four years in prison after exposing abuses in the implementation of

the one-child policy

11

httpunifem-eseasiaorgChina 12

httptreatiesunorgPagesViewDetailsaspxsrc=TREATYampmtdsg_no=IV-8ampchapter=4amplang=en 13

httpwwwrhrealitycheckorgnode7926 14

httpwwwwebsteredu~woolflmforcedsterilizationhtml 15

Page 2 httpwwwcensusgovpopulationinternationalfilesspSP73pdf 16

httpfactsanddetailscomchinaphpitemid=128ampcatid=4ampsubcatid=15 17

Ibid 18

httpwwwrhrealitycheckorgnode7926

UNHRC 8 of 44

The appalling state of affairs is further augmented by the actions the Chinese state takes to

impede the birth of conceived children It implements very strictly a program of compulsory

sterilization and forced abortions to minimize the birth of a second child in a family While

abortion itself may be a debatable and controversial topic the subset of such a controversy in the

form of a state-regulated forced abortion is excruciatingly black and white The undeniable

cruelty of forced abortions is not a deterrent strong enough for the Chinese government and the

phenomenon exists widely in China In fact the policy leads to an estimated 13 million abortions

every year with many of those ordered by local authorities Infanticide is a common practice

especially in the rural areas of the country19

Women are abducted by the state and at the cost of

their lives are forced to undergo forced and mostly unsafe abortions

In October of 2010 China forced an eight-month pregnant woman into an abortion for breaching

the one-child policy20

Government officials entered Xiao Aiyinglsquos residence hit and kicked her

in the stomach and subsequently dragged her to the hospital where doctors injected her with a

lethal drug to kill her unborn baby Xiaolsquos husband later described the incident They held her

hands behind her back and pushed her head against the wall and kicked her in the stomachlsquo The

animalistic discourse adopted by the government officials is a testimony to Chinalsquos open rebuke

for human rights More recently Womenlsquos Rights without Frontierslsquo and China Aidlsquo reported

the death of a six-month pregnant woman during a forced abortion on October 12th

201121

Jihong Ma was seized by Family Planning Officials for a forced abortion having violated the

one-child policy

While the positive environmental impact of the prevention of 300 to 400 million births may be

cited22

it must be noted the one-child policy privileges only the wealthy who can afford the

fines for additional births and have better access to contraceptives and health care while

punishing the poor who are financially crippled by the fines incurred for additional births

Moreover this policy punishes the children of the poor because they are more likely to be kept

hidden from the state and thus will not have access to health care and the education they need to

climb out of poverty In this way social disparity is further perpetuated within the existing

framework

Another adverse byproduct of Chinas 30-year-old family planning policy is the gender

imbalance that is now manifested most clearly among those of marrying age The British

Medical Journal claimed that in 2005 there were 32 million more males than females (under the

age of 20) in China23

Even though China banned prenatal sex screening in 199424

illegal

ultrasound tests allow prospective parents to choose the gender they prefer for their only child

19

httpwwwdailymailcouknewsarticle-1322601China-forces-woman-abortion-EIGHT-months-breaching-

child-policyhtml 20

Ibid 21

httpwwwwomensrightswithoutfrontiersorgblogp=429 22

―Has Chinas one-child policy worked httpnewsbbccouk2hiasia-pacific7000931stm 23

British Medical Journal BMJ 2009 338b1211 httpwwwbmjcomcontent338bmjb1211full 24

―A Brief History of Chinas One-Child Policy httpwwwtimecomtimeworldarticle08599191286100html

UNHRC 9 of 44

creating a massive imbalance This imbalance will lead to drastic results in the next few years an

implication the committee needs to take in account when establishing a framework for

responding to the issue

The Human Rights Council conducted a Universal Periodic Review of China in 200925

to much

international consternation and surprise the report lacked substantial evidence implicating

China and was instead found to be extremely vague The role of the United Nations in defining

and drawing attention to the issue is of key significance and the Human Rights Council must

make recommendations on how the United Nations can enhance its capacity in laying the

foundations for the case The Council can also make recommendations regarding the changes

that can be brought about in the conduct of the Review and otherwise in order to be able to

contain the issue with lesser difficulty

The committee will be called upon to review reproductive rights in detail including the implicit

and explicit consequences on the people of China Access to reproductive healthcare is a

problem the world over and is often consciously violated by states Is there a way to control

these violations perhaps through devising enhanced monitoring strategies

The Case of Internet Censorship in China and the Right to Free Speech

Everyone has the right to freedom of opinion and expression this right includes freedom to hold

opinions without interference and to seek receive and impart information and ideas through any

media and regardless of frontiers26

- Article 19 Universal Declaration of Human Rights

Everyone shall have the right to freedom of expression this right shall include freedom to seek

receive and impart information and ideas of all kinds regardless of frontiers either orally in

writing or in print in the form of art or through any other media of his choice 27

- Article 19 (2) International Covenant on Civil and

Political Rights

The Peoplelsquos Republic of China along with being the most populous region of the world is also

home to the worldlsquos largest collection of internet users According to Xinhua Chinalsquos state-run

English news agency Chinalsquos internet user ship exceeded 500 million users as of September

201128

China is also the worldlsquos largest media market However despite these impressive

statistics it is both interesting and disturbing to note that the Republic is also remarkable for its

25

httplibohchrorgHRBodiesUPRDocumentsSession4CNA_HRC_WG6_4_CHN_3_Epdf 26

httpwwwohchrorgENUDHRDocumentsUDHR_Translationsengpdf The Universal Declaration of Human

Rights 27

httpwww2ohchrorgenglishlawpdfccprpdf The International Covenant on Civil and Political Rights 28

httpnewsxinhuanetcomenglish2010china2011-0929c_131167919htm

UNHRC 10 of 44

censorship history About a dozen government bodies control internet usage including the

Ministry of Public Security29

It has been noted that while the Chinese advertising industry is

booming this freedom does not extend to editorial content of newspapers30

This phenomenon of

Chinese censorship has been labeled in the mainstream global media as the Great Firewall of

China The Firewall serves to filter both the information coming into China as well as

information generated within the nation It is beyond being a clever pun a matter of concern for

the committee because of its repressive characteristic The State imposes such extreme

restrictions of freedom of information under the premise of protection of its nationalistic

interests However its negative connotation is much obvious and its resemblance to Orwelllsquos

Ministry of Truth and the notion of thought control is uncanny The Peoplelsquos Republic has signed

(not ratified) the International Covenant on Civil and Political Rights The committee can look

into the reasons behind this as well as assess current global membership to the covenant

Chinalsquos Internet censorship is centered on the control of political thought The Measures on the

Administration of Internet Information Services and the Provisions on the Administration of

Internet News and Information Services are the two main instruments used to do so31

Section 19

of the latter deserves special attention and casts its scope to prohibit activities that disrupt

―national policies on religion propagating evil cults and feudal superstitions jeopardize ―the

security of the nation harm ―integrity of the nationlsquos unity or ―the honor or the interests of the

nation among other things32

Regulations are so stringent that in 2008 only eight websites out

of a total of 430000 in Guangdong Province ndash Chinalsquos most populous region -- were able to

obtain news publication qualifications permits33

The Internet news and information services entities engaging in Internet news and information

services shall abide by the Constitution laws and regulations by persisting in providing service

for the people and serving socialism and guiding public opinion to protect the interests of the

nation and the public

- Article 3 Provisions on the Administration of Internet News and Information Services

The national report submitted by China to the Working Group for the Universal Periodic Review

in 2009 exhibited the governmentlsquos opinion that ―with such easy fast and diverse ways of

gaining access to information and expressing opinion including criticism of the Government

Chinese citizens are enjoying an entirely new lifestyle34

According to a white paper published

29

httpwwwhrworgreports2006china08063htm_ftnref28 30

httpnewsbbccouk2hiafricacountry_profiles1287798stm 31

httpwwwhrichinaorgcrfarticle3244 32

httpwwwchinaitlaworgp1=printampp2=051006175116 Provisions on the Administration of Internet News and

Information Services

Please peruse the following httpwwwhrworgreports2006china08063htm for commentary on the Provisions 33

Ibid 34

httplibohchrorgHRBodiesUPRDocumentsSession4CNA_HRC_WG6_4_CHN_1_Epdf

UNHRC 11 of 44

in 2008 by the Information Office of the State Council the internet is a ―crystallization of human

wisdom and ―Chinese citizens fully enjoy freedom of speech on the internet 35

Chinalsquos policies have relevance beyond

their contravention of what may seem to be

abstract principles China has jailed the

largest number of internet dissidents the

world over The case of Liu Shaokun for

example is a notable one He was a

teacher in Sichuan province which had

been hit in 2008 by a ravaging earthquake

around the time of the Summer Olympics

in Beijing China had been praised for

allowing reporters to openly cover the

earthquake Much of this openness however was part of a bid to soothe the international

community and project Beijinglsquos image as being the perfect venue for the Olympics Shaokun

however was sentenced to a year of labor for posting photographs of schools affected by the

earthquake He is among countless others who have been silenced36

When the Arab Spring flowered over the Middle East China cracked down on many social

networking sites to curb pro-democracy sentiments Amongst these was LinkedIn blocked over

the fact that one of its users had mentioned the possibility of a ―Jasmine Revolution in China37

The government blocks discussions about the Dalai Lama the Tiananmen Square protests and

the Falun Gong spiritual movement among other things In April of 2007 the Chinese version of

MySpace launched but lacked discussion forums centered on the aforementioned topics among

others including Taiwanlsquos independence In 2010 Google considered withdrawing its services

from China after a spur of cyber-attacks on email accounts of human rights activists 38

Google

and the government reached a deal whereby Google operated by Chinese guidelines within

mainland China However Google has a non-censored operation running in Hong Kong to

which it started routing customers in 2010 when it had concerns over Google accounts being

hacked by authorities It is testament to Chinese control that companies such as Google are

forced to enter the internet market on its terms Other instances of well renowned internet

websites being blocked or affronted include Twitter being banned during the 20th

anniversary of

the Tiananmen killings

The Committee to Protect Journalists ranks China as one of the worst internet censors The

Chinese government has been alleged of carrying out ―spear-phishing whereby spying software

disguised as legitimate emails is installed on computers that belong invariably to journalists

35

httpchinaorgcngovernmentwhitepapernode_7093508htm 36

httpcpjorgreports201012cpj-journalist-prison-census-iran-china-highest-14-yearsphp 37

httpwwwbbccouknewstechnology-12586462 38

httpnewsbbccouk2hi8460129stm Please look at this link for a timeline of Chinalsquos internet history

UNHRC 12 of 44

Victims included those writing about Liu Xiaobo the imprisoned human rights defender who

received the Nobel Peace Prize in 201039

According to statistics over 80 of Chinas netizens rely mainly on the Internet for news 40

With this state of affairs and increasing dependence the world over on the internet as a major

source of information discussing information monopolies is crucial To isolate a country of over

a billion and deny it access to information in the age of technology may not seem a palpable

physical or otherwise contravention of human rights however its consequences are

tremendous While one may think that media censorship is restricted to dictatorial regimes the

case of China serves to refute that line of thought Media censorship is prevalent even in

countries as varied as Indonesia India Mexico and Russia ndash all of whom rank relatively low on

the Press Freedom Index41

Looking at instances worldwide and the justifications given for

restricting rights will be a useful direction to take while researching

The following website is a useful tool to check the status of websites in China

httpwwwgreatfirewallofchinaorg

Political Prisoners in China and Illegal Detention

Political prisoners are those whose imprisonment is carried out arbitrarily on contestable and

controversial grounds Governments detain certain individuals on the basis of allegedly valid

grounds which are not always disclosed or declared Many detainees charge existence of ulterior

motives or extrajudicial reasons on part of the state for their detention The phenomenon of

political prisoners is often associated with closed regimes such as Burma and the DPRK

However the Peoplelsquos Republic of China too does not escape scrutiny when the topic of political

prisoners is at hand The phenomenon of political prisoners resonates so loudly in the

international spheres particularly because governments deny the existence of political prisoners

they claim that all detainees are lawfully held under criminal law The unfair detainment of

persons or the capture of people to serve the interests of a government contravenes many human

rights including freedom of expression association and assembly Indeed a countrylsquos political

imprisonment record is one of the crucial indicators of its human rights situation

Amnesty International views political prisoners as prisoners of conscience These are more

specifically ―people who have been jailed because of their political religious or other

conscientiously-held beliefs ethnic origin sex color language national or social origin

economic status birth sexual orientation or other status42

39

httpwwwcpjorgreports201105the-10-tools-of-online-oppressorsphp 40

httpchinaorgcngovernmentwhitepapernode_7093508htm 41

httpenrsforgpress-freedom-index-20101034html 42

httpwwwamnestyusaorgour-workissuesprisoners-and-people-at-riskprisoners-of-conscience

UNHRC 13 of 44

According to the (US) Congressional Executive Commission on China over 5000 cases of

politically or religiously motivated imprisonments have been made It has detailed documented

information on the status of 1452 of these prisoners and

notes that its information is far from complete and that the

true story of Chinalsquos political prisoners remains unknown 43

The plight of political prisoners in China is speculated upon

by various international organizations Among these is the

Human Rights Watch which has gone as far as labeling the

locations for holding political prisoners ―black jails and

―alleyways in hell Officially though the Chinese

government denies the existence of political prisoners Subsequent to Chinalsquos Universal Periodic

Review an outcome report was published which came under fire from various sides The Human

Rights Watch called the substance of the report to be ―manifestly so far removed from reality

that [it] would immediately discredit anybody that adopted them in a report 44

In the report of

the UNHRC Working Group subsequent to Chinalsquos UPR it is stated that the Chinese

government does not use ―state secrets to suppress human rights defenders 45

It is precisely this

situation that our simulation wishes to remedy discussion should be fact based

The ground realities are different In 2010 Chinese activist and human rights defender Mr Liu

Xiaobo was awarded the Nobel Peace Prize He was jailed by Chinese authorities for

distributing his ―Charter 08 a document that called for freedom of expression and of assembly

among other things The government incarcerated him for an 11 year time-period on the charge

of subversion Subsequent to the prize the Chinese government came down hard on other human

rights activists Indeed those celebrating the awarding of the prize to Mr Xiaobo were arrested

arbitrarily While distributing fliers celebrating the win many were imprisoned on the grounds of

―inciting subversion of state power The Report of the Special Rapporteur on the situation of

human rights defenders published in 2011 makes mention of these facts46

The Chinese

government labeled the award an ―obscenity It is vague allegations such as these that allow

governments to thwart dissidents As expected though according to the report of the HRC

Working Group No individual or press has been penalized for voicing their opinions or

views47

When discussing China and political prisoners it is important to mention the Falun Gong

movement It is a spiritual variant of Buddhism and originated in China on the basis of the

teachings of its founder Li Hongzhi The movement was supported within the Chinese

43

httpwwwceccgovpagesvictims20101010_PPD_AR10pdfPHPSESSID=705596c0e91f35e392e6f0ecbb78d6

7c 44

httpwwwhrworgennews20090610human-rights-watch-statement-upr-outcome-report-china 45

httpdaccess-dds-nyunorgdocUNDOCGENG0916299PDFG0916299pdfOpenElement 46

httpwww2ohchrorgenglishissuesdefendersdocsAHRC1644Add1_EFSonlypdf Page 63 47

httpdaccess-dds-nyunorgdocUNDOCGENG0916299PDFG0916299pdfOpenElement Para 71

UNHRC 14 of 44

officialdom initially However Falun Gonglsquos popularity within the masses as well as its

independence from the state and its spiritual teachings was soon perceived as a threat to the

government By the late 1990lsquos the Chinese government cracked down on the movement and

labeled it as a heretical organization Chinese legislation uses the expression ―Xiejiao zuzhi to

refer to a wide range of sectarian or unorthodox religious groups which do not meet official

approval The Falun Gong movement is included in this list48

The Falun Gong followers are the

worldlsquos largest group of prisoners of conscience The PRC often picks up practitioners and

accuses them of ―using an evil cult to destroy implementation of the law 49

China with its strict non-religious government did not take kindly to this new movement that

had garnered millions of followers both within China and internationally between 1992 and the

crackdown in 1999 Today Falun Gong is practiced freely in more than 70 countries around the

world with clubs and associations existing in a range of settings50

Beginning at the turn of the

millennium the authorities started to ban access to websites that contained material about the

movement Indeed a search on the movement on Chinalsquos Xinhua News Agency website will

even today yield nothing (It may be an interesting experiment for delegates to conduct) Those

who reported the initial crackdown were ―followed detained interrogated and threatened

according to a letter written in 1999 by The Foreign Correspondents Club (FCC) of China51

The Falun Gong movementlsquos official website deals with its persecution thus The complex

rationale behind the persecution can be broken into four elements a paranoid dictators fear of

Falun Gongs meteoric growth and soaring popularity that same dictators intense jealousy of

Falun Dafas popularity the inherent conflict between the communist regimes savage political

ideology and its polar oppositemdashFalun Dafas principles of Truthfulness Benevolence

Forbearance and the very nature of communism which to sustain itself requires periodically

labeling a small segment of the population as the class enemy to struggle against52

The Chinese crackdown on Falun Gong practitioners involved a ban on practicing it by the

Chinese Communist Party whose members as aforementioned were interestingly initially

adherents to the movement in significant numbers Indeed the party was divided from within

over their stance on the movement The government formulated an ―anti-cult law a few months

after issuing a warrant for the founderlsquos arrest ―During the first two years of the crackdown

between 150 and 450 group leaders and other members were tried for various crimes and

sentenced to prison terms of up to 18-20 years53

To this day ―central leaders turn a blind eye to

48

httpwwwamnestyorgenlibraryassetASA170112000en7a361a8e-df70-11dd-acaa-

7d9091d4638fasa170112000enhtml 49

httpwww2ohchrorgenglishissuesdefendersdocsAHRC1644Add1_EFSonlypdf 50

httpwwwfaluninfonettopic22 51

httpwwwamnestyorgenlibraryassetASA170112000en7a361a8e-df70-11dd-acaa-

7d9091d4638fasa170112000enhtml 52

httpwwwfalundafaorgengfaqshtmlpersecution 53

httpfpcstategovdocumentsorganization67820pdf Page 4

UNHRC 15 of 44

local methods of suppression against unrepentant practitioners including the reported use of

torture54

Also worth noting is the fact that Chinalsquos judicial system has been alleged to be anything but

conducive to providing justice to those using the system Indeed it is a repressive tool used by

the government to silence dissent China with its vast land mass and various provinces and

municipalities must work hard to keep its Centre strong Scores of individuals who are more

obscure than human rights activists and such are imprisoned by the government while ironically

seeking justice It has long been the custom for people of the countryside to seek justice in

Beijing if they felt that their local authorities had treated them unfairly However modern China

has not taken kindly to this tradition Local authorities are evaluated on the basis of the number

of complaints the Centre receives about them Thus they have a vested interest in thwarting the

reports of any complaints about them to Beijing Those who complain are whisked off to black

jails where ―detainees are denied access to legal counsel and in most cases contact with family

and friends They ―are kept under constant surveillance and subject to often arbitrary physical

and psychological abuse55

Chinalsquos record with regard to political prisoners and its tradition of suppressing dissent are

exacerbated by the sheer scale on which dissent is thwarted The aspect of potential torture of

prisoners further complicates the issue It is troubling that the issue of Chinese political prisoners

only gained international prominence with the case of Mr Liu Xiaobo It is not the only nation in

the world to adopt such strict policies in order to further its own ideology and the committee will

do well to ruminate upon how this tradition can be discontinued so as to allow people their

essential political freedoms

The Infringement of Rights in the Conflict with Tibet

Despite the furor that has been inconsistently directed towards its human rights record China

continues to impose tightening restrictions on rights of expression association and assembly

The Chinese government carries on devising social and economic changes that retain its firm

authority over its citizens which in turn enables a host of human rights violations In the context

of Tibet China has failed to address the grievances of the people there who have been made

victims of social discrimination and have unequal access to opportunities Scores of Tibetans are

marginalized and detained for their religious inclinations which are further suppressed by the

imposition of intense patriotic educationlsquo campaigns whereby socialism is furthered and all sorts

of religious or individualistic tendencies are thwarted

54

Ibid Page 5 55

httpwwwhrworgreports20091112alleyway-hell-0 Page 4

UNHRC 16 of 44

Despite its totalitarian approach China refuses to accept responsibility for the issue Instead it

blames westernlsquo forces for trying to instigate separatism56

The indifference on the part of

China with particular regard to Tibet is apparent with Chinese authoritieslsquo continuous rejection

of ―inconvenient requests by UN human rights experts for visits to the Tibet Autonomous

Region57

During 1912 and 1951 Tibet underwent a period of de facto independence58

While it was still

territorially a part of China it enjoyed relative freedom in its political discourse Tibetan

autonomy was confined within the context of Chinese suzerainty and should not be interpreted

as unrestrained political independence Since 1951 however the Chinese government has taken

steps to ensure its absolute and undeniable dominance over Tibet from which emanates the strife

under discussion Gross violations of human rights have taken place in China administered by

officials with the purpose of cultivating consent with regard to its control over the region

Suppression has led to the inevitable extensive discontent in Tibet a fury which was unleashed

in 2008 The Tibetan unrest of 2008 was a series of protests and demonstrations - not merely in

the Tibet Autonomous Region but elsewhere as well - that later transformed into rioting burning

looting and even killing59

The rioters set fire to state vehicles and clashed violently with the

police installed in the region The crackdown of Chinese authorities in response to the riots was

severe resulting in deaths on both sides and mass imprisonment by state authorities The degree

to which human rights were violated and abused during this crackdown cannot be overstated

The Chinese also revoked the freedom of sharing of information and imposed a ban on the entry

of media officials in the region to contain

information about the unrest and play down

protests60

A Tibetan Government in Exile has existed in India

since 1959 established by the 14th

Dalai Lama61

This Central Tibetan Administration considers the

issue as an illegitimate military occupation by the

Chinese state The Administration works with the

agendas of restoration of freedom in Tibet and rehabilitation of Tibetan refugees

Historical facts refute such a fallacy however The simple reality that the installation of the 14th Dalai Lama

needed the approval of the national government is sufficient proof that Tibet did not possess any independent power

during that period ndash (httpwwwchinaorgcne-whitetibet9-2htm)

56

httpwwwunhcrorgrefworldcountryAMNESTYCHN49b8dfc11a0html 57

Ibid 58

Grunfeld A Tom Reassessing Tibet Policy 2000 59

httpwwwnytimescom20080316worldasia16iht-tibet111134870html 60

Watts Jonathan Branigan Tania (March 18 2008) Tension rises as armed police mass in capital The

Guardian (London) Retrieved November 1 2011 61

httpwwwtibetnetenindexphpid=14

UNHRC 17 of 44

The censured freedom of expression is one of the multiple infringements on rights that are

imposed by China on Tibet Tibetans are denied the basic right to articulate their views through

political discourse Human rights activists advocate the freedom of speech for Tibetans under the

existing and future political arrangements Religious and political figures in Tibet are placed

under house arrest limiting their freedom of movement (in contradiction to article 13 of the

Universal Declaration of Human Rights)62

As was highlighted during the unrest in 2008 China

has often stripped the Tibetan population of its fundamental rights to associate and assemble In

2000 nine Tibetan prisoners in Kandze were charged for participating in a peaceful protest to

five-year prison terms in October 1999 (which were later increased to ten-year terms)63

This example leads us to another crop of abuse conducted overtly by Chinese authorities

arbitrary detention Article 9 of the Universal Declaration of Human Rights reads ―No one shall

be subjected to arbitrary arrest detention or exile64

Chinese law however permits authorities

to detain persons without formally arresting or charging them and persons may be sentenced

administratively to up to 3 years in reeducation-through-labor camps and other similar facilities

without a trial

Chinese authorities have been unresponsive to concerns expressed by the United Nations

Working Group on Arbitrary Detention No counter-explanation was given either over the case

of three Tibetans who had their sentences extended for staging a peaceful political protest during

the Working Groups visit to Drapchi in October 1997 despite international pressure65

Infinite

examples of arbitrary arrests and detentions exist in China international authorities have called

on China to cease this practice and release such detainees immediately absent evidence that they

have engaged in criminal acts No state can or should be able to hold anyone for engaging in

peaceful political activity All humans

should be granted internationally recognized

due-process protections which includes the

right to be informed of the charges leveled

against them66

The question of whether

these detainees are given an impartial trial if

one at all is not even raised

In addition to the arrests carried out in

violation of international law there are

grave evidences of abuses during detention

62

httpwwwhrworgnews20000612human-rights-violations-tibet 63

Ibid 64

httpwwwunorgendocumentsudhr 65

httpwwwhrworgnews20000612human-rights-violations-tibet 66

httpwwwhrworgnews20000612human-rights-violations-tibet

UNHRC 18 of 44

Incidences of beatings at time of arrest and torture (including the administration of electric

shocks and deprivation of food and medical treatment)67

during custody are widely reported

These are not isolated cases rather the product of a holistic policy of dealing with political

dissidents In one notable incident in May 1998 political prisoners in Drapchi staged major

protests to coincide with a visit from a European Union delegation The protests were non-

violent but the authorities reaction was severe several protestors were shot at and one monk

Lobsang Gelek subsequently died68

The Convention Against Torture (CAT ratified by China in 1988) requires the state to prevent

torture and punish those in violation of the law China has not amended its own laws to comply

with even the first article of CAT69

Such practices explicitly stand in contempt of Article 5 of

the Universal Declaration of Rights which censures the use of torture or cruel treatment as

punishment Dr Manfred Nowak the UN Special Rapporteur on Torture stated that ―he was

struck by the strictness of prison discipline and a palpable level of fear and self-censorship when

talking to detainees following his brief assessment of Chinese and Tibetan prisons in 200570

The committee will be looked upon to review ways in which the situation can be monitored more

carefully and what responses if any can be cultivated to impede similar future actions by

China

The continued violations of religious freedom and implementation of policies designed to

diminish religious practices by the State to serve its political needs is a cause of concern Again

referring to the Universal Declaration of Human Rights Article 18 reads ―Everyone has the right

to freedom ofhellipreligion this right includes freedomhellipto manifest his religion or belief in

teaching practice worship and observance71

The policies implemented by Chinese authorities

through use of coercion violent repression and imprisonment impinge upon the freedom of

Tibetans to practice their religion freely China has also strictly enforced re-education programs

for dissident factors within the state The program is aimed at ―combating separatism protecting

stability and promoting development and is intended to reform the political ideology of people

who refuse to accept state control of what they perceive as vital aspects of their religious lives

and beliefs The committee will be expected to deliberate upon the protection of religious

freedom and practices of individuals as well as the validity of these re-education programs in

light of human rights and liberties

Tibet is not the only region where political tensions surrounding autonomy run high The

Kosovo-Serbian conflict is pertinent to recall The Republic of Kosovo declared itself to be an

independent entity on February 17 2008 As of 11 October 2011 85 UN states recognize the

independence of Kosovo However Serbia maintains that Kosovo is a UN governed entity under

67

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 68

httpwwwfreetibetorgabouttorture 69

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 70

Ibid 71

httpwwwunorgendocumentsudhr

UNHRC 19 of 44

its sovereignty Russia and China are among those who do not recognize the Republic while the

USA UK and France have recognized Kosovolsquos declaration of independence This highlights the

rift between the United Nations Security Council over the issue The case of Tibet is all the more

important in light of the fact that many such pockets exist in the world struggling for self-

determination

Media Links

httpwwwfreetibetorgnewsmedia2008-protests-summary

httpwwwguardiancoukworldgallery2008mar19tibetchinapicture=333178281ampindex=7

Chinarsquos Violation of Ethnic Minority Rights

One of the greatest blemishes on Chinalsquos human rights record is in the area of ethnic minorities

and the extent to which China protects ethnic minority rights On paper Chinalsquos policies are

based on ethnic equality and regional ethnic autonomy Ethnic minorities are supposed to be

benefitting from preferential policies in the political economic cultural and educational spheres

However the ground realities are infinitely different Questions have been raised over the extent

to which the government fairly provides services to these minorities and allocates resources

equally to them The Chinese government is seen to largely prefer its Han majority The

minorities claim they are exploited for their resources and in turn not even provided with the

same level of social services as the Han people China is an atheistic government and the fact

that many ethnicities garner their identity in major part from their religious affiliation leads to a

precarious situation The Mongols Tibetans and Uighurs all come to mind when discussing the

issue of China and ethnic minority rights

―Everyone is entitled to all the rights and freedoms set forth in this Declaration without

distinction of any kind such as race colour sex language religion political or other opinion

national or social origin property birth or other status Furthermore no distinction shall be

made on the basis of the political jurisdictional or international status of the country or

territory to which a person belongs whether it be independent trust non-self-governing or

under any other limitation of sovereignty

- Article 2 Universal Declaration of Human Rights

The International Convention on the Elimination of Racial Discrimination defines racial

discrimination as any distinction exclusion restriction or preference based on race colour

descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the

recognition enjoyment or exercise on an equal footing of human rights and fundamental

UNHRC 20 of 44

freedoms in the political economic social cultural or any other field of public life72

It is due to

this that the international community has adopted the norm of subsuming ethnicity under the

terminology of race

―The Peoples Republic of China is a united multi-ethnic country So far 56 ethnic groups have

been identified and recognized by the central government The population of various ethnic

groups differs greatly While the Han ethnic group has the largest population and that of the

other 55 ethnic groups is relatively small so they are customarily referred to as ethnic

minoritieslsquo According to the fifth national census conducted in 2000 the population of all the

55 ethnic minority groups totaled 10449 million accounting for 841 percent of the total

population of China73

Chinas official 55 minorities are located primarily in the south west

and north of China Only Tibet and Xinjiang have a majority population of official minorities

while all other provinces municipalities and regions of China have a Han majority

One of Chinalsquos autonomous regions is the Xinjiang Uighur Autonomous Region (XUAR)

located in western China The area is vast accounting for one sixth of Chinalsquos land and houses

around 13 major ethnicities including the Uighurs who are a predominantly Muslim people with

origins in Central Asia The Uighurs have had strained ties with the state and have often resisted

Chinese authority74

In turn the Chinese government has reacted sometimes violently against

restless factions in the region One of the most passive aggressive forms of response on the part

of the Peoplelsquos Republic has been the encouragement of the migration of the Han people ndash

Chinalsquos ethnic majority ndash to the XUAR75

Around 90 of Xinjiangs population comprised of

Uighurs in 1949 now it is estimated that Uighurs make up only about 45 of the population76

The policies in Xinjiang are said to be designed to ―promote economic development not

demographic change In reality though the influx of migrants has amplified Uighur discontent

as Han and Uighurs compete over limited jobs and natural resources77

The United Stateslsquo

Congressional-Executive Commission on China reported that in 2006 the XPCC (Xinjiang

Production and Construction Core) reserved approximately 800 of 840 civil servant job openings

for Han Chinese78

One of the causes of the Han monopoly in the employment sector is the

linguistic advantage afforded to them and perpetuated by the education system As part of its

efforts to implicitly impose a unified culture the language policy was altered by the state with

an increased focus on use of Mandarin in schools at the expense of the local languages

Methods of education special to the ethnic peoples of the XUAR including the Muslim Uighurs

are suppressed For example a campaign by the PRC in 2001 targeted religious teachers and

72

httpwww2ohchrorgenglishlawcerdhtm 73

httpenglishgovcnofficial2005-0728content_18127htm 74

httpwwwcfrorgchinaeast-turkestan-islamic-movement-etimp9179 75

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p8 76

httpnewsbbccouk2hiasia-pacific3330803stm 77

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p4 78

httpwwwcolumbiaeducunewsclips20080801UighursTWPOSTpdf

UNHRC 21 of 44

endeavored to sever ties between mosques and groups involved in allegedly ―separatist

activities Around 8000 imams were required to undergo ―political reeducation in this regard

and become ―patriotic religious personalities Ethnic minorities are educated in ways that do not

allow them to learn their own languages or practice their own religion In 2001 for example a

Muslim girl was expelled from school for praying 79

Moreover in an attempt to further its socialist agenda and bind ethnic minorities together

minority cultural activities are often hindered In its place nationalistic values are given a

premium and integrated into society so as to tie the entire country in a unified Chinese foldlsquo

Resultantly an asymmetry with regards to the provision of services and protection of cultural

identity can be found in almost every ethnic minority region in the country The repression

against minorities has wider implications on the human rights situation for all This leads to

creation of a vindictive attitude among the minorities not only against the government but also

the Han majority

In July 2009 this attitude manifested itself in

the form of severe riots between the Han and

Uighur communities in Xinjianglsquos capital city

Urumqi Ethnic tensions elevated to the point

that police involvement was made necessary

According to Chinese state media at least 150

people were killed and more than 800 were

injured The riots were reportedly sparked by a

Uighur protest over the ethnically motivated

killing of two Uighur workers in the southern

province of Guangdong

On the topic of allegations of separatism it is interesting to note that post 911 it has been noted

that the Chinese government has used concerns about terrorism as a method for suppressing

ethnic activity This is possible through the characterization of certain ethnicities as having

fundamental leanings The Muslim Uighurs fell under fire for this very reason after the

September 2001 attacks

One of the ways that the Chinese government with its Han leanings has asserted its presence in

the region is through the smokescreen of the XPCC The Peoplelsquos Liberation Army and the

XPCC are present in the region per the government to ―consolidate border defense accelerate

79

wwwminorityrightsorgdownloadphpid=29 Page 30

UNHRC 22 of 44

Xinjianglsquos development and reduce the economic burden on local governments and the local

people of all ethnic groups80

The heavy militarization of ethnic minority

regions also enables the Chinese government

to quickly respond to skirmishes between the

minorities and the Han For example clashes

between the Uighurs and the Han in the

XUAR are quickly clamped down upon The

response by Chinese authorities always

focuses on the minority groups in the region

The typical response includes a period of

strike hardlsquo security measures during which the minorities are subjected to police patrols of

crowded areas identity checks street searches increased criminal investigations and accelerated

trials The measures also include mandatory political indoctrination classes for the Uighur

population Swift Chinese response to ethnic dissidence precludes the possibility of trying

protestersrioters under due process This phenomenon also contributes to the controversy of

China and its policy of arbitrary imprisonment

Essential to any countrylsquos social progress is the protection and provision of the basic rights to all

its citizens For a country like China which has a significant standing in the international

community the degree to which human rights are upheld comes under added scrutiny Minorities

need to be guaranteed provision of not only fundamental rights but additional ones that grant

them equal opportunities

Recent Developments

3 November 2010 UN Secretary General pushes China on human rights

Ban Ki-moon the United Nations secretary general has called on China to respect human rights

after critics accused him of dodging the issue on a trip to Beijing The UN secretary general met

Hu Jintao the Chinese president but failed to challenge Mr Hu on the imprisonment of Liu

Xiaobo the democracy activist who was awarded this years Nobel Peace prize and raise the

issue of human rights81

80

httpwwwchinaorgcne-white200305269htm 81

httpwwwtelegraphcouknewsworldnewsasiachina8107148UN-Secretary-General-pushes-China-on-human-

rightshtml

UNHRC 23 of 44

5 November 2011 Yeqing Ji from Shanghai China will most likely not be able to have children

after she said two forced abortions physically impaired her uterus82

8 September 2011 The Chinese government has renewed Googlelsquos license to allow it to

continue operating its local website in the country83

13 November 2011 Seven months ago

Chinese police detained the countrylsquos most prominent artist Ai Weiwei at the airport and drove

him to a hidden location It was the beginning of what is to be a two-and-a-half month nightmare

for the architect and sculptor who is also a former darling of the Communist Party who later

turned into an outspoken government critic Ai was held on vague charges of economic crimes

was kept in isolation and subjected to Kafka-esque interrogations84

April 19 2011 Amnesty International a 21-year-old monk Phuntsog set himself on fire in an

apparent anti-government protest in March 2011 Instead of putting out the flames Chinese

police beat the young monk creating huge resentment in the monastery85

At least 11 ethnic

Tibetans have been detained for protesting against the event and against government policies

They are at risk of torture and other ill-treatment86

29 May 2011 300 Tibetan monks detained in Kirti monastery by Chinese security forces87

15 September 2011 Chinese Uighurs economic fears

Amid ethnic tensions minority regards modernization plans in Xinjiang as favoring Han Chinese

migrants88

20 November 2011 Another of Chinalsquos minorities the Hui Muslims in Ningxia do not feel

stigmatized

―There is an important reason why Hui and Han Chinese get along with each other Unlike

Muslims of the other ethnic minorities like Uighur Kazakh Kyrgyz and Tajik the Hui Muslims

speak Mandarin just like the Hans89

82

httpabcnewsgocomBusinesswoman-china-forced-abortions-leaves-unable-

childrenstoryid=14880884Tsia7LIk6so 83

httpwwwbbccouknewsbusiness-14832392 84

httpwwwthedailybeastcomnewsweek20111113ai-weiwei-speaks-out-on-his-detentionhtml 85

httphradvorgaggregatorsources10 86

httpwwwamnestyorgenlibraryassetASA170212011end75f7611-be66-4d5a-9391-

c80c43501d56asa170212011enhtml 87

httphumanrightshouseorgArticles16503html 88

httpwwwaljazeeracomvideoasia20110920119158016969449html 89

httpwwwtodayszamancomnews-263322-chinas-hui-muslims-do-not-feel-stigmatizedhtml

UNHRC 24 of 44

Conclusion

The United Nations Human Rights Council at LUMUN 2012 will be looked upon to provide a

framework for the resolution of these issues in a universal context The scope of the issues

should be expanded and applied to countries other than China The committee will have to make

recommendations which have universal application and resolve all aspects of the issue

comprehensively For any queries related to the study guide please do contact either (or both)

the committee directors at the given addresses

UNHRC 25 of 44

Topic Area B Abolishing the Death Penalty

Introduction to the Topic Area

The death penalty is formally defined as the execution of an offender sentenced to death after

conviction by a court of law of a criminal offenselsquo90

The concept of a capital crime is subjective

and states have made use of this practice in response to multiple forms of crime The use of the

death penalty has produced much controversy with regard to its apparent violation of

fundamental human rights as delineated in the Universal Declaration of Human Rights and

subsequent human rights charters and treaties It is asserted that the use of death penalty is in

contravention to the peopleslsquo right to life promised to every individual under Article 3 of the

Declaration91

Moreover Article 2 of the Charter of Fundamental Rights of the European Union

lucidly bars the imposition of death penalty as a form of punishment92

Arguments against the

use of death penalty are also made on the grounds of inhumane methods which are employed to

see out the process Historically multiple methods have been used which include death by

hanging severing of the head lethal injection shooting and electrocution93

94

As a response states have made keen efforts to abolish

the death penalty particularly in the last two decades as

can be interpreted from the graph on the right which

represents the number of states that have abolished the

death penalty Countries belonging to the European

region with the exclusion of Russia and Belarus have

sought to revoke the use of the practice The death

penalty is most commonly seen to be a formal practice

in most of the developing countries The trend is

apparent in Latin America Africa and Asia

96 countries have formally abandoned the use of death penalty 58 countries allow the use95

Other states have abolished the penalty in practice but the laws remain in place for the

imposition of the penalty as a response to certain crimes The imposition of the death penalty has

90

httpwwwbritannicacomEBcheckedtopic93902capital-punishment 91

httpwwwunorgendocumentsudhr 92

httpwwweuroparleuropaeucharterpdftext_enpdf 93

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffle

re-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 94

httpwwwdeathpenaltyinfoorgmethods-execution 95

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf

Figure 1 (Drag to enlarge)

UNHRC 26 of 44

seen a decline over the recent years with a fall in the number of executions that take place

annually It would however be incorrect to assume that the practice is not prevalent or widely in

effect Amnesty International reported that at least 2024 new death sentences were imposed in 67

countries in 2010 Moreover there were at least 17833 people sentenced to death worldwide at

the end of 201096

Again these are minimum figures which are the safest that can be inferred

from the given research There were 527 known executions carried out in 2010 globally97

This

figure however does not include the number of executions that took place in China where

analysts believe that more than a thousand people were put to death in the past year

The statistics represent the number of people executed through capital punishment One way to

formally define capital punishment is to regard it as the state sanctioned killing of an individual

through a judicial process as a punishment for a crime (defined as a capital crime by the state)98

Capital punishment is the most obvious and prevalent manifestation of the death penalty It is

often perceived as a statelsquos right in order to preserve law and order against any individual who

engages in serious crimes that threaten other individuals or the state Those who advocate against

the use of capital punishment label it as a symptom of a culture of violence not a solution to

itlsquo99

The controversy surrounding the topic is based on the legal ethical and moral acceptability

of the statelsquos right to an individuallsquos life The debate entails several social and economic factors

some of which will be reviewed in closer detail in the relevant section of this guide

One of the most striking aspects related to the issue is the imposition of the capital punishment

on juveniles The sentencing of juveniles to death is in clear breach of international law The

morality and validity of such a practice is often called into question and has been put under

relentless scrutiny despite all of which the practice is still carried out in a number of countries

Historically the United States China and Iran have the worst records relating to juvenile death

sentences100

The study guide also includes a separate section for the case of juveniles in which

the legal and social aspects of the problems are detailed

As stated states have made use of the death penalty to punish crimes of varying natures The use

of the death penalty is reserved for only the most seriouslsquo crimes as put forth in international

law101

The notion of a capital crime however is a subjective one states that have doled out

death sentences have defined it differently In certain countries the death penalty is only used to

charge criminals accused of war crimes In other countries the penalty is reserved for crimes like

96

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf 97

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010 98

httpusersrcncommwooddeathpenhtml 99

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 100

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 101

httpwwwunorgdocumentsecosocdocs1995e1995-78htm

UNHRC 27 of 44

murder rape or even robbery States also use the death penalty against individuals who are guilty

of treason The issue however is that many states practicing the death penalty impose the

punishment even when the crimes do not meet the threshold for the aforementioned most

seriouslsquo crimes The ability of states to define what constitutes as a capital crime has led to states

abusing their powers as has been observed in the sentences ordained by military courts

Moreover even the radicals who make the argument of the punishment fitting the crime agree

that in many instances individuals have been executed for softlsquo crimes crimes that were

certainly not tantamount to charges of murder or crimes against humanity The issue of apparent

violations of human rights is further exacerbated in these instances The study guide will discuss

the universal crimes that have resulted in the awarding of the death penalty and examine the

issue further The committee will be expected to discuss the feasibility of drawing up an

international definition of crimes which in isolated instances perhaps may be appropriate for a

sentence like the death penalty

Another pertinent aspect surrounding the debate is that of extrajudicial killings The execution of

a person by state authorities without the authority of a judicial proceeding is termed as an

extrajudicial killing Many states have used extrajudicial killings to establish their authority and

order without having to wade through the legal process By doing so they have deprived scores

of people of their fundamental right to free and fair trials Governments have also employed this

tactic to exercise political aggression and to suppress dissent A particular point of concern is the

fact that some states have made use of these killings even when they have officially revoked the

imposition of the death penalty Extrajudicial killings are carried out persistently in many

countries ndash the list includes countries like Iran Iraq Israel Philippines102

Most recently the

killing of Anwar al-Awlaki and Samir Khan in Yemen by a sanctioned National Security Council

move by the USA was an example of states embarking on such paths to eliminate threats to

national securitylsquo103

102

Multiple citations for each country can be found in the second paragraph article titled Extrajudicial killinglsquo on

Wikipedia 103

httpwwwtelegraphcouknewsworldnewsbarackobama7564581Barack-Obama-orders-killing-of-US-cleric-

Anwar-al-Awlakihtml

UNHRC 28 of 44

Wrongful convictions lead many to believe in the inherent incapacity of the death penalty to

serve justice On September 21 2011 US citizen Troy Davis was executed in Georgia after

which seven of the nine witnesses who testified against him in the case that led to his execution

recounted or retracted their evidences A petition with nearly one million signatures was put

forth to reconsider his case it was rejected On the same day a 17 year old boy was publicly

hanged in Iran for killing a popular athlete his justification based on self-defense was ignored

Also on the same day a Pakistani national was executed in China on grounds of drug trafficking

an offence that does not often result in capital punishment The need for the resolution of this

issue is pressing and the committee needs to deal with all aspects of the problem in a

comprehensive and enduring manner104

Capital Punishment

In 2010 23 countries implemented capital punishment A total of 527 executions (plus the 1000+

carried out in China alone) were known to have taken place with Iran Yemen USA and North

Korea meting out a significant number of sentences105

The figure is lower than the records

computed for years past There are more states which are now abolitionist either in law or in

practice with regard to the imposition of the punishment Gabon was officially the last country

to rescind the practice while bills calling for an end to capital punishment have been presented

to parliaments in Lebanon Mali Mongolia and South Korea106

Renewed efforts are

104

httpwwwamnestyorgennews-and-updatesus-executes-death-row-prisoner-troy-davis-2011-09-21 105

httpwwwguardiancouknewsdatablog2011mar29death-penalty-countries-world 106

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010

UNHRC 29 of 44

simultaneously being made on the international front to implement laws against capital

punishment A third resolution establishing a moratorium on the use of death penalty passed the

UN General Assembly on December 21 2010107

Despite the increasing momentum towards an eventual elimination of the practice the number of

executions taking place annually is a cause of major concern Advocates of the death penalty

assert that the practice is an effective means of deterring crime in society Public executions are

often held in Iran Afghanistan and Palestine for example to demonstrate the fate awaiting

those who commit similar crimes108

Arguments are made on the grounds of justice that it is

proper and fair to take an eye for an eye and a life for a life and that some individuals deserve

it for the crimes they commit

Those opposing the practice question the morality of an action sanctioned by the state which

endorses deprivation of the right to life a fundamental human right under the Universal

Declaration of Human Rights109

There are inescapable flaws within legal systems which are

aggravated by discrimination prosecutorial misconduct and inadequate legal representation

Moreover the risk of executing the innocent can never be eliminated110

An alternative is

presented in the form of imprisonment for life without parole which results in a parallel debate

is imprisonment for life a viable surrogate to the practice of death penalty A thread from this

debate also relates to the economic feasibility of carrying out a death sentence as opposed to the

feasibility of imprisonment for life

Deterrence

Capital punishment is often propagated as an adequate approach in the deterrence and prevention

of crime The logic is that if murderers are sentenced to death potential murderers will think

twice before killing for fear of losing their own life The deterrence theory presumes that the

once the punishment for a certain crime is established the criminal by committing the crime

voluntarily assumes the risk of receiving the prescribed punishment for the crime Only when the

most severe punishment has been set will there be a possibility of an individual evaluating their

actions in light of the consequences111

107

httpwwwundemocracycomA-RES-62-149pdf 108

httpwwwamnestyorgennews-and-updatessharp-rise-public-executions-iran-executes-first-juvenile-

offenders-2011-2011-04-27 109

wwwunorgendocumentsudhr 110

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 111

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 30 of 44

The death penalty it is asserted ensures that convicted criminals do not offend again moreover

it is deemed to be a just penalty for atrocious crimes It is further alleged that many criminals

who are set free even after lengthy sentences regress and go on to commit heinous crimes

Therefore there should never be the possibility of a release clause112

The deterrence theory is modeled on the grounds of human psychology logic and rationale As a

professor of jurisprudence Ernest van den Haag PhD wrote ―Common sense lately bolstered

by statistics tells us that the death penalty will deter murder if anything can People fear nothing

more than death Therefore nothing will deter a criminal more than the fear of death These

statements were further validated by a US Supreme Court Justice who said on record that

Prima facie the penalty of death is likely to have a stronger effect as a deterrent to normal

human beings than any other form of punishmentlsquo113

Numerous studies have been conducted on

the subject with varying results One of the most established studies was conducted in USA

using a panel data set of over 3000 counties from 1977 to 1996 which concluded that on

average one death sentence resulted in 18 fewer murders114

Delegates will be expected to be

familiar with other similar studies

These studies are commonly refuted as not crediblelsquo by opponents of the capital punishment

who also deny the correlation between crime and death penalty as a fabricated relationship which

cannot be empirically established115116

A study of the relationship between capital punishment

and the incidence of murder was conducted for the UN in 1988 and updated in 2002 The

conclusion was ―The investigation has not provided scientific proof that executions have more

deterrent effect than life imprisonment It is unlikely that such evidence will ever come

Deterrence hypothesis finds no support in the survey117

Another counter-argument asserts that crime is still a persistent feature of the societies that

continue to award the death penalty while many of the abolitionist states enjoy low crime rates

This can be evidenced by comparing the crime rate in USA or Pakistan with that of Canada or

some European state In Canada for example the homicide rate per 100000 fell from a peak of

309 in 1975 the year before the abolition of the death penalty for murder to 241 in 1980 and

in 2003 27 years after abolition the homicide rate was 173 per 100000 44 per cent lower than

in 1975118

112

httpwwwdeathpenaltyinfoorgfacts-about-deterrence-and-death-penalty 113

httpdeathpenaltyproconorgviewresourcephpresourceID=002000 114

httpdeathpenaltyproconorgsourcefilesThe20Deterrent20Effect20of20Capital20Punishmentpdf ndash

Delegates should carefully examine certain parts of this document to establish the credibility of the assertions made

They should also invest in trying to locate studies that refute the assertions made in this and similar studies 115

httpwwwdeathpenaltyinfoorglaw-enforcement-views-deterrencelawenforcement 116

httpwwwdeathpenaltyinfoorgDonohueDeterpdf 117

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 118

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml

UNHRC 31 of 44

The lack of evidence on the production of a unique deterrent effect points to the danger of

relying on the deterrence hypothesis as a basis for public policy on the death penalty

Retribution amp Morality

An important terminology that delegates need to familiarize themselves with is that of

―retributivism119

It is defined as ―a policy of criminal justice that sponsors the punishment of

criminals in retribution for the harm they have inflicted120

Criminals deserve to be punished in

proportion to the gravity of their crime regardless of whether the victim or anyone else desires

it we may all deeply regret having to carry out the punishment but consider it warrantedlsquo is

what many say in defense of the theory121

The need for the establishment of a visibly just state arises from the potential risks of not having

one As has been visible in many developing countries with shaky legal systems when criminals

are not adequately punished for their unlawful behavior the public takes the law into its own

hands and deals out vigilante justice It is asserted that retributivism is essential for a functioning

society where individuals respect the supremacy of law

The concept of retribution in society is also grounded in religious beliefs The concept of an eye

for an eye has been a part of all three Abrahamic traditions However in the modern world it is

Islamic nations that still retain the practice based on these grounds Similar traditions can be

found in Hinduism Christianity and Buddhism as well as other religions in different parts of the

world In many non-secular countries the constitutions and state laws are derived from religious

doctrines

Opponents dismiss this aspect of the argument as being emotionally charged with little rational

logic to support the contention They claim that the establishment of capital punishment gives

birth to a culture of violence endorsed by the state It perpetuates the cycle of aggression and

brutality something which the state should be actively inhibiting not endorsing

Wrongful Convictions

The death penalty carries with it the danger of wrongfully convicting an innocent person for

crimes he did not commit There is the potential for capital punishment to evolve into sheer

miscarriage of justice as in certain circumstances states are often seen to rush the trials and

convict the accused hastily This practice takes foremost apparently in military courts often in

119

Cavadino M amp Dignan J (1997) The Penal System An Introduction (2nd ed) p 39 London Sage 120

httpdictionaryreferencecombrowseretributivism 121

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 32 of 44

the developing or lesser-developed countries where the system of law is not properly established

It is not however exclusive to these countries Examples can be drawn from countries like

Philippines Thailand Iran and Palestine to name just a few where executions are carried out at

alarming pace removing the possibility of reviews

On 15 August 2004 Atefah Rajabi Sahaaleh was hanged in a public square in the Iranian city of

Neka Her death sentence was imposed for adultery and crimes against chastity122123

Atefah

was executed a week after the trial was run Following the execution the Judge for the case was

arrested for investigation by the Intelligence Ministry The media reported that in addition to the

confession of his rape of Atefeh Judge Rezai who served as judge jury and executioner also

confessed to torturing her during interrogations to extract names of others she had relations with

No transcripts from court proceedings were recorded The State alleged that Atefah was 22 at the

time of her execution A witness later claimed The judge just looked at her body because of

the developed physique and declared her as 22124

ndash her birth certificate revealed she was born

in 1988 Furthermore Atefah did not have access to a proper defense where she could contest

charges leveled against her This is one example of many such cases of miscarriage of justice

Something that recurs in these cases is the failure of the police or prosecuting authorities to

prevent the use of unreliable witnesses the misuse of evidence or confessions and the provision

of inadequate defense representation The advent of DNA profiling and the use of it as positive

evidence in criminal cases has resulted in the exoneration of multiple death row inmates on

grounds of forensic evidence or lack thereof Since 1973 138 people have been released from

death row in the United States after it was proven that they were innocent125

In 2009 Paul

House was cleared of murder and exonerated in Tennessee USA after having served 22 years

on death row His innocence was proclaimed in light of substantial additional DNA testing and

further investigationlsquo 126

Amnesty International has noted examples of wrongful convictions from elsewhere as well

including Jamaica Japan China Nigeria and Tanzania127

Paul G Cassell a former law clerk to

the Chief Justice of USA stated the mistaken release of guilty murderers should be of far greater

concern than the speculative and heretofore nonexistent risk of the mistaken execution of an

innocent personlsquo highlighting the case made by those who advocate the death penalty even in

light of wrongful convictions128

122

httpwwwcosmolearningcomdocumentariesexecution-of-a-teenage-girl1 123

httpnewsbbccouk2hi5217424stm 124

httpnewsbbccouk2hi5217424stm 125

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 126

httparticlescnncom2009-05-13justicetennesseeexonerated_1_death-row-inmate-dna-evidence-house-

arrest_s=PMCRIME 127

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 128

httpdeathpenaltycurriculumorgstudentcaboutargumentstestimony3bhtm

UNHRC 33 of 44

Alternative to Death Penalty

All abolitionist states have reverted to the practice of sentencing criminals to life imprisonment

(some without parole) which is also termed as death by incarceration Widely regarded as a more

humane course of action life imprisonment is also alleged to be a more economical practice

While ensuring public safety by keeping criminals away from society this system also saves the

lives of innocent people who have been falsely or wrongfully convicted The setup inhibits and

curbs the cycle of violence while retaining the deterrence factor it is strongly asserted

Advocates for the death penalty are averse towards life imprisonment for a number of reasons

They cite the unreliability of the system as one of the flaws which impedes the possibility of

such a sentence being successful A certain James Moore serves as a valid example in this case

In 1962 James Moore raped and strangled 14-year-old Pamela Moss The victimlsquos parents opted

out of capital punishment for Moore and he was instead sentenced to life in prison without

parole Twenty years later a change in sentencing laws in 1982 renders James Moore eligible for

parole every two years129130

Kenneth McDuff is another example McDuff was convicted and sentenced to life imprisonment

Years later due to the issue of overcrowding in prisons McDuff was released following which

he killed eight more people McDufflsquos example is of an individual from a developed country

with an established legal system in place131

Overcrowding is a feature of prisons in developing

or lesser developed countries In many such states criminals have also been known to easily

break out from penitentiaries

The economic aspect of the debate is murky at best There is a lack of empirical data on the

subject which is why the arguments of both these sides cannot be settled beyond doubt

Advocates of capital punishment insist that the overall costs of the practice are far lesser than the

costs of housing an inmate for a lifetime132

They also suggest that the life imprisonment allows

criminals to conceive new habeas corpus petitions which on legal grounds cannot be rejected

automatically resulting in more trials

On the other hand substantial arguments are made which stress that the cost of legal proceedings

in capital cases is in truth more than that of other cases States and nations spend a significant

portion of the taxpayerlsquos money in meting out such punishments133

Delegates when addressing

this portion of the debate will need to be aware of the financial aspects of the issue as it forms

for many states an important part of whether capital punishment should be revoked or

not

129

httpwesleylowecomcphtmldeter 130

httpwwwnytimescomkeywordparole 131

httpwesleylowecomcphtmldeter 132

Ibid ndash view section titled Capital Punishment and its costslsquo 133

httpwwwamnestyusaorgour-workissuesdeath-penaltyus-death-penalty-factsdeath-penalty-cost

UNHRC 34 of 44

Imposition of Death Penalty on Juveniles

The prohibition on the death penalty for crimes committed by juvenile offendersmdashpersons under

age 18 at the time of the offensemdashis well established in international law specifically in the

Convention on the Rights of Child

ldquoNo child shall be subjected to torture or other cruel inhuman or degrading treatment or

punishment Neither capital punishment nor life imprisonment without possibility of release shall

be imposed for offences committed by persons below eighteen years of agerdquo134

- Article 37(a) Convention on the Rights of Child

ldquoSentence of death shall not be imposed for crimes committed by persons below eighteen years

of age and shall not be carried out on pregnant womenrdquo135

- Article 6(5) International Covenant on Civil and Political Rights

The treaties are a unanimously agreed set of non-negotiable standards and obligations By

acceding to the treaties and ratifying them governments commit to protecting and ensuring

childrens rights and to holding themselves accountable for this commitment before the

international community

Even though the practice of capital punishment on juveniles is relatively rare however in clear

contravention of international law nine countries have executed offenders who were juveniles at

the time of their crimes between 1990 and 2005136

These countries include the Peoples Republic

of China (PRC) the Democratic Republic of the Congo Iran Nigeria Pakistan Saudi Arabia

Sudan the United States and Yemen137

The USA has since moved to implement a ban on capital

punishment for juveniles However in most other countries of the preceding list the practice is

still enshrined in the judicial system Iranlsquos record in particular has been abominable over the last

decade It has carried out 39 executions of persons under the age of 18 since 2005 Presently

over a hundred individuals are placed on death row for crimes committed as juveniles The

executions of Mahmoud Asgari Ayaz Marhoni and Makwan Moloudzadeh became international

symbols of Irans child capital punishment and the judicial system that hands down such

134

httpwww2ohchrorgenglishlawcrchtm 135

httpwww2ohchrorgenglishlawccprhtm 136

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf - This document by the Human Rights Watch

called The Last Holdoutslsquo is a good summary of juvenile executions and should be reviewed 137

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 - Contains a list with

statistics and details of countries which have allowed the imposition of death sentence to juveniles

UNHRC 35 of 44

sentences138139140

Saudi Arabia and China too have questionable records that need to be

scrutinized further

While regional treaties and charters usually substantiate international law the Arab Human

Rights Charter of 2004 is unique among regional and international treaties in that the ban on the

juvenile death penalty in it is not absolute but merely optional141

Furthermore national laws in states that observe such a practice are in violation of

international legally-binding charters In Iran and Saudi Arabia laws usually treat a child the

same way as an adult criminal offender would be treated Article 10(3) of the International

Covenant on Civil and Political Rights emphasizes the need for demarcation between the

handling of children and that of adults in stating ―Juvenile offenders shall be segregated from

adults and be accorded treatment appropriate to their age and legal status142

The definition of a child in these Muslim states is unclear as adulthood is associated with

attainment of puberty which is a relative concept The Committee on the Rights of the Child in

January 2005 censured the Saudi government for its practice of imposing the death penalty on

juveniles terming it a serious violation of the fundamental rights The committee was deeply

alarmed over the discretionary power judges hold to treat juveniles as adults as was stated in

the committeelsquos report Iran too was strongly condemned following the release of an

international report highlighting the dire situation in Iran by the International for Human Rights 143

138

httpwwwfoxnewscomstory0293329798200html 139

httpnewsbbccouk2himiddle_east7130380stm 140

httpenwikipediaorgwikiCapital_punishmentIran 141

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 142

httpwww2ohchrorgenglishlawccprhtm 143

httpwwwfidhorgIMGpdfRapport_Iran_finalpdf

UNHRC 36 of 44

On August 19 2008 Iranian authorities executed Seyyed Reza Hejazi at Isfahan Central Prison

for his role in a murder committed in 2003 when he was 15 Hejazi was tried as an adult by

Branch 106 of the Isfahan General Court even if he did not qualify as one under international

stipulations and sentenced to death on November 14 2005144

In Saudi Arabia Mu`id bin

Husayn bin Abu al-Qasim bin `Ali Hakami was executed on July 10 2007 for a murder he

allegedly committed three years earlier when he was 13 years old145

The judges in these states

because of the implementation of the Sharialsquo law have a large amount of discretion with regard

to their rulings This discretion is often abused in the interrogation and judicial proceedings In

Pakistan authorities hanged Mutaber Khan in Peshawar Central Prison on June 13 2006 on

charges of murder of five people The fact that he was held in the juvenile wing of Peshawar

Central prison and the evidence presented by the accused confirming that his age was below 18

at the time of the killings were not taken into account during the trials and Mutaber was charged

as an adult in the case146

While the above does not cover exhaustively the practice of capitally punishing juveniles the

committee is expected to be well read on the matter The committee will be required to devise

ways to strictly apply the existing international law on the subject to curtail further deaths of

juveniles by states A series of recommendations on better implementation of international

covenants will be expected from the committee Delegates at UNHRC will also have to

familiarize themselves with the stipulations in the national laws of countries practicing juvenile

death penalties (Iran Saudi Arabia Pakistan Nigeria Sudan Yemen and UAE among others) to

discuss how these states are constitutionally able to bend international law and mete out the

illegal punishments

144

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 145

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 146

See FIDH and Human Rights Commission of Pakistan ―Slow march to the gallows and ―Condemned Prisoner

Executed Dawn Newspaper Karachi June 14 2005 httpwwwdawncom20060614nat16htm

UNHRC 37 of 44

Universality of Laws Incurring the Death Penalty

In countries which have not abolished the death penalty capital punishment may be imposed

only for the most serious crimes it being understood that their scope should not go beyond

intentional crimes with lethal or other extremely grave consequences

- Safeguards guaranteeing protection of the rights of those facing the death penalty147

Laws incurring the death penalty or capital crimes have certain uniformity the world over This

is of course barring states that are religiously affiliated and whose law systems are not secular

in nature The list of capital crimes for those states with non-secular legal systems is slightly

different The Human Rights Commission had decided that the imposition in the State party of

the death penalty for offences which cannot be characterized as the most serious including

apostasy committing a third homosexual act illicit sex embezzlement by officials and theft by

force are incompatible with Article 6 of the Covenant Economic offences including

embezzlement drug related offences political offences and robbery were also referred to148

The reason why looking into capital crimes and trying to garner a global impression of them is

important is that the death penalty can only realistically be abolished in a piecemeal way This

process will entail shortening the list of capital crimes The UN formally notes that ―in order

fully to guarantee the right to life provided for in article 3 of the Universal Declaration of

Human Rights the main objective to be pursued is that of progressively restricting the number of

offences for which capital punishment may be imposed with a view to the desirability of

abolishing this punishment in all countries149

The first established death penalty laws date as far back as the Eighteenth Century BC in the

Code of King Hammaurabi of Babylon which codified the death penalty for 25 different crimes

By the 1700s 222 crimes were punishable by death in Britain including stealing cutting down a

tree and robbing a rabbit warren In the 19th

century the death penalty was eliminated for over

100 of the 222 crimes punishable by death 150

In modern times the UN Special Rapporteur on

extrajudicial summary or arbitrary executions has stated that the death penalty should be

eliminated for economic crimes and drug-related offences and that the restrictions to its use

―exclude the possibility of death sentences for so-called victimless offences ndash including acts of

treason espionage and other vaguely defined acts usually described as crimes against the Statelsquo

or disloyaltylsquo and ―actions primarily related to prevailing moral values such as adultery and

prostitution as well as matters of sexual orientation151

147

httpwww2ohchrorgenglishlawpdfprotectionpdf 148

httpwwwunhchrchtbsdocnsf0bc310a747155dff88025655300537faeOpendocument 149

General Assembly resolution 2857 httpwwwunodcorgpdfcompendiumcompendium_2006_part_01_05pdf 150

httpdeathpenaltycurriculumorgstudentcabouthistoryhistoryPDF 151

httpswwwabofimedia24259report10pdf

UNHRC 38 of 44

Contrary to the made recommendations even political dissent warrants a death sentence in

several countries most notably in China and Iran In 2010 nearly 20 Kurdish people were

executed for political offences in Iran The country is known for keeping dissent especially from

the Kurds suppressed Most are executed on the grounds of moharebeh or enmity against God

Moreover challenging the power of the Ayatollah is also punishable by death These charges are

neither explicit nor in line with international guidelines over what crimes are punishable

capitally In Iran judges must handle such cases carefully as Iranian law provides for only one

punishment if an individual is found to be guilty of treason Libya too thwarts political dissent

with firm laws in place for punishing by death those who illegally form groups organizations or

associations against the state152

Saudi Arabia too is worth note for its vaguely phrased laws governing capital punishment

Intentional murder and crimes that spread ―mischief in the land (Fasad fil-ardh) merit death In

2010 the government announced that it had executed 26 people all by beheading Crimes that

―spread mischief include witchcraft and sorcery153

How is one convicted of witchcraft in the

21st century What can the international community do when regarding countries such as these

Treason arguably along with murder is the capital crime that has yet to be phased out by many

countries In some such as Brazil treason during warfare is the only crime for which a person

can be sentenced to death In the Gaza Strip under Hamas any sort of cooperation with Israeli

forces during military actions is also punishable by death In others including Algeria Bahrain

Iran and Malaysia treason is punishable by death in all circumstances The United States too has

federal laws governing treason under which traitors ―shall suffer death154

Child sex abuse is another crime that is widely held to merit the death penalty In Russia for

example according to the Russian Public Opinion Research Center an overwhelming majority

consider the death penalty to be an acceptable punishment especially in relation to molestation

155 In 2009 however Russias Constitutional Court effectively abolished the death penalty by

extending indefinitely a 13-year-old moratorium on capital punishment156

Indonesia has some of the strictest penalties for drug related crimes in the world Roughly half of

those on death row are incriminated with drug-related charges157

In 2008 though the most high

profile executions were of terrorists Three of those found responsible for the 2002 Bali

bombings were executed by shooting158

Generally speaking however a significant proportion of

152

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 153

httpwwwstategovgdrlrlshrrpt2010nea154472htm 154

httpdeathpenaltyproconorgviewresourcephpresourceID=1172 155

httpenrianrutrenddeath_penalty 156

httpwwwreuterscomarticle20091119idUSLJ330478 157

httpwwwnytimescom20080711worldasia11iht-indo114421132html 158

httpnewsbbccouk2hiasia-pacific7718246stm

UNHRC 39 of 44

the executions or death sentences recorded (in 2010) in China Egypt Indonesia Iran Laos

Libya Thailand United Arab Emirates and Yemen were for drug-related offences In December

2010 the amended Anti-Narcotics law came into force in Iran extending the scope of the death

penalty to include additional categories of illegal drugs (for example crystal meth) possession

of which became punishable by death Also around the same time the National Assembly of

Gambia voted to extend the scope of the death penalty by making the possession of more than

250g of heroin or cocaine an offence punishable by death159

Several states allow for the death penalty for crimes of blasphemy and other crimes for

nonviolent expression and association In Pakistan Aasia Bibi a Christian mother of five was

charged with blasphemy and sentenced to death after a trial largely believed to be unfair on 8

November 2010 She is currently on death row The country is also noted for its laws concerning

capital crimes The list includes 27 crimes most of which go beyond the notion of ―most serious

crimes as recommended by the International Covenant on Civil and Political Rights Extra-

marital sex and blasphemy are examples of some capital crimes in the country In December

2007 Pakistan voted against a United Nation General Assembly resolution for a moratorium on

the death penalty The year before however the nation amended its law on rape and adultery

charges which are no longer punishable by death160

As far back as 1989 recommendations have been made as to how to abolish the death penalty

Member states (of the UN) have been urged ―to publish for each category of offence for which

the death penalty is authorized and if possible on an annual basis information about the use of

the death penalty including the number of persons sentenced to death the number of executions

actually carried out the number of persons under sentence of death the number of death

sentences reversed or commuted on appeal and the number of instances in which clemency has

been granted and to include information on the extent to which the safeguards referred to above

are incorporated in national law161

The committee must inspect how far this recommendation

has been adopted and should seek to rectify the weaknesses in the system of gradually

abolishing the death penalty Can a target year be designated by which crimes meriting the death

penalty could be made universal How can countries with non-secular legal systems be brought

into the fold of international law

159

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 160

httpwwwfiacatorgenIMGpdfdppakistan-enpdf 161

httpgraduateinstitutechfacultyclaphamhrdocdocsecosocresolutiondeathpen1989html

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 11: UNHRCFINAL

UNHRC 7 of 44

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in

198011

which prohibits coercion in family planning policies12

China continues to dictate the

reproductive lives of all its citizens While the Law on Population and Family Planning states

that one child is mostly merely encouraged abusive or coercive enforcement measures such as

forced abortions compulsory sterilizations and the forced insertion of intra-uterine devices after

abortions or births are common practices that are regularly documented13

Forced sterilizations are a troublingly common practice in other regions as well Perulsquos case is

important in this regard with its program of achieving a target number of sterilizations each

year sometimes numbering in the hundreds of thousands Indeed the government would

sometimes bribe women to undergo these procedures in exchange for food and medicine for

their existing children 14

A system of enhanced monitoring strategies is often regarded as one of

the solutions to the problem

Another pervasive measure employed by the state is the routine monitoring of the menstrual

cycle of women particularly those in the child-bearing age by family planning officials15

Their

employment is often contingent upon compliance with the policy The right to privacy is

severely breached in all such instances Furthermore unmarried women are not allowed to have

children and even married couples must apply for a birth permit before they can legally bear

children16

Analyzing the statelsquos penetrating involvement and interference in the private spheres

of individuals in light of existing treaties and conventions will be one of the committeelsquos tasks

Women and couples who defy the policy face fines amounting to several yearslsquo salary have their

access to social services cut and are even imprisoned in certain cases Their so-called black

childrenlsquo have no legal status in China meaning these children are not granted any rights

whatsoever and do not have access to education health or any other services provided by the

State There are an estimated 6 million undocumented children in China most of which are

believed to be girls17

The cases of Mao Hengfeng and Chen Guangchengserve as prime examples demonstrating the

inhumane nature of penalties handed out by the Chinese state to violators of the one-child

policy18

Mao a human rights activist was sentenced to two and a half years in prison after she

refused to have an abortion Chen was a blind self-taught lawyer and activist who was charged

and punished with more than four years in prison after exposing abuses in the implementation of

the one-child policy

11

httpunifem-eseasiaorgChina 12

httptreatiesunorgPagesViewDetailsaspxsrc=TREATYampmtdsg_no=IV-8ampchapter=4amplang=en 13

httpwwwrhrealitycheckorgnode7926 14

httpwwwwebsteredu~woolflmforcedsterilizationhtml 15

Page 2 httpwwwcensusgovpopulationinternationalfilesspSP73pdf 16

httpfactsanddetailscomchinaphpitemid=128ampcatid=4ampsubcatid=15 17

Ibid 18

httpwwwrhrealitycheckorgnode7926

UNHRC 8 of 44

The appalling state of affairs is further augmented by the actions the Chinese state takes to

impede the birth of conceived children It implements very strictly a program of compulsory

sterilization and forced abortions to minimize the birth of a second child in a family While

abortion itself may be a debatable and controversial topic the subset of such a controversy in the

form of a state-regulated forced abortion is excruciatingly black and white The undeniable

cruelty of forced abortions is not a deterrent strong enough for the Chinese government and the

phenomenon exists widely in China In fact the policy leads to an estimated 13 million abortions

every year with many of those ordered by local authorities Infanticide is a common practice

especially in the rural areas of the country19

Women are abducted by the state and at the cost of

their lives are forced to undergo forced and mostly unsafe abortions

In October of 2010 China forced an eight-month pregnant woman into an abortion for breaching

the one-child policy20

Government officials entered Xiao Aiyinglsquos residence hit and kicked her

in the stomach and subsequently dragged her to the hospital where doctors injected her with a

lethal drug to kill her unborn baby Xiaolsquos husband later described the incident They held her

hands behind her back and pushed her head against the wall and kicked her in the stomachlsquo The

animalistic discourse adopted by the government officials is a testimony to Chinalsquos open rebuke

for human rights More recently Womenlsquos Rights without Frontierslsquo and China Aidlsquo reported

the death of a six-month pregnant woman during a forced abortion on October 12th

201121

Jihong Ma was seized by Family Planning Officials for a forced abortion having violated the

one-child policy

While the positive environmental impact of the prevention of 300 to 400 million births may be

cited22

it must be noted the one-child policy privileges only the wealthy who can afford the

fines for additional births and have better access to contraceptives and health care while

punishing the poor who are financially crippled by the fines incurred for additional births

Moreover this policy punishes the children of the poor because they are more likely to be kept

hidden from the state and thus will not have access to health care and the education they need to

climb out of poverty In this way social disparity is further perpetuated within the existing

framework

Another adverse byproduct of Chinas 30-year-old family planning policy is the gender

imbalance that is now manifested most clearly among those of marrying age The British

Medical Journal claimed that in 2005 there were 32 million more males than females (under the

age of 20) in China23

Even though China banned prenatal sex screening in 199424

illegal

ultrasound tests allow prospective parents to choose the gender they prefer for their only child

19

httpwwwdailymailcouknewsarticle-1322601China-forces-woman-abortion-EIGHT-months-breaching-

child-policyhtml 20

Ibid 21

httpwwwwomensrightswithoutfrontiersorgblogp=429 22

―Has Chinas one-child policy worked httpnewsbbccouk2hiasia-pacific7000931stm 23

British Medical Journal BMJ 2009 338b1211 httpwwwbmjcomcontent338bmjb1211full 24

―A Brief History of Chinas One-Child Policy httpwwwtimecomtimeworldarticle08599191286100html

UNHRC 9 of 44

creating a massive imbalance This imbalance will lead to drastic results in the next few years an

implication the committee needs to take in account when establishing a framework for

responding to the issue

The Human Rights Council conducted a Universal Periodic Review of China in 200925

to much

international consternation and surprise the report lacked substantial evidence implicating

China and was instead found to be extremely vague The role of the United Nations in defining

and drawing attention to the issue is of key significance and the Human Rights Council must

make recommendations on how the United Nations can enhance its capacity in laying the

foundations for the case The Council can also make recommendations regarding the changes

that can be brought about in the conduct of the Review and otherwise in order to be able to

contain the issue with lesser difficulty

The committee will be called upon to review reproductive rights in detail including the implicit

and explicit consequences on the people of China Access to reproductive healthcare is a

problem the world over and is often consciously violated by states Is there a way to control

these violations perhaps through devising enhanced monitoring strategies

The Case of Internet Censorship in China and the Right to Free Speech

Everyone has the right to freedom of opinion and expression this right includes freedom to hold

opinions without interference and to seek receive and impart information and ideas through any

media and regardless of frontiers26

- Article 19 Universal Declaration of Human Rights

Everyone shall have the right to freedom of expression this right shall include freedom to seek

receive and impart information and ideas of all kinds regardless of frontiers either orally in

writing or in print in the form of art or through any other media of his choice 27

- Article 19 (2) International Covenant on Civil and

Political Rights

The Peoplelsquos Republic of China along with being the most populous region of the world is also

home to the worldlsquos largest collection of internet users According to Xinhua Chinalsquos state-run

English news agency Chinalsquos internet user ship exceeded 500 million users as of September

201128

China is also the worldlsquos largest media market However despite these impressive

statistics it is both interesting and disturbing to note that the Republic is also remarkable for its

25

httplibohchrorgHRBodiesUPRDocumentsSession4CNA_HRC_WG6_4_CHN_3_Epdf 26

httpwwwohchrorgENUDHRDocumentsUDHR_Translationsengpdf The Universal Declaration of Human

Rights 27

httpwww2ohchrorgenglishlawpdfccprpdf The International Covenant on Civil and Political Rights 28

httpnewsxinhuanetcomenglish2010china2011-0929c_131167919htm

UNHRC 10 of 44

censorship history About a dozen government bodies control internet usage including the

Ministry of Public Security29

It has been noted that while the Chinese advertising industry is

booming this freedom does not extend to editorial content of newspapers30

This phenomenon of

Chinese censorship has been labeled in the mainstream global media as the Great Firewall of

China The Firewall serves to filter both the information coming into China as well as

information generated within the nation It is beyond being a clever pun a matter of concern for

the committee because of its repressive characteristic The State imposes such extreme

restrictions of freedom of information under the premise of protection of its nationalistic

interests However its negative connotation is much obvious and its resemblance to Orwelllsquos

Ministry of Truth and the notion of thought control is uncanny The Peoplelsquos Republic has signed

(not ratified) the International Covenant on Civil and Political Rights The committee can look

into the reasons behind this as well as assess current global membership to the covenant

Chinalsquos Internet censorship is centered on the control of political thought The Measures on the

Administration of Internet Information Services and the Provisions on the Administration of

Internet News and Information Services are the two main instruments used to do so31

Section 19

of the latter deserves special attention and casts its scope to prohibit activities that disrupt

―national policies on religion propagating evil cults and feudal superstitions jeopardize ―the

security of the nation harm ―integrity of the nationlsquos unity or ―the honor or the interests of the

nation among other things32

Regulations are so stringent that in 2008 only eight websites out

of a total of 430000 in Guangdong Province ndash Chinalsquos most populous region -- were able to

obtain news publication qualifications permits33

The Internet news and information services entities engaging in Internet news and information

services shall abide by the Constitution laws and regulations by persisting in providing service

for the people and serving socialism and guiding public opinion to protect the interests of the

nation and the public

- Article 3 Provisions on the Administration of Internet News and Information Services

The national report submitted by China to the Working Group for the Universal Periodic Review

in 2009 exhibited the governmentlsquos opinion that ―with such easy fast and diverse ways of

gaining access to information and expressing opinion including criticism of the Government

Chinese citizens are enjoying an entirely new lifestyle34

According to a white paper published

29

httpwwwhrworgreports2006china08063htm_ftnref28 30

httpnewsbbccouk2hiafricacountry_profiles1287798stm 31

httpwwwhrichinaorgcrfarticle3244 32

httpwwwchinaitlaworgp1=printampp2=051006175116 Provisions on the Administration of Internet News and

Information Services

Please peruse the following httpwwwhrworgreports2006china08063htm for commentary on the Provisions 33

Ibid 34

httplibohchrorgHRBodiesUPRDocumentsSession4CNA_HRC_WG6_4_CHN_1_Epdf

UNHRC 11 of 44

in 2008 by the Information Office of the State Council the internet is a ―crystallization of human

wisdom and ―Chinese citizens fully enjoy freedom of speech on the internet 35

Chinalsquos policies have relevance beyond

their contravention of what may seem to be

abstract principles China has jailed the

largest number of internet dissidents the

world over The case of Liu Shaokun for

example is a notable one He was a

teacher in Sichuan province which had

been hit in 2008 by a ravaging earthquake

around the time of the Summer Olympics

in Beijing China had been praised for

allowing reporters to openly cover the

earthquake Much of this openness however was part of a bid to soothe the international

community and project Beijinglsquos image as being the perfect venue for the Olympics Shaokun

however was sentenced to a year of labor for posting photographs of schools affected by the

earthquake He is among countless others who have been silenced36

When the Arab Spring flowered over the Middle East China cracked down on many social

networking sites to curb pro-democracy sentiments Amongst these was LinkedIn blocked over

the fact that one of its users had mentioned the possibility of a ―Jasmine Revolution in China37

The government blocks discussions about the Dalai Lama the Tiananmen Square protests and

the Falun Gong spiritual movement among other things In April of 2007 the Chinese version of

MySpace launched but lacked discussion forums centered on the aforementioned topics among

others including Taiwanlsquos independence In 2010 Google considered withdrawing its services

from China after a spur of cyber-attacks on email accounts of human rights activists 38

Google

and the government reached a deal whereby Google operated by Chinese guidelines within

mainland China However Google has a non-censored operation running in Hong Kong to

which it started routing customers in 2010 when it had concerns over Google accounts being

hacked by authorities It is testament to Chinese control that companies such as Google are

forced to enter the internet market on its terms Other instances of well renowned internet

websites being blocked or affronted include Twitter being banned during the 20th

anniversary of

the Tiananmen killings

The Committee to Protect Journalists ranks China as one of the worst internet censors The

Chinese government has been alleged of carrying out ―spear-phishing whereby spying software

disguised as legitimate emails is installed on computers that belong invariably to journalists

35

httpchinaorgcngovernmentwhitepapernode_7093508htm 36

httpcpjorgreports201012cpj-journalist-prison-census-iran-china-highest-14-yearsphp 37

httpwwwbbccouknewstechnology-12586462 38

httpnewsbbccouk2hi8460129stm Please look at this link for a timeline of Chinalsquos internet history

UNHRC 12 of 44

Victims included those writing about Liu Xiaobo the imprisoned human rights defender who

received the Nobel Peace Prize in 201039

According to statistics over 80 of Chinas netizens rely mainly on the Internet for news 40

With this state of affairs and increasing dependence the world over on the internet as a major

source of information discussing information monopolies is crucial To isolate a country of over

a billion and deny it access to information in the age of technology may not seem a palpable

physical or otherwise contravention of human rights however its consequences are

tremendous While one may think that media censorship is restricted to dictatorial regimes the

case of China serves to refute that line of thought Media censorship is prevalent even in

countries as varied as Indonesia India Mexico and Russia ndash all of whom rank relatively low on

the Press Freedom Index41

Looking at instances worldwide and the justifications given for

restricting rights will be a useful direction to take while researching

The following website is a useful tool to check the status of websites in China

httpwwwgreatfirewallofchinaorg

Political Prisoners in China and Illegal Detention

Political prisoners are those whose imprisonment is carried out arbitrarily on contestable and

controversial grounds Governments detain certain individuals on the basis of allegedly valid

grounds which are not always disclosed or declared Many detainees charge existence of ulterior

motives or extrajudicial reasons on part of the state for their detention The phenomenon of

political prisoners is often associated with closed regimes such as Burma and the DPRK

However the Peoplelsquos Republic of China too does not escape scrutiny when the topic of political

prisoners is at hand The phenomenon of political prisoners resonates so loudly in the

international spheres particularly because governments deny the existence of political prisoners

they claim that all detainees are lawfully held under criminal law The unfair detainment of

persons or the capture of people to serve the interests of a government contravenes many human

rights including freedom of expression association and assembly Indeed a countrylsquos political

imprisonment record is one of the crucial indicators of its human rights situation

Amnesty International views political prisoners as prisoners of conscience These are more

specifically ―people who have been jailed because of their political religious or other

conscientiously-held beliefs ethnic origin sex color language national or social origin

economic status birth sexual orientation or other status42

39

httpwwwcpjorgreports201105the-10-tools-of-online-oppressorsphp 40

httpchinaorgcngovernmentwhitepapernode_7093508htm 41

httpenrsforgpress-freedom-index-20101034html 42

httpwwwamnestyusaorgour-workissuesprisoners-and-people-at-riskprisoners-of-conscience

UNHRC 13 of 44

According to the (US) Congressional Executive Commission on China over 5000 cases of

politically or religiously motivated imprisonments have been made It has detailed documented

information on the status of 1452 of these prisoners and

notes that its information is far from complete and that the

true story of Chinalsquos political prisoners remains unknown 43

The plight of political prisoners in China is speculated upon

by various international organizations Among these is the

Human Rights Watch which has gone as far as labeling the

locations for holding political prisoners ―black jails and

―alleyways in hell Officially though the Chinese

government denies the existence of political prisoners Subsequent to Chinalsquos Universal Periodic

Review an outcome report was published which came under fire from various sides The Human

Rights Watch called the substance of the report to be ―manifestly so far removed from reality

that [it] would immediately discredit anybody that adopted them in a report 44

In the report of

the UNHRC Working Group subsequent to Chinalsquos UPR it is stated that the Chinese

government does not use ―state secrets to suppress human rights defenders 45

It is precisely this

situation that our simulation wishes to remedy discussion should be fact based

The ground realities are different In 2010 Chinese activist and human rights defender Mr Liu

Xiaobo was awarded the Nobel Peace Prize He was jailed by Chinese authorities for

distributing his ―Charter 08 a document that called for freedom of expression and of assembly

among other things The government incarcerated him for an 11 year time-period on the charge

of subversion Subsequent to the prize the Chinese government came down hard on other human

rights activists Indeed those celebrating the awarding of the prize to Mr Xiaobo were arrested

arbitrarily While distributing fliers celebrating the win many were imprisoned on the grounds of

―inciting subversion of state power The Report of the Special Rapporteur on the situation of

human rights defenders published in 2011 makes mention of these facts46

The Chinese

government labeled the award an ―obscenity It is vague allegations such as these that allow

governments to thwart dissidents As expected though according to the report of the HRC

Working Group No individual or press has been penalized for voicing their opinions or

views47

When discussing China and political prisoners it is important to mention the Falun Gong

movement It is a spiritual variant of Buddhism and originated in China on the basis of the

teachings of its founder Li Hongzhi The movement was supported within the Chinese

43

httpwwwceccgovpagesvictims20101010_PPD_AR10pdfPHPSESSID=705596c0e91f35e392e6f0ecbb78d6

7c 44

httpwwwhrworgennews20090610human-rights-watch-statement-upr-outcome-report-china 45

httpdaccess-dds-nyunorgdocUNDOCGENG0916299PDFG0916299pdfOpenElement 46

httpwww2ohchrorgenglishissuesdefendersdocsAHRC1644Add1_EFSonlypdf Page 63 47

httpdaccess-dds-nyunorgdocUNDOCGENG0916299PDFG0916299pdfOpenElement Para 71

UNHRC 14 of 44

officialdom initially However Falun Gonglsquos popularity within the masses as well as its

independence from the state and its spiritual teachings was soon perceived as a threat to the

government By the late 1990lsquos the Chinese government cracked down on the movement and

labeled it as a heretical organization Chinese legislation uses the expression ―Xiejiao zuzhi to

refer to a wide range of sectarian or unorthodox religious groups which do not meet official

approval The Falun Gong movement is included in this list48

The Falun Gong followers are the

worldlsquos largest group of prisoners of conscience The PRC often picks up practitioners and

accuses them of ―using an evil cult to destroy implementation of the law 49

China with its strict non-religious government did not take kindly to this new movement that

had garnered millions of followers both within China and internationally between 1992 and the

crackdown in 1999 Today Falun Gong is practiced freely in more than 70 countries around the

world with clubs and associations existing in a range of settings50

Beginning at the turn of the

millennium the authorities started to ban access to websites that contained material about the

movement Indeed a search on the movement on Chinalsquos Xinhua News Agency website will

even today yield nothing (It may be an interesting experiment for delegates to conduct) Those

who reported the initial crackdown were ―followed detained interrogated and threatened

according to a letter written in 1999 by The Foreign Correspondents Club (FCC) of China51

The Falun Gong movementlsquos official website deals with its persecution thus The complex

rationale behind the persecution can be broken into four elements a paranoid dictators fear of

Falun Gongs meteoric growth and soaring popularity that same dictators intense jealousy of

Falun Dafas popularity the inherent conflict between the communist regimes savage political

ideology and its polar oppositemdashFalun Dafas principles of Truthfulness Benevolence

Forbearance and the very nature of communism which to sustain itself requires periodically

labeling a small segment of the population as the class enemy to struggle against52

The Chinese crackdown on Falun Gong practitioners involved a ban on practicing it by the

Chinese Communist Party whose members as aforementioned were interestingly initially

adherents to the movement in significant numbers Indeed the party was divided from within

over their stance on the movement The government formulated an ―anti-cult law a few months

after issuing a warrant for the founderlsquos arrest ―During the first two years of the crackdown

between 150 and 450 group leaders and other members were tried for various crimes and

sentenced to prison terms of up to 18-20 years53

To this day ―central leaders turn a blind eye to

48

httpwwwamnestyorgenlibraryassetASA170112000en7a361a8e-df70-11dd-acaa-

7d9091d4638fasa170112000enhtml 49

httpwww2ohchrorgenglishissuesdefendersdocsAHRC1644Add1_EFSonlypdf 50

httpwwwfaluninfonettopic22 51

httpwwwamnestyorgenlibraryassetASA170112000en7a361a8e-df70-11dd-acaa-

7d9091d4638fasa170112000enhtml 52

httpwwwfalundafaorgengfaqshtmlpersecution 53

httpfpcstategovdocumentsorganization67820pdf Page 4

UNHRC 15 of 44

local methods of suppression against unrepentant practitioners including the reported use of

torture54

Also worth noting is the fact that Chinalsquos judicial system has been alleged to be anything but

conducive to providing justice to those using the system Indeed it is a repressive tool used by

the government to silence dissent China with its vast land mass and various provinces and

municipalities must work hard to keep its Centre strong Scores of individuals who are more

obscure than human rights activists and such are imprisoned by the government while ironically

seeking justice It has long been the custom for people of the countryside to seek justice in

Beijing if they felt that their local authorities had treated them unfairly However modern China

has not taken kindly to this tradition Local authorities are evaluated on the basis of the number

of complaints the Centre receives about them Thus they have a vested interest in thwarting the

reports of any complaints about them to Beijing Those who complain are whisked off to black

jails where ―detainees are denied access to legal counsel and in most cases contact with family

and friends They ―are kept under constant surveillance and subject to often arbitrary physical

and psychological abuse55

Chinalsquos record with regard to political prisoners and its tradition of suppressing dissent are

exacerbated by the sheer scale on which dissent is thwarted The aspect of potential torture of

prisoners further complicates the issue It is troubling that the issue of Chinese political prisoners

only gained international prominence with the case of Mr Liu Xiaobo It is not the only nation in

the world to adopt such strict policies in order to further its own ideology and the committee will

do well to ruminate upon how this tradition can be discontinued so as to allow people their

essential political freedoms

The Infringement of Rights in the Conflict with Tibet

Despite the furor that has been inconsistently directed towards its human rights record China

continues to impose tightening restrictions on rights of expression association and assembly

The Chinese government carries on devising social and economic changes that retain its firm

authority over its citizens which in turn enables a host of human rights violations In the context

of Tibet China has failed to address the grievances of the people there who have been made

victims of social discrimination and have unequal access to opportunities Scores of Tibetans are

marginalized and detained for their religious inclinations which are further suppressed by the

imposition of intense patriotic educationlsquo campaigns whereby socialism is furthered and all sorts

of religious or individualistic tendencies are thwarted

54

Ibid Page 5 55

httpwwwhrworgreports20091112alleyway-hell-0 Page 4

UNHRC 16 of 44

Despite its totalitarian approach China refuses to accept responsibility for the issue Instead it

blames westernlsquo forces for trying to instigate separatism56

The indifference on the part of

China with particular regard to Tibet is apparent with Chinese authoritieslsquo continuous rejection

of ―inconvenient requests by UN human rights experts for visits to the Tibet Autonomous

Region57

During 1912 and 1951 Tibet underwent a period of de facto independence58

While it was still

territorially a part of China it enjoyed relative freedom in its political discourse Tibetan

autonomy was confined within the context of Chinese suzerainty and should not be interpreted

as unrestrained political independence Since 1951 however the Chinese government has taken

steps to ensure its absolute and undeniable dominance over Tibet from which emanates the strife

under discussion Gross violations of human rights have taken place in China administered by

officials with the purpose of cultivating consent with regard to its control over the region

Suppression has led to the inevitable extensive discontent in Tibet a fury which was unleashed

in 2008 The Tibetan unrest of 2008 was a series of protests and demonstrations - not merely in

the Tibet Autonomous Region but elsewhere as well - that later transformed into rioting burning

looting and even killing59

The rioters set fire to state vehicles and clashed violently with the

police installed in the region The crackdown of Chinese authorities in response to the riots was

severe resulting in deaths on both sides and mass imprisonment by state authorities The degree

to which human rights were violated and abused during this crackdown cannot be overstated

The Chinese also revoked the freedom of sharing of information and imposed a ban on the entry

of media officials in the region to contain

information about the unrest and play down

protests60

A Tibetan Government in Exile has existed in India

since 1959 established by the 14th

Dalai Lama61

This Central Tibetan Administration considers the

issue as an illegitimate military occupation by the

Chinese state The Administration works with the

agendas of restoration of freedom in Tibet and rehabilitation of Tibetan refugees

Historical facts refute such a fallacy however The simple reality that the installation of the 14th Dalai Lama

needed the approval of the national government is sufficient proof that Tibet did not possess any independent power

during that period ndash (httpwwwchinaorgcne-whitetibet9-2htm)

56

httpwwwunhcrorgrefworldcountryAMNESTYCHN49b8dfc11a0html 57

Ibid 58

Grunfeld A Tom Reassessing Tibet Policy 2000 59

httpwwwnytimescom20080316worldasia16iht-tibet111134870html 60

Watts Jonathan Branigan Tania (March 18 2008) Tension rises as armed police mass in capital The

Guardian (London) Retrieved November 1 2011 61

httpwwwtibetnetenindexphpid=14

UNHRC 17 of 44

The censured freedom of expression is one of the multiple infringements on rights that are

imposed by China on Tibet Tibetans are denied the basic right to articulate their views through

political discourse Human rights activists advocate the freedom of speech for Tibetans under the

existing and future political arrangements Religious and political figures in Tibet are placed

under house arrest limiting their freedom of movement (in contradiction to article 13 of the

Universal Declaration of Human Rights)62

As was highlighted during the unrest in 2008 China

has often stripped the Tibetan population of its fundamental rights to associate and assemble In

2000 nine Tibetan prisoners in Kandze were charged for participating in a peaceful protest to

five-year prison terms in October 1999 (which were later increased to ten-year terms)63

This example leads us to another crop of abuse conducted overtly by Chinese authorities

arbitrary detention Article 9 of the Universal Declaration of Human Rights reads ―No one shall

be subjected to arbitrary arrest detention or exile64

Chinese law however permits authorities

to detain persons without formally arresting or charging them and persons may be sentenced

administratively to up to 3 years in reeducation-through-labor camps and other similar facilities

without a trial

Chinese authorities have been unresponsive to concerns expressed by the United Nations

Working Group on Arbitrary Detention No counter-explanation was given either over the case

of three Tibetans who had their sentences extended for staging a peaceful political protest during

the Working Groups visit to Drapchi in October 1997 despite international pressure65

Infinite

examples of arbitrary arrests and detentions exist in China international authorities have called

on China to cease this practice and release such detainees immediately absent evidence that they

have engaged in criminal acts No state can or should be able to hold anyone for engaging in

peaceful political activity All humans

should be granted internationally recognized

due-process protections which includes the

right to be informed of the charges leveled

against them66

The question of whether

these detainees are given an impartial trial if

one at all is not even raised

In addition to the arrests carried out in

violation of international law there are

grave evidences of abuses during detention

62

httpwwwhrworgnews20000612human-rights-violations-tibet 63

Ibid 64

httpwwwunorgendocumentsudhr 65

httpwwwhrworgnews20000612human-rights-violations-tibet 66

httpwwwhrworgnews20000612human-rights-violations-tibet

UNHRC 18 of 44

Incidences of beatings at time of arrest and torture (including the administration of electric

shocks and deprivation of food and medical treatment)67

during custody are widely reported

These are not isolated cases rather the product of a holistic policy of dealing with political

dissidents In one notable incident in May 1998 political prisoners in Drapchi staged major

protests to coincide with a visit from a European Union delegation The protests were non-

violent but the authorities reaction was severe several protestors were shot at and one monk

Lobsang Gelek subsequently died68

The Convention Against Torture (CAT ratified by China in 1988) requires the state to prevent

torture and punish those in violation of the law China has not amended its own laws to comply

with even the first article of CAT69

Such practices explicitly stand in contempt of Article 5 of

the Universal Declaration of Rights which censures the use of torture or cruel treatment as

punishment Dr Manfred Nowak the UN Special Rapporteur on Torture stated that ―he was

struck by the strictness of prison discipline and a palpable level of fear and self-censorship when

talking to detainees following his brief assessment of Chinese and Tibetan prisons in 200570

The committee will be looked upon to review ways in which the situation can be monitored more

carefully and what responses if any can be cultivated to impede similar future actions by

China

The continued violations of religious freedom and implementation of policies designed to

diminish religious practices by the State to serve its political needs is a cause of concern Again

referring to the Universal Declaration of Human Rights Article 18 reads ―Everyone has the right

to freedom ofhellipreligion this right includes freedomhellipto manifest his religion or belief in

teaching practice worship and observance71

The policies implemented by Chinese authorities

through use of coercion violent repression and imprisonment impinge upon the freedom of

Tibetans to practice their religion freely China has also strictly enforced re-education programs

for dissident factors within the state The program is aimed at ―combating separatism protecting

stability and promoting development and is intended to reform the political ideology of people

who refuse to accept state control of what they perceive as vital aspects of their religious lives

and beliefs The committee will be expected to deliberate upon the protection of religious

freedom and practices of individuals as well as the validity of these re-education programs in

light of human rights and liberties

Tibet is not the only region where political tensions surrounding autonomy run high The

Kosovo-Serbian conflict is pertinent to recall The Republic of Kosovo declared itself to be an

independent entity on February 17 2008 As of 11 October 2011 85 UN states recognize the

independence of Kosovo However Serbia maintains that Kosovo is a UN governed entity under

67

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 68

httpwwwfreetibetorgabouttorture 69

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 70

Ibid 71

httpwwwunorgendocumentsudhr

UNHRC 19 of 44

its sovereignty Russia and China are among those who do not recognize the Republic while the

USA UK and France have recognized Kosovolsquos declaration of independence This highlights the

rift between the United Nations Security Council over the issue The case of Tibet is all the more

important in light of the fact that many such pockets exist in the world struggling for self-

determination

Media Links

httpwwwfreetibetorgnewsmedia2008-protests-summary

httpwwwguardiancoukworldgallery2008mar19tibetchinapicture=333178281ampindex=7

Chinarsquos Violation of Ethnic Minority Rights

One of the greatest blemishes on Chinalsquos human rights record is in the area of ethnic minorities

and the extent to which China protects ethnic minority rights On paper Chinalsquos policies are

based on ethnic equality and regional ethnic autonomy Ethnic minorities are supposed to be

benefitting from preferential policies in the political economic cultural and educational spheres

However the ground realities are infinitely different Questions have been raised over the extent

to which the government fairly provides services to these minorities and allocates resources

equally to them The Chinese government is seen to largely prefer its Han majority The

minorities claim they are exploited for their resources and in turn not even provided with the

same level of social services as the Han people China is an atheistic government and the fact

that many ethnicities garner their identity in major part from their religious affiliation leads to a

precarious situation The Mongols Tibetans and Uighurs all come to mind when discussing the

issue of China and ethnic minority rights

―Everyone is entitled to all the rights and freedoms set forth in this Declaration without

distinction of any kind such as race colour sex language religion political or other opinion

national or social origin property birth or other status Furthermore no distinction shall be

made on the basis of the political jurisdictional or international status of the country or

territory to which a person belongs whether it be independent trust non-self-governing or

under any other limitation of sovereignty

- Article 2 Universal Declaration of Human Rights

The International Convention on the Elimination of Racial Discrimination defines racial

discrimination as any distinction exclusion restriction or preference based on race colour

descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the

recognition enjoyment or exercise on an equal footing of human rights and fundamental

UNHRC 20 of 44

freedoms in the political economic social cultural or any other field of public life72

It is due to

this that the international community has adopted the norm of subsuming ethnicity under the

terminology of race

―The Peoples Republic of China is a united multi-ethnic country So far 56 ethnic groups have

been identified and recognized by the central government The population of various ethnic

groups differs greatly While the Han ethnic group has the largest population and that of the

other 55 ethnic groups is relatively small so they are customarily referred to as ethnic

minoritieslsquo According to the fifth national census conducted in 2000 the population of all the

55 ethnic minority groups totaled 10449 million accounting for 841 percent of the total

population of China73

Chinas official 55 minorities are located primarily in the south west

and north of China Only Tibet and Xinjiang have a majority population of official minorities

while all other provinces municipalities and regions of China have a Han majority

One of Chinalsquos autonomous regions is the Xinjiang Uighur Autonomous Region (XUAR)

located in western China The area is vast accounting for one sixth of Chinalsquos land and houses

around 13 major ethnicities including the Uighurs who are a predominantly Muslim people with

origins in Central Asia The Uighurs have had strained ties with the state and have often resisted

Chinese authority74

In turn the Chinese government has reacted sometimes violently against

restless factions in the region One of the most passive aggressive forms of response on the part

of the Peoplelsquos Republic has been the encouragement of the migration of the Han people ndash

Chinalsquos ethnic majority ndash to the XUAR75

Around 90 of Xinjiangs population comprised of

Uighurs in 1949 now it is estimated that Uighurs make up only about 45 of the population76

The policies in Xinjiang are said to be designed to ―promote economic development not

demographic change In reality though the influx of migrants has amplified Uighur discontent

as Han and Uighurs compete over limited jobs and natural resources77

The United Stateslsquo

Congressional-Executive Commission on China reported that in 2006 the XPCC (Xinjiang

Production and Construction Core) reserved approximately 800 of 840 civil servant job openings

for Han Chinese78

One of the causes of the Han monopoly in the employment sector is the

linguistic advantage afforded to them and perpetuated by the education system As part of its

efforts to implicitly impose a unified culture the language policy was altered by the state with

an increased focus on use of Mandarin in schools at the expense of the local languages

Methods of education special to the ethnic peoples of the XUAR including the Muslim Uighurs

are suppressed For example a campaign by the PRC in 2001 targeted religious teachers and

72

httpwww2ohchrorgenglishlawcerdhtm 73

httpenglishgovcnofficial2005-0728content_18127htm 74

httpwwwcfrorgchinaeast-turkestan-islamic-movement-etimp9179 75

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p8 76

httpnewsbbccouk2hiasia-pacific3330803stm 77

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p4 78

httpwwwcolumbiaeducunewsclips20080801UighursTWPOSTpdf

UNHRC 21 of 44

endeavored to sever ties between mosques and groups involved in allegedly ―separatist

activities Around 8000 imams were required to undergo ―political reeducation in this regard

and become ―patriotic religious personalities Ethnic minorities are educated in ways that do not

allow them to learn their own languages or practice their own religion In 2001 for example a

Muslim girl was expelled from school for praying 79

Moreover in an attempt to further its socialist agenda and bind ethnic minorities together

minority cultural activities are often hindered In its place nationalistic values are given a

premium and integrated into society so as to tie the entire country in a unified Chinese foldlsquo

Resultantly an asymmetry with regards to the provision of services and protection of cultural

identity can be found in almost every ethnic minority region in the country The repression

against minorities has wider implications on the human rights situation for all This leads to

creation of a vindictive attitude among the minorities not only against the government but also

the Han majority

In July 2009 this attitude manifested itself in

the form of severe riots between the Han and

Uighur communities in Xinjianglsquos capital city

Urumqi Ethnic tensions elevated to the point

that police involvement was made necessary

According to Chinese state media at least 150

people were killed and more than 800 were

injured The riots were reportedly sparked by a

Uighur protest over the ethnically motivated

killing of two Uighur workers in the southern

province of Guangdong

On the topic of allegations of separatism it is interesting to note that post 911 it has been noted

that the Chinese government has used concerns about terrorism as a method for suppressing

ethnic activity This is possible through the characterization of certain ethnicities as having

fundamental leanings The Muslim Uighurs fell under fire for this very reason after the

September 2001 attacks

One of the ways that the Chinese government with its Han leanings has asserted its presence in

the region is through the smokescreen of the XPCC The Peoplelsquos Liberation Army and the

XPCC are present in the region per the government to ―consolidate border defense accelerate

79

wwwminorityrightsorgdownloadphpid=29 Page 30

UNHRC 22 of 44

Xinjianglsquos development and reduce the economic burden on local governments and the local

people of all ethnic groups80

The heavy militarization of ethnic minority

regions also enables the Chinese government

to quickly respond to skirmishes between the

minorities and the Han For example clashes

between the Uighurs and the Han in the

XUAR are quickly clamped down upon The

response by Chinese authorities always

focuses on the minority groups in the region

The typical response includes a period of

strike hardlsquo security measures during which the minorities are subjected to police patrols of

crowded areas identity checks street searches increased criminal investigations and accelerated

trials The measures also include mandatory political indoctrination classes for the Uighur

population Swift Chinese response to ethnic dissidence precludes the possibility of trying

protestersrioters under due process This phenomenon also contributes to the controversy of

China and its policy of arbitrary imprisonment

Essential to any countrylsquos social progress is the protection and provision of the basic rights to all

its citizens For a country like China which has a significant standing in the international

community the degree to which human rights are upheld comes under added scrutiny Minorities

need to be guaranteed provision of not only fundamental rights but additional ones that grant

them equal opportunities

Recent Developments

3 November 2010 UN Secretary General pushes China on human rights

Ban Ki-moon the United Nations secretary general has called on China to respect human rights

after critics accused him of dodging the issue on a trip to Beijing The UN secretary general met

Hu Jintao the Chinese president but failed to challenge Mr Hu on the imprisonment of Liu

Xiaobo the democracy activist who was awarded this years Nobel Peace prize and raise the

issue of human rights81

80

httpwwwchinaorgcne-white200305269htm 81

httpwwwtelegraphcouknewsworldnewsasiachina8107148UN-Secretary-General-pushes-China-on-human-

rightshtml

UNHRC 23 of 44

5 November 2011 Yeqing Ji from Shanghai China will most likely not be able to have children

after she said two forced abortions physically impaired her uterus82

8 September 2011 The Chinese government has renewed Googlelsquos license to allow it to

continue operating its local website in the country83

13 November 2011 Seven months ago

Chinese police detained the countrylsquos most prominent artist Ai Weiwei at the airport and drove

him to a hidden location It was the beginning of what is to be a two-and-a-half month nightmare

for the architect and sculptor who is also a former darling of the Communist Party who later

turned into an outspoken government critic Ai was held on vague charges of economic crimes

was kept in isolation and subjected to Kafka-esque interrogations84

April 19 2011 Amnesty International a 21-year-old monk Phuntsog set himself on fire in an

apparent anti-government protest in March 2011 Instead of putting out the flames Chinese

police beat the young monk creating huge resentment in the monastery85

At least 11 ethnic

Tibetans have been detained for protesting against the event and against government policies

They are at risk of torture and other ill-treatment86

29 May 2011 300 Tibetan monks detained in Kirti monastery by Chinese security forces87

15 September 2011 Chinese Uighurs economic fears

Amid ethnic tensions minority regards modernization plans in Xinjiang as favoring Han Chinese

migrants88

20 November 2011 Another of Chinalsquos minorities the Hui Muslims in Ningxia do not feel

stigmatized

―There is an important reason why Hui and Han Chinese get along with each other Unlike

Muslims of the other ethnic minorities like Uighur Kazakh Kyrgyz and Tajik the Hui Muslims

speak Mandarin just like the Hans89

82

httpabcnewsgocomBusinesswoman-china-forced-abortions-leaves-unable-

childrenstoryid=14880884Tsia7LIk6so 83

httpwwwbbccouknewsbusiness-14832392 84

httpwwwthedailybeastcomnewsweek20111113ai-weiwei-speaks-out-on-his-detentionhtml 85

httphradvorgaggregatorsources10 86

httpwwwamnestyorgenlibraryassetASA170212011end75f7611-be66-4d5a-9391-

c80c43501d56asa170212011enhtml 87

httphumanrightshouseorgArticles16503html 88

httpwwwaljazeeracomvideoasia20110920119158016969449html 89

httpwwwtodayszamancomnews-263322-chinas-hui-muslims-do-not-feel-stigmatizedhtml

UNHRC 24 of 44

Conclusion

The United Nations Human Rights Council at LUMUN 2012 will be looked upon to provide a

framework for the resolution of these issues in a universal context The scope of the issues

should be expanded and applied to countries other than China The committee will have to make

recommendations which have universal application and resolve all aspects of the issue

comprehensively For any queries related to the study guide please do contact either (or both)

the committee directors at the given addresses

UNHRC 25 of 44

Topic Area B Abolishing the Death Penalty

Introduction to the Topic Area

The death penalty is formally defined as the execution of an offender sentenced to death after

conviction by a court of law of a criminal offenselsquo90

The concept of a capital crime is subjective

and states have made use of this practice in response to multiple forms of crime The use of the

death penalty has produced much controversy with regard to its apparent violation of

fundamental human rights as delineated in the Universal Declaration of Human Rights and

subsequent human rights charters and treaties It is asserted that the use of death penalty is in

contravention to the peopleslsquo right to life promised to every individual under Article 3 of the

Declaration91

Moreover Article 2 of the Charter of Fundamental Rights of the European Union

lucidly bars the imposition of death penalty as a form of punishment92

Arguments against the

use of death penalty are also made on the grounds of inhumane methods which are employed to

see out the process Historically multiple methods have been used which include death by

hanging severing of the head lethal injection shooting and electrocution93

94

As a response states have made keen efforts to abolish

the death penalty particularly in the last two decades as

can be interpreted from the graph on the right which

represents the number of states that have abolished the

death penalty Countries belonging to the European

region with the exclusion of Russia and Belarus have

sought to revoke the use of the practice The death

penalty is most commonly seen to be a formal practice

in most of the developing countries The trend is

apparent in Latin America Africa and Asia

96 countries have formally abandoned the use of death penalty 58 countries allow the use95

Other states have abolished the penalty in practice but the laws remain in place for the

imposition of the penalty as a response to certain crimes The imposition of the death penalty has

90

httpwwwbritannicacomEBcheckedtopic93902capital-punishment 91

httpwwwunorgendocumentsudhr 92

httpwwweuroparleuropaeucharterpdftext_enpdf 93

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffle

re-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 94

httpwwwdeathpenaltyinfoorgmethods-execution 95

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf

Figure 1 (Drag to enlarge)

UNHRC 26 of 44

seen a decline over the recent years with a fall in the number of executions that take place

annually It would however be incorrect to assume that the practice is not prevalent or widely in

effect Amnesty International reported that at least 2024 new death sentences were imposed in 67

countries in 2010 Moreover there were at least 17833 people sentenced to death worldwide at

the end of 201096

Again these are minimum figures which are the safest that can be inferred

from the given research There were 527 known executions carried out in 2010 globally97

This

figure however does not include the number of executions that took place in China where

analysts believe that more than a thousand people were put to death in the past year

The statistics represent the number of people executed through capital punishment One way to

formally define capital punishment is to regard it as the state sanctioned killing of an individual

through a judicial process as a punishment for a crime (defined as a capital crime by the state)98

Capital punishment is the most obvious and prevalent manifestation of the death penalty It is

often perceived as a statelsquos right in order to preserve law and order against any individual who

engages in serious crimes that threaten other individuals or the state Those who advocate against

the use of capital punishment label it as a symptom of a culture of violence not a solution to

itlsquo99

The controversy surrounding the topic is based on the legal ethical and moral acceptability

of the statelsquos right to an individuallsquos life The debate entails several social and economic factors

some of which will be reviewed in closer detail in the relevant section of this guide

One of the most striking aspects related to the issue is the imposition of the capital punishment

on juveniles The sentencing of juveniles to death is in clear breach of international law The

morality and validity of such a practice is often called into question and has been put under

relentless scrutiny despite all of which the practice is still carried out in a number of countries

Historically the United States China and Iran have the worst records relating to juvenile death

sentences100

The study guide also includes a separate section for the case of juveniles in which

the legal and social aspects of the problems are detailed

As stated states have made use of the death penalty to punish crimes of varying natures The use

of the death penalty is reserved for only the most seriouslsquo crimes as put forth in international

law101

The notion of a capital crime however is a subjective one states that have doled out

death sentences have defined it differently In certain countries the death penalty is only used to

charge criminals accused of war crimes In other countries the penalty is reserved for crimes like

96

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf 97

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010 98

httpusersrcncommwooddeathpenhtml 99

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 100

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 101

httpwwwunorgdocumentsecosocdocs1995e1995-78htm

UNHRC 27 of 44

murder rape or even robbery States also use the death penalty against individuals who are guilty

of treason The issue however is that many states practicing the death penalty impose the

punishment even when the crimes do not meet the threshold for the aforementioned most

seriouslsquo crimes The ability of states to define what constitutes as a capital crime has led to states

abusing their powers as has been observed in the sentences ordained by military courts

Moreover even the radicals who make the argument of the punishment fitting the crime agree

that in many instances individuals have been executed for softlsquo crimes crimes that were

certainly not tantamount to charges of murder or crimes against humanity The issue of apparent

violations of human rights is further exacerbated in these instances The study guide will discuss

the universal crimes that have resulted in the awarding of the death penalty and examine the

issue further The committee will be expected to discuss the feasibility of drawing up an

international definition of crimes which in isolated instances perhaps may be appropriate for a

sentence like the death penalty

Another pertinent aspect surrounding the debate is that of extrajudicial killings The execution of

a person by state authorities without the authority of a judicial proceeding is termed as an

extrajudicial killing Many states have used extrajudicial killings to establish their authority and

order without having to wade through the legal process By doing so they have deprived scores

of people of their fundamental right to free and fair trials Governments have also employed this

tactic to exercise political aggression and to suppress dissent A particular point of concern is the

fact that some states have made use of these killings even when they have officially revoked the

imposition of the death penalty Extrajudicial killings are carried out persistently in many

countries ndash the list includes countries like Iran Iraq Israel Philippines102

Most recently the

killing of Anwar al-Awlaki and Samir Khan in Yemen by a sanctioned National Security Council

move by the USA was an example of states embarking on such paths to eliminate threats to

national securitylsquo103

102

Multiple citations for each country can be found in the second paragraph article titled Extrajudicial killinglsquo on

Wikipedia 103

httpwwwtelegraphcouknewsworldnewsbarackobama7564581Barack-Obama-orders-killing-of-US-cleric-

Anwar-al-Awlakihtml

UNHRC 28 of 44

Wrongful convictions lead many to believe in the inherent incapacity of the death penalty to

serve justice On September 21 2011 US citizen Troy Davis was executed in Georgia after

which seven of the nine witnesses who testified against him in the case that led to his execution

recounted or retracted their evidences A petition with nearly one million signatures was put

forth to reconsider his case it was rejected On the same day a 17 year old boy was publicly

hanged in Iran for killing a popular athlete his justification based on self-defense was ignored

Also on the same day a Pakistani national was executed in China on grounds of drug trafficking

an offence that does not often result in capital punishment The need for the resolution of this

issue is pressing and the committee needs to deal with all aspects of the problem in a

comprehensive and enduring manner104

Capital Punishment

In 2010 23 countries implemented capital punishment A total of 527 executions (plus the 1000+

carried out in China alone) were known to have taken place with Iran Yemen USA and North

Korea meting out a significant number of sentences105

The figure is lower than the records

computed for years past There are more states which are now abolitionist either in law or in

practice with regard to the imposition of the punishment Gabon was officially the last country

to rescind the practice while bills calling for an end to capital punishment have been presented

to parliaments in Lebanon Mali Mongolia and South Korea106

Renewed efforts are

104

httpwwwamnestyorgennews-and-updatesus-executes-death-row-prisoner-troy-davis-2011-09-21 105

httpwwwguardiancouknewsdatablog2011mar29death-penalty-countries-world 106

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010

UNHRC 29 of 44

simultaneously being made on the international front to implement laws against capital

punishment A third resolution establishing a moratorium on the use of death penalty passed the

UN General Assembly on December 21 2010107

Despite the increasing momentum towards an eventual elimination of the practice the number of

executions taking place annually is a cause of major concern Advocates of the death penalty

assert that the practice is an effective means of deterring crime in society Public executions are

often held in Iran Afghanistan and Palestine for example to demonstrate the fate awaiting

those who commit similar crimes108

Arguments are made on the grounds of justice that it is

proper and fair to take an eye for an eye and a life for a life and that some individuals deserve

it for the crimes they commit

Those opposing the practice question the morality of an action sanctioned by the state which

endorses deprivation of the right to life a fundamental human right under the Universal

Declaration of Human Rights109

There are inescapable flaws within legal systems which are

aggravated by discrimination prosecutorial misconduct and inadequate legal representation

Moreover the risk of executing the innocent can never be eliminated110

An alternative is

presented in the form of imprisonment for life without parole which results in a parallel debate

is imprisonment for life a viable surrogate to the practice of death penalty A thread from this

debate also relates to the economic feasibility of carrying out a death sentence as opposed to the

feasibility of imprisonment for life

Deterrence

Capital punishment is often propagated as an adequate approach in the deterrence and prevention

of crime The logic is that if murderers are sentenced to death potential murderers will think

twice before killing for fear of losing their own life The deterrence theory presumes that the

once the punishment for a certain crime is established the criminal by committing the crime

voluntarily assumes the risk of receiving the prescribed punishment for the crime Only when the

most severe punishment has been set will there be a possibility of an individual evaluating their

actions in light of the consequences111

107

httpwwwundemocracycomA-RES-62-149pdf 108

httpwwwamnestyorgennews-and-updatessharp-rise-public-executions-iran-executes-first-juvenile-

offenders-2011-2011-04-27 109

wwwunorgendocumentsudhr 110

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 111

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 30 of 44

The death penalty it is asserted ensures that convicted criminals do not offend again moreover

it is deemed to be a just penalty for atrocious crimes It is further alleged that many criminals

who are set free even after lengthy sentences regress and go on to commit heinous crimes

Therefore there should never be the possibility of a release clause112

The deterrence theory is modeled on the grounds of human psychology logic and rationale As a

professor of jurisprudence Ernest van den Haag PhD wrote ―Common sense lately bolstered

by statistics tells us that the death penalty will deter murder if anything can People fear nothing

more than death Therefore nothing will deter a criminal more than the fear of death These

statements were further validated by a US Supreme Court Justice who said on record that

Prima facie the penalty of death is likely to have a stronger effect as a deterrent to normal

human beings than any other form of punishmentlsquo113

Numerous studies have been conducted on

the subject with varying results One of the most established studies was conducted in USA

using a panel data set of over 3000 counties from 1977 to 1996 which concluded that on

average one death sentence resulted in 18 fewer murders114

Delegates will be expected to be

familiar with other similar studies

These studies are commonly refuted as not crediblelsquo by opponents of the capital punishment

who also deny the correlation between crime and death penalty as a fabricated relationship which

cannot be empirically established115116

A study of the relationship between capital punishment

and the incidence of murder was conducted for the UN in 1988 and updated in 2002 The

conclusion was ―The investigation has not provided scientific proof that executions have more

deterrent effect than life imprisonment It is unlikely that such evidence will ever come

Deterrence hypothesis finds no support in the survey117

Another counter-argument asserts that crime is still a persistent feature of the societies that

continue to award the death penalty while many of the abolitionist states enjoy low crime rates

This can be evidenced by comparing the crime rate in USA or Pakistan with that of Canada or

some European state In Canada for example the homicide rate per 100000 fell from a peak of

309 in 1975 the year before the abolition of the death penalty for murder to 241 in 1980 and

in 2003 27 years after abolition the homicide rate was 173 per 100000 44 per cent lower than

in 1975118

112

httpwwwdeathpenaltyinfoorgfacts-about-deterrence-and-death-penalty 113

httpdeathpenaltyproconorgviewresourcephpresourceID=002000 114

httpdeathpenaltyproconorgsourcefilesThe20Deterrent20Effect20of20Capital20Punishmentpdf ndash

Delegates should carefully examine certain parts of this document to establish the credibility of the assertions made

They should also invest in trying to locate studies that refute the assertions made in this and similar studies 115

httpwwwdeathpenaltyinfoorglaw-enforcement-views-deterrencelawenforcement 116

httpwwwdeathpenaltyinfoorgDonohueDeterpdf 117

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 118

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml

UNHRC 31 of 44

The lack of evidence on the production of a unique deterrent effect points to the danger of

relying on the deterrence hypothesis as a basis for public policy on the death penalty

Retribution amp Morality

An important terminology that delegates need to familiarize themselves with is that of

―retributivism119

It is defined as ―a policy of criminal justice that sponsors the punishment of

criminals in retribution for the harm they have inflicted120

Criminals deserve to be punished in

proportion to the gravity of their crime regardless of whether the victim or anyone else desires

it we may all deeply regret having to carry out the punishment but consider it warrantedlsquo is

what many say in defense of the theory121

The need for the establishment of a visibly just state arises from the potential risks of not having

one As has been visible in many developing countries with shaky legal systems when criminals

are not adequately punished for their unlawful behavior the public takes the law into its own

hands and deals out vigilante justice It is asserted that retributivism is essential for a functioning

society where individuals respect the supremacy of law

The concept of retribution in society is also grounded in religious beliefs The concept of an eye

for an eye has been a part of all three Abrahamic traditions However in the modern world it is

Islamic nations that still retain the practice based on these grounds Similar traditions can be

found in Hinduism Christianity and Buddhism as well as other religions in different parts of the

world In many non-secular countries the constitutions and state laws are derived from religious

doctrines

Opponents dismiss this aspect of the argument as being emotionally charged with little rational

logic to support the contention They claim that the establishment of capital punishment gives

birth to a culture of violence endorsed by the state It perpetuates the cycle of aggression and

brutality something which the state should be actively inhibiting not endorsing

Wrongful Convictions

The death penalty carries with it the danger of wrongfully convicting an innocent person for

crimes he did not commit There is the potential for capital punishment to evolve into sheer

miscarriage of justice as in certain circumstances states are often seen to rush the trials and

convict the accused hastily This practice takes foremost apparently in military courts often in

119

Cavadino M amp Dignan J (1997) The Penal System An Introduction (2nd ed) p 39 London Sage 120

httpdictionaryreferencecombrowseretributivism 121

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 32 of 44

the developing or lesser-developed countries where the system of law is not properly established

It is not however exclusive to these countries Examples can be drawn from countries like

Philippines Thailand Iran and Palestine to name just a few where executions are carried out at

alarming pace removing the possibility of reviews

On 15 August 2004 Atefah Rajabi Sahaaleh was hanged in a public square in the Iranian city of

Neka Her death sentence was imposed for adultery and crimes against chastity122123

Atefah

was executed a week after the trial was run Following the execution the Judge for the case was

arrested for investigation by the Intelligence Ministry The media reported that in addition to the

confession of his rape of Atefeh Judge Rezai who served as judge jury and executioner also

confessed to torturing her during interrogations to extract names of others she had relations with

No transcripts from court proceedings were recorded The State alleged that Atefah was 22 at the

time of her execution A witness later claimed The judge just looked at her body because of

the developed physique and declared her as 22124

ndash her birth certificate revealed she was born

in 1988 Furthermore Atefah did not have access to a proper defense where she could contest

charges leveled against her This is one example of many such cases of miscarriage of justice

Something that recurs in these cases is the failure of the police or prosecuting authorities to

prevent the use of unreliable witnesses the misuse of evidence or confessions and the provision

of inadequate defense representation The advent of DNA profiling and the use of it as positive

evidence in criminal cases has resulted in the exoneration of multiple death row inmates on

grounds of forensic evidence or lack thereof Since 1973 138 people have been released from

death row in the United States after it was proven that they were innocent125

In 2009 Paul

House was cleared of murder and exonerated in Tennessee USA after having served 22 years

on death row His innocence was proclaimed in light of substantial additional DNA testing and

further investigationlsquo 126

Amnesty International has noted examples of wrongful convictions from elsewhere as well

including Jamaica Japan China Nigeria and Tanzania127

Paul G Cassell a former law clerk to

the Chief Justice of USA stated the mistaken release of guilty murderers should be of far greater

concern than the speculative and heretofore nonexistent risk of the mistaken execution of an

innocent personlsquo highlighting the case made by those who advocate the death penalty even in

light of wrongful convictions128

122

httpwwwcosmolearningcomdocumentariesexecution-of-a-teenage-girl1 123

httpnewsbbccouk2hi5217424stm 124

httpnewsbbccouk2hi5217424stm 125

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 126

httparticlescnncom2009-05-13justicetennesseeexonerated_1_death-row-inmate-dna-evidence-house-

arrest_s=PMCRIME 127

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 128

httpdeathpenaltycurriculumorgstudentcaboutargumentstestimony3bhtm

UNHRC 33 of 44

Alternative to Death Penalty

All abolitionist states have reverted to the practice of sentencing criminals to life imprisonment

(some without parole) which is also termed as death by incarceration Widely regarded as a more

humane course of action life imprisonment is also alleged to be a more economical practice

While ensuring public safety by keeping criminals away from society this system also saves the

lives of innocent people who have been falsely or wrongfully convicted The setup inhibits and

curbs the cycle of violence while retaining the deterrence factor it is strongly asserted

Advocates for the death penalty are averse towards life imprisonment for a number of reasons

They cite the unreliability of the system as one of the flaws which impedes the possibility of

such a sentence being successful A certain James Moore serves as a valid example in this case

In 1962 James Moore raped and strangled 14-year-old Pamela Moss The victimlsquos parents opted

out of capital punishment for Moore and he was instead sentenced to life in prison without

parole Twenty years later a change in sentencing laws in 1982 renders James Moore eligible for

parole every two years129130

Kenneth McDuff is another example McDuff was convicted and sentenced to life imprisonment

Years later due to the issue of overcrowding in prisons McDuff was released following which

he killed eight more people McDufflsquos example is of an individual from a developed country

with an established legal system in place131

Overcrowding is a feature of prisons in developing

or lesser developed countries In many such states criminals have also been known to easily

break out from penitentiaries

The economic aspect of the debate is murky at best There is a lack of empirical data on the

subject which is why the arguments of both these sides cannot be settled beyond doubt

Advocates of capital punishment insist that the overall costs of the practice are far lesser than the

costs of housing an inmate for a lifetime132

They also suggest that the life imprisonment allows

criminals to conceive new habeas corpus petitions which on legal grounds cannot be rejected

automatically resulting in more trials

On the other hand substantial arguments are made which stress that the cost of legal proceedings

in capital cases is in truth more than that of other cases States and nations spend a significant

portion of the taxpayerlsquos money in meting out such punishments133

Delegates when addressing

this portion of the debate will need to be aware of the financial aspects of the issue as it forms

for many states an important part of whether capital punishment should be revoked or

not

129

httpwesleylowecomcphtmldeter 130

httpwwwnytimescomkeywordparole 131

httpwesleylowecomcphtmldeter 132

Ibid ndash view section titled Capital Punishment and its costslsquo 133

httpwwwamnestyusaorgour-workissuesdeath-penaltyus-death-penalty-factsdeath-penalty-cost

UNHRC 34 of 44

Imposition of Death Penalty on Juveniles

The prohibition on the death penalty for crimes committed by juvenile offendersmdashpersons under

age 18 at the time of the offensemdashis well established in international law specifically in the

Convention on the Rights of Child

ldquoNo child shall be subjected to torture or other cruel inhuman or degrading treatment or

punishment Neither capital punishment nor life imprisonment without possibility of release shall

be imposed for offences committed by persons below eighteen years of agerdquo134

- Article 37(a) Convention on the Rights of Child

ldquoSentence of death shall not be imposed for crimes committed by persons below eighteen years

of age and shall not be carried out on pregnant womenrdquo135

- Article 6(5) International Covenant on Civil and Political Rights

The treaties are a unanimously agreed set of non-negotiable standards and obligations By

acceding to the treaties and ratifying them governments commit to protecting and ensuring

childrens rights and to holding themselves accountable for this commitment before the

international community

Even though the practice of capital punishment on juveniles is relatively rare however in clear

contravention of international law nine countries have executed offenders who were juveniles at

the time of their crimes between 1990 and 2005136

These countries include the Peoples Republic

of China (PRC) the Democratic Republic of the Congo Iran Nigeria Pakistan Saudi Arabia

Sudan the United States and Yemen137

The USA has since moved to implement a ban on capital

punishment for juveniles However in most other countries of the preceding list the practice is

still enshrined in the judicial system Iranlsquos record in particular has been abominable over the last

decade It has carried out 39 executions of persons under the age of 18 since 2005 Presently

over a hundred individuals are placed on death row for crimes committed as juveniles The

executions of Mahmoud Asgari Ayaz Marhoni and Makwan Moloudzadeh became international

symbols of Irans child capital punishment and the judicial system that hands down such

134

httpwww2ohchrorgenglishlawcrchtm 135

httpwww2ohchrorgenglishlawccprhtm 136

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf - This document by the Human Rights Watch

called The Last Holdoutslsquo is a good summary of juvenile executions and should be reviewed 137

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 - Contains a list with

statistics and details of countries which have allowed the imposition of death sentence to juveniles

UNHRC 35 of 44

sentences138139140

Saudi Arabia and China too have questionable records that need to be

scrutinized further

While regional treaties and charters usually substantiate international law the Arab Human

Rights Charter of 2004 is unique among regional and international treaties in that the ban on the

juvenile death penalty in it is not absolute but merely optional141

Furthermore national laws in states that observe such a practice are in violation of

international legally-binding charters In Iran and Saudi Arabia laws usually treat a child the

same way as an adult criminal offender would be treated Article 10(3) of the International

Covenant on Civil and Political Rights emphasizes the need for demarcation between the

handling of children and that of adults in stating ―Juvenile offenders shall be segregated from

adults and be accorded treatment appropriate to their age and legal status142

The definition of a child in these Muslim states is unclear as adulthood is associated with

attainment of puberty which is a relative concept The Committee on the Rights of the Child in

January 2005 censured the Saudi government for its practice of imposing the death penalty on

juveniles terming it a serious violation of the fundamental rights The committee was deeply

alarmed over the discretionary power judges hold to treat juveniles as adults as was stated in

the committeelsquos report Iran too was strongly condemned following the release of an

international report highlighting the dire situation in Iran by the International for Human Rights 143

138

httpwwwfoxnewscomstory0293329798200html 139

httpnewsbbccouk2himiddle_east7130380stm 140

httpenwikipediaorgwikiCapital_punishmentIran 141

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 142

httpwww2ohchrorgenglishlawccprhtm 143

httpwwwfidhorgIMGpdfRapport_Iran_finalpdf

UNHRC 36 of 44

On August 19 2008 Iranian authorities executed Seyyed Reza Hejazi at Isfahan Central Prison

for his role in a murder committed in 2003 when he was 15 Hejazi was tried as an adult by

Branch 106 of the Isfahan General Court even if he did not qualify as one under international

stipulations and sentenced to death on November 14 2005144

In Saudi Arabia Mu`id bin

Husayn bin Abu al-Qasim bin `Ali Hakami was executed on July 10 2007 for a murder he

allegedly committed three years earlier when he was 13 years old145

The judges in these states

because of the implementation of the Sharialsquo law have a large amount of discretion with regard

to their rulings This discretion is often abused in the interrogation and judicial proceedings In

Pakistan authorities hanged Mutaber Khan in Peshawar Central Prison on June 13 2006 on

charges of murder of five people The fact that he was held in the juvenile wing of Peshawar

Central prison and the evidence presented by the accused confirming that his age was below 18

at the time of the killings were not taken into account during the trials and Mutaber was charged

as an adult in the case146

While the above does not cover exhaustively the practice of capitally punishing juveniles the

committee is expected to be well read on the matter The committee will be required to devise

ways to strictly apply the existing international law on the subject to curtail further deaths of

juveniles by states A series of recommendations on better implementation of international

covenants will be expected from the committee Delegates at UNHRC will also have to

familiarize themselves with the stipulations in the national laws of countries practicing juvenile

death penalties (Iran Saudi Arabia Pakistan Nigeria Sudan Yemen and UAE among others) to

discuss how these states are constitutionally able to bend international law and mete out the

illegal punishments

144

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 145

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 146

See FIDH and Human Rights Commission of Pakistan ―Slow march to the gallows and ―Condemned Prisoner

Executed Dawn Newspaper Karachi June 14 2005 httpwwwdawncom20060614nat16htm

UNHRC 37 of 44

Universality of Laws Incurring the Death Penalty

In countries which have not abolished the death penalty capital punishment may be imposed

only for the most serious crimes it being understood that their scope should not go beyond

intentional crimes with lethal or other extremely grave consequences

- Safeguards guaranteeing protection of the rights of those facing the death penalty147

Laws incurring the death penalty or capital crimes have certain uniformity the world over This

is of course barring states that are religiously affiliated and whose law systems are not secular

in nature The list of capital crimes for those states with non-secular legal systems is slightly

different The Human Rights Commission had decided that the imposition in the State party of

the death penalty for offences which cannot be characterized as the most serious including

apostasy committing a third homosexual act illicit sex embezzlement by officials and theft by

force are incompatible with Article 6 of the Covenant Economic offences including

embezzlement drug related offences political offences and robbery were also referred to148

The reason why looking into capital crimes and trying to garner a global impression of them is

important is that the death penalty can only realistically be abolished in a piecemeal way This

process will entail shortening the list of capital crimes The UN formally notes that ―in order

fully to guarantee the right to life provided for in article 3 of the Universal Declaration of

Human Rights the main objective to be pursued is that of progressively restricting the number of

offences for which capital punishment may be imposed with a view to the desirability of

abolishing this punishment in all countries149

The first established death penalty laws date as far back as the Eighteenth Century BC in the

Code of King Hammaurabi of Babylon which codified the death penalty for 25 different crimes

By the 1700s 222 crimes were punishable by death in Britain including stealing cutting down a

tree and robbing a rabbit warren In the 19th

century the death penalty was eliminated for over

100 of the 222 crimes punishable by death 150

In modern times the UN Special Rapporteur on

extrajudicial summary or arbitrary executions has stated that the death penalty should be

eliminated for economic crimes and drug-related offences and that the restrictions to its use

―exclude the possibility of death sentences for so-called victimless offences ndash including acts of

treason espionage and other vaguely defined acts usually described as crimes against the Statelsquo

or disloyaltylsquo and ―actions primarily related to prevailing moral values such as adultery and

prostitution as well as matters of sexual orientation151

147

httpwww2ohchrorgenglishlawpdfprotectionpdf 148

httpwwwunhchrchtbsdocnsf0bc310a747155dff88025655300537faeOpendocument 149

General Assembly resolution 2857 httpwwwunodcorgpdfcompendiumcompendium_2006_part_01_05pdf 150

httpdeathpenaltycurriculumorgstudentcabouthistoryhistoryPDF 151

httpswwwabofimedia24259report10pdf

UNHRC 38 of 44

Contrary to the made recommendations even political dissent warrants a death sentence in

several countries most notably in China and Iran In 2010 nearly 20 Kurdish people were

executed for political offences in Iran The country is known for keeping dissent especially from

the Kurds suppressed Most are executed on the grounds of moharebeh or enmity against God

Moreover challenging the power of the Ayatollah is also punishable by death These charges are

neither explicit nor in line with international guidelines over what crimes are punishable

capitally In Iran judges must handle such cases carefully as Iranian law provides for only one

punishment if an individual is found to be guilty of treason Libya too thwarts political dissent

with firm laws in place for punishing by death those who illegally form groups organizations or

associations against the state152

Saudi Arabia too is worth note for its vaguely phrased laws governing capital punishment

Intentional murder and crimes that spread ―mischief in the land (Fasad fil-ardh) merit death In

2010 the government announced that it had executed 26 people all by beheading Crimes that

―spread mischief include witchcraft and sorcery153

How is one convicted of witchcraft in the

21st century What can the international community do when regarding countries such as these

Treason arguably along with murder is the capital crime that has yet to be phased out by many

countries In some such as Brazil treason during warfare is the only crime for which a person

can be sentenced to death In the Gaza Strip under Hamas any sort of cooperation with Israeli

forces during military actions is also punishable by death In others including Algeria Bahrain

Iran and Malaysia treason is punishable by death in all circumstances The United States too has

federal laws governing treason under which traitors ―shall suffer death154

Child sex abuse is another crime that is widely held to merit the death penalty In Russia for

example according to the Russian Public Opinion Research Center an overwhelming majority

consider the death penalty to be an acceptable punishment especially in relation to molestation

155 In 2009 however Russias Constitutional Court effectively abolished the death penalty by

extending indefinitely a 13-year-old moratorium on capital punishment156

Indonesia has some of the strictest penalties for drug related crimes in the world Roughly half of

those on death row are incriminated with drug-related charges157

In 2008 though the most high

profile executions were of terrorists Three of those found responsible for the 2002 Bali

bombings were executed by shooting158

Generally speaking however a significant proportion of

152

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 153

httpwwwstategovgdrlrlshrrpt2010nea154472htm 154

httpdeathpenaltyproconorgviewresourcephpresourceID=1172 155

httpenrianrutrenddeath_penalty 156

httpwwwreuterscomarticle20091119idUSLJ330478 157

httpwwwnytimescom20080711worldasia11iht-indo114421132html 158

httpnewsbbccouk2hiasia-pacific7718246stm

UNHRC 39 of 44

the executions or death sentences recorded (in 2010) in China Egypt Indonesia Iran Laos

Libya Thailand United Arab Emirates and Yemen were for drug-related offences In December

2010 the amended Anti-Narcotics law came into force in Iran extending the scope of the death

penalty to include additional categories of illegal drugs (for example crystal meth) possession

of which became punishable by death Also around the same time the National Assembly of

Gambia voted to extend the scope of the death penalty by making the possession of more than

250g of heroin or cocaine an offence punishable by death159

Several states allow for the death penalty for crimes of blasphemy and other crimes for

nonviolent expression and association In Pakistan Aasia Bibi a Christian mother of five was

charged with blasphemy and sentenced to death after a trial largely believed to be unfair on 8

November 2010 She is currently on death row The country is also noted for its laws concerning

capital crimes The list includes 27 crimes most of which go beyond the notion of ―most serious

crimes as recommended by the International Covenant on Civil and Political Rights Extra-

marital sex and blasphemy are examples of some capital crimes in the country In December

2007 Pakistan voted against a United Nation General Assembly resolution for a moratorium on

the death penalty The year before however the nation amended its law on rape and adultery

charges which are no longer punishable by death160

As far back as 1989 recommendations have been made as to how to abolish the death penalty

Member states (of the UN) have been urged ―to publish for each category of offence for which

the death penalty is authorized and if possible on an annual basis information about the use of

the death penalty including the number of persons sentenced to death the number of executions

actually carried out the number of persons under sentence of death the number of death

sentences reversed or commuted on appeal and the number of instances in which clemency has

been granted and to include information on the extent to which the safeguards referred to above

are incorporated in national law161

The committee must inspect how far this recommendation

has been adopted and should seek to rectify the weaknesses in the system of gradually

abolishing the death penalty Can a target year be designated by which crimes meriting the death

penalty could be made universal How can countries with non-secular legal systems be brought

into the fold of international law

159

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 160

httpwwwfiacatorgenIMGpdfdppakistan-enpdf 161

httpgraduateinstitutechfacultyclaphamhrdocdocsecosocresolutiondeathpen1989html

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 12: UNHRCFINAL

UNHRC 8 of 44

The appalling state of affairs is further augmented by the actions the Chinese state takes to

impede the birth of conceived children It implements very strictly a program of compulsory

sterilization and forced abortions to minimize the birth of a second child in a family While

abortion itself may be a debatable and controversial topic the subset of such a controversy in the

form of a state-regulated forced abortion is excruciatingly black and white The undeniable

cruelty of forced abortions is not a deterrent strong enough for the Chinese government and the

phenomenon exists widely in China In fact the policy leads to an estimated 13 million abortions

every year with many of those ordered by local authorities Infanticide is a common practice

especially in the rural areas of the country19

Women are abducted by the state and at the cost of

their lives are forced to undergo forced and mostly unsafe abortions

In October of 2010 China forced an eight-month pregnant woman into an abortion for breaching

the one-child policy20

Government officials entered Xiao Aiyinglsquos residence hit and kicked her

in the stomach and subsequently dragged her to the hospital where doctors injected her with a

lethal drug to kill her unborn baby Xiaolsquos husband later described the incident They held her

hands behind her back and pushed her head against the wall and kicked her in the stomachlsquo The

animalistic discourse adopted by the government officials is a testimony to Chinalsquos open rebuke

for human rights More recently Womenlsquos Rights without Frontierslsquo and China Aidlsquo reported

the death of a six-month pregnant woman during a forced abortion on October 12th

201121

Jihong Ma was seized by Family Planning Officials for a forced abortion having violated the

one-child policy

While the positive environmental impact of the prevention of 300 to 400 million births may be

cited22

it must be noted the one-child policy privileges only the wealthy who can afford the

fines for additional births and have better access to contraceptives and health care while

punishing the poor who are financially crippled by the fines incurred for additional births

Moreover this policy punishes the children of the poor because they are more likely to be kept

hidden from the state and thus will not have access to health care and the education they need to

climb out of poverty In this way social disparity is further perpetuated within the existing

framework

Another adverse byproduct of Chinas 30-year-old family planning policy is the gender

imbalance that is now manifested most clearly among those of marrying age The British

Medical Journal claimed that in 2005 there were 32 million more males than females (under the

age of 20) in China23

Even though China banned prenatal sex screening in 199424

illegal

ultrasound tests allow prospective parents to choose the gender they prefer for their only child

19

httpwwwdailymailcouknewsarticle-1322601China-forces-woman-abortion-EIGHT-months-breaching-

child-policyhtml 20

Ibid 21

httpwwwwomensrightswithoutfrontiersorgblogp=429 22

―Has Chinas one-child policy worked httpnewsbbccouk2hiasia-pacific7000931stm 23

British Medical Journal BMJ 2009 338b1211 httpwwwbmjcomcontent338bmjb1211full 24

―A Brief History of Chinas One-Child Policy httpwwwtimecomtimeworldarticle08599191286100html

UNHRC 9 of 44

creating a massive imbalance This imbalance will lead to drastic results in the next few years an

implication the committee needs to take in account when establishing a framework for

responding to the issue

The Human Rights Council conducted a Universal Periodic Review of China in 200925

to much

international consternation and surprise the report lacked substantial evidence implicating

China and was instead found to be extremely vague The role of the United Nations in defining

and drawing attention to the issue is of key significance and the Human Rights Council must

make recommendations on how the United Nations can enhance its capacity in laying the

foundations for the case The Council can also make recommendations regarding the changes

that can be brought about in the conduct of the Review and otherwise in order to be able to

contain the issue with lesser difficulty

The committee will be called upon to review reproductive rights in detail including the implicit

and explicit consequences on the people of China Access to reproductive healthcare is a

problem the world over and is often consciously violated by states Is there a way to control

these violations perhaps through devising enhanced monitoring strategies

The Case of Internet Censorship in China and the Right to Free Speech

Everyone has the right to freedom of opinion and expression this right includes freedom to hold

opinions without interference and to seek receive and impart information and ideas through any

media and regardless of frontiers26

- Article 19 Universal Declaration of Human Rights

Everyone shall have the right to freedom of expression this right shall include freedom to seek

receive and impart information and ideas of all kinds regardless of frontiers either orally in

writing or in print in the form of art or through any other media of his choice 27

- Article 19 (2) International Covenant on Civil and

Political Rights

The Peoplelsquos Republic of China along with being the most populous region of the world is also

home to the worldlsquos largest collection of internet users According to Xinhua Chinalsquos state-run

English news agency Chinalsquos internet user ship exceeded 500 million users as of September

201128

China is also the worldlsquos largest media market However despite these impressive

statistics it is both interesting and disturbing to note that the Republic is also remarkable for its

25

httplibohchrorgHRBodiesUPRDocumentsSession4CNA_HRC_WG6_4_CHN_3_Epdf 26

httpwwwohchrorgENUDHRDocumentsUDHR_Translationsengpdf The Universal Declaration of Human

Rights 27

httpwww2ohchrorgenglishlawpdfccprpdf The International Covenant on Civil and Political Rights 28

httpnewsxinhuanetcomenglish2010china2011-0929c_131167919htm

UNHRC 10 of 44

censorship history About a dozen government bodies control internet usage including the

Ministry of Public Security29

It has been noted that while the Chinese advertising industry is

booming this freedom does not extend to editorial content of newspapers30

This phenomenon of

Chinese censorship has been labeled in the mainstream global media as the Great Firewall of

China The Firewall serves to filter both the information coming into China as well as

information generated within the nation It is beyond being a clever pun a matter of concern for

the committee because of its repressive characteristic The State imposes such extreme

restrictions of freedom of information under the premise of protection of its nationalistic

interests However its negative connotation is much obvious and its resemblance to Orwelllsquos

Ministry of Truth and the notion of thought control is uncanny The Peoplelsquos Republic has signed

(not ratified) the International Covenant on Civil and Political Rights The committee can look

into the reasons behind this as well as assess current global membership to the covenant

Chinalsquos Internet censorship is centered on the control of political thought The Measures on the

Administration of Internet Information Services and the Provisions on the Administration of

Internet News and Information Services are the two main instruments used to do so31

Section 19

of the latter deserves special attention and casts its scope to prohibit activities that disrupt

―national policies on religion propagating evil cults and feudal superstitions jeopardize ―the

security of the nation harm ―integrity of the nationlsquos unity or ―the honor or the interests of the

nation among other things32

Regulations are so stringent that in 2008 only eight websites out

of a total of 430000 in Guangdong Province ndash Chinalsquos most populous region -- were able to

obtain news publication qualifications permits33

The Internet news and information services entities engaging in Internet news and information

services shall abide by the Constitution laws and regulations by persisting in providing service

for the people and serving socialism and guiding public opinion to protect the interests of the

nation and the public

- Article 3 Provisions on the Administration of Internet News and Information Services

The national report submitted by China to the Working Group for the Universal Periodic Review

in 2009 exhibited the governmentlsquos opinion that ―with such easy fast and diverse ways of

gaining access to information and expressing opinion including criticism of the Government

Chinese citizens are enjoying an entirely new lifestyle34

According to a white paper published

29

httpwwwhrworgreports2006china08063htm_ftnref28 30

httpnewsbbccouk2hiafricacountry_profiles1287798stm 31

httpwwwhrichinaorgcrfarticle3244 32

httpwwwchinaitlaworgp1=printampp2=051006175116 Provisions on the Administration of Internet News and

Information Services

Please peruse the following httpwwwhrworgreports2006china08063htm for commentary on the Provisions 33

Ibid 34

httplibohchrorgHRBodiesUPRDocumentsSession4CNA_HRC_WG6_4_CHN_1_Epdf

UNHRC 11 of 44

in 2008 by the Information Office of the State Council the internet is a ―crystallization of human

wisdom and ―Chinese citizens fully enjoy freedom of speech on the internet 35

Chinalsquos policies have relevance beyond

their contravention of what may seem to be

abstract principles China has jailed the

largest number of internet dissidents the

world over The case of Liu Shaokun for

example is a notable one He was a

teacher in Sichuan province which had

been hit in 2008 by a ravaging earthquake

around the time of the Summer Olympics

in Beijing China had been praised for

allowing reporters to openly cover the

earthquake Much of this openness however was part of a bid to soothe the international

community and project Beijinglsquos image as being the perfect venue for the Olympics Shaokun

however was sentenced to a year of labor for posting photographs of schools affected by the

earthquake He is among countless others who have been silenced36

When the Arab Spring flowered over the Middle East China cracked down on many social

networking sites to curb pro-democracy sentiments Amongst these was LinkedIn blocked over

the fact that one of its users had mentioned the possibility of a ―Jasmine Revolution in China37

The government blocks discussions about the Dalai Lama the Tiananmen Square protests and

the Falun Gong spiritual movement among other things In April of 2007 the Chinese version of

MySpace launched but lacked discussion forums centered on the aforementioned topics among

others including Taiwanlsquos independence In 2010 Google considered withdrawing its services

from China after a spur of cyber-attacks on email accounts of human rights activists 38

Google

and the government reached a deal whereby Google operated by Chinese guidelines within

mainland China However Google has a non-censored operation running in Hong Kong to

which it started routing customers in 2010 when it had concerns over Google accounts being

hacked by authorities It is testament to Chinese control that companies such as Google are

forced to enter the internet market on its terms Other instances of well renowned internet

websites being blocked or affronted include Twitter being banned during the 20th

anniversary of

the Tiananmen killings

The Committee to Protect Journalists ranks China as one of the worst internet censors The

Chinese government has been alleged of carrying out ―spear-phishing whereby spying software

disguised as legitimate emails is installed on computers that belong invariably to journalists

35

httpchinaorgcngovernmentwhitepapernode_7093508htm 36

httpcpjorgreports201012cpj-journalist-prison-census-iran-china-highest-14-yearsphp 37

httpwwwbbccouknewstechnology-12586462 38

httpnewsbbccouk2hi8460129stm Please look at this link for a timeline of Chinalsquos internet history

UNHRC 12 of 44

Victims included those writing about Liu Xiaobo the imprisoned human rights defender who

received the Nobel Peace Prize in 201039

According to statistics over 80 of Chinas netizens rely mainly on the Internet for news 40

With this state of affairs and increasing dependence the world over on the internet as a major

source of information discussing information monopolies is crucial To isolate a country of over

a billion and deny it access to information in the age of technology may not seem a palpable

physical or otherwise contravention of human rights however its consequences are

tremendous While one may think that media censorship is restricted to dictatorial regimes the

case of China serves to refute that line of thought Media censorship is prevalent even in

countries as varied as Indonesia India Mexico and Russia ndash all of whom rank relatively low on

the Press Freedom Index41

Looking at instances worldwide and the justifications given for

restricting rights will be a useful direction to take while researching

The following website is a useful tool to check the status of websites in China

httpwwwgreatfirewallofchinaorg

Political Prisoners in China and Illegal Detention

Political prisoners are those whose imprisonment is carried out arbitrarily on contestable and

controversial grounds Governments detain certain individuals on the basis of allegedly valid

grounds which are not always disclosed or declared Many detainees charge existence of ulterior

motives or extrajudicial reasons on part of the state for their detention The phenomenon of

political prisoners is often associated with closed regimes such as Burma and the DPRK

However the Peoplelsquos Republic of China too does not escape scrutiny when the topic of political

prisoners is at hand The phenomenon of political prisoners resonates so loudly in the

international spheres particularly because governments deny the existence of political prisoners

they claim that all detainees are lawfully held under criminal law The unfair detainment of

persons or the capture of people to serve the interests of a government contravenes many human

rights including freedom of expression association and assembly Indeed a countrylsquos political

imprisonment record is one of the crucial indicators of its human rights situation

Amnesty International views political prisoners as prisoners of conscience These are more

specifically ―people who have been jailed because of their political religious or other

conscientiously-held beliefs ethnic origin sex color language national or social origin

economic status birth sexual orientation or other status42

39

httpwwwcpjorgreports201105the-10-tools-of-online-oppressorsphp 40

httpchinaorgcngovernmentwhitepapernode_7093508htm 41

httpenrsforgpress-freedom-index-20101034html 42

httpwwwamnestyusaorgour-workissuesprisoners-and-people-at-riskprisoners-of-conscience

UNHRC 13 of 44

According to the (US) Congressional Executive Commission on China over 5000 cases of

politically or religiously motivated imprisonments have been made It has detailed documented

information on the status of 1452 of these prisoners and

notes that its information is far from complete and that the

true story of Chinalsquos political prisoners remains unknown 43

The plight of political prisoners in China is speculated upon

by various international organizations Among these is the

Human Rights Watch which has gone as far as labeling the

locations for holding political prisoners ―black jails and

―alleyways in hell Officially though the Chinese

government denies the existence of political prisoners Subsequent to Chinalsquos Universal Periodic

Review an outcome report was published which came under fire from various sides The Human

Rights Watch called the substance of the report to be ―manifestly so far removed from reality

that [it] would immediately discredit anybody that adopted them in a report 44

In the report of

the UNHRC Working Group subsequent to Chinalsquos UPR it is stated that the Chinese

government does not use ―state secrets to suppress human rights defenders 45

It is precisely this

situation that our simulation wishes to remedy discussion should be fact based

The ground realities are different In 2010 Chinese activist and human rights defender Mr Liu

Xiaobo was awarded the Nobel Peace Prize He was jailed by Chinese authorities for

distributing his ―Charter 08 a document that called for freedom of expression and of assembly

among other things The government incarcerated him for an 11 year time-period on the charge

of subversion Subsequent to the prize the Chinese government came down hard on other human

rights activists Indeed those celebrating the awarding of the prize to Mr Xiaobo were arrested

arbitrarily While distributing fliers celebrating the win many were imprisoned on the grounds of

―inciting subversion of state power The Report of the Special Rapporteur on the situation of

human rights defenders published in 2011 makes mention of these facts46

The Chinese

government labeled the award an ―obscenity It is vague allegations such as these that allow

governments to thwart dissidents As expected though according to the report of the HRC

Working Group No individual or press has been penalized for voicing their opinions or

views47

When discussing China and political prisoners it is important to mention the Falun Gong

movement It is a spiritual variant of Buddhism and originated in China on the basis of the

teachings of its founder Li Hongzhi The movement was supported within the Chinese

43

httpwwwceccgovpagesvictims20101010_PPD_AR10pdfPHPSESSID=705596c0e91f35e392e6f0ecbb78d6

7c 44

httpwwwhrworgennews20090610human-rights-watch-statement-upr-outcome-report-china 45

httpdaccess-dds-nyunorgdocUNDOCGENG0916299PDFG0916299pdfOpenElement 46

httpwww2ohchrorgenglishissuesdefendersdocsAHRC1644Add1_EFSonlypdf Page 63 47

httpdaccess-dds-nyunorgdocUNDOCGENG0916299PDFG0916299pdfOpenElement Para 71

UNHRC 14 of 44

officialdom initially However Falun Gonglsquos popularity within the masses as well as its

independence from the state and its spiritual teachings was soon perceived as a threat to the

government By the late 1990lsquos the Chinese government cracked down on the movement and

labeled it as a heretical organization Chinese legislation uses the expression ―Xiejiao zuzhi to

refer to a wide range of sectarian or unorthodox religious groups which do not meet official

approval The Falun Gong movement is included in this list48

The Falun Gong followers are the

worldlsquos largest group of prisoners of conscience The PRC often picks up practitioners and

accuses them of ―using an evil cult to destroy implementation of the law 49

China with its strict non-religious government did not take kindly to this new movement that

had garnered millions of followers both within China and internationally between 1992 and the

crackdown in 1999 Today Falun Gong is practiced freely in more than 70 countries around the

world with clubs and associations existing in a range of settings50

Beginning at the turn of the

millennium the authorities started to ban access to websites that contained material about the

movement Indeed a search on the movement on Chinalsquos Xinhua News Agency website will

even today yield nothing (It may be an interesting experiment for delegates to conduct) Those

who reported the initial crackdown were ―followed detained interrogated and threatened

according to a letter written in 1999 by The Foreign Correspondents Club (FCC) of China51

The Falun Gong movementlsquos official website deals with its persecution thus The complex

rationale behind the persecution can be broken into four elements a paranoid dictators fear of

Falun Gongs meteoric growth and soaring popularity that same dictators intense jealousy of

Falun Dafas popularity the inherent conflict between the communist regimes savage political

ideology and its polar oppositemdashFalun Dafas principles of Truthfulness Benevolence

Forbearance and the very nature of communism which to sustain itself requires periodically

labeling a small segment of the population as the class enemy to struggle against52

The Chinese crackdown on Falun Gong practitioners involved a ban on practicing it by the

Chinese Communist Party whose members as aforementioned were interestingly initially

adherents to the movement in significant numbers Indeed the party was divided from within

over their stance on the movement The government formulated an ―anti-cult law a few months

after issuing a warrant for the founderlsquos arrest ―During the first two years of the crackdown

between 150 and 450 group leaders and other members were tried for various crimes and

sentenced to prison terms of up to 18-20 years53

To this day ―central leaders turn a blind eye to

48

httpwwwamnestyorgenlibraryassetASA170112000en7a361a8e-df70-11dd-acaa-

7d9091d4638fasa170112000enhtml 49

httpwww2ohchrorgenglishissuesdefendersdocsAHRC1644Add1_EFSonlypdf 50

httpwwwfaluninfonettopic22 51

httpwwwamnestyorgenlibraryassetASA170112000en7a361a8e-df70-11dd-acaa-

7d9091d4638fasa170112000enhtml 52

httpwwwfalundafaorgengfaqshtmlpersecution 53

httpfpcstategovdocumentsorganization67820pdf Page 4

UNHRC 15 of 44

local methods of suppression against unrepentant practitioners including the reported use of

torture54

Also worth noting is the fact that Chinalsquos judicial system has been alleged to be anything but

conducive to providing justice to those using the system Indeed it is a repressive tool used by

the government to silence dissent China with its vast land mass and various provinces and

municipalities must work hard to keep its Centre strong Scores of individuals who are more

obscure than human rights activists and such are imprisoned by the government while ironically

seeking justice It has long been the custom for people of the countryside to seek justice in

Beijing if they felt that their local authorities had treated them unfairly However modern China

has not taken kindly to this tradition Local authorities are evaluated on the basis of the number

of complaints the Centre receives about them Thus they have a vested interest in thwarting the

reports of any complaints about them to Beijing Those who complain are whisked off to black

jails where ―detainees are denied access to legal counsel and in most cases contact with family

and friends They ―are kept under constant surveillance and subject to often arbitrary physical

and psychological abuse55

Chinalsquos record with regard to political prisoners and its tradition of suppressing dissent are

exacerbated by the sheer scale on which dissent is thwarted The aspect of potential torture of

prisoners further complicates the issue It is troubling that the issue of Chinese political prisoners

only gained international prominence with the case of Mr Liu Xiaobo It is not the only nation in

the world to adopt such strict policies in order to further its own ideology and the committee will

do well to ruminate upon how this tradition can be discontinued so as to allow people their

essential political freedoms

The Infringement of Rights in the Conflict with Tibet

Despite the furor that has been inconsistently directed towards its human rights record China

continues to impose tightening restrictions on rights of expression association and assembly

The Chinese government carries on devising social and economic changes that retain its firm

authority over its citizens which in turn enables a host of human rights violations In the context

of Tibet China has failed to address the grievances of the people there who have been made

victims of social discrimination and have unequal access to opportunities Scores of Tibetans are

marginalized and detained for their religious inclinations which are further suppressed by the

imposition of intense patriotic educationlsquo campaigns whereby socialism is furthered and all sorts

of religious or individualistic tendencies are thwarted

54

Ibid Page 5 55

httpwwwhrworgreports20091112alleyway-hell-0 Page 4

UNHRC 16 of 44

Despite its totalitarian approach China refuses to accept responsibility for the issue Instead it

blames westernlsquo forces for trying to instigate separatism56

The indifference on the part of

China with particular regard to Tibet is apparent with Chinese authoritieslsquo continuous rejection

of ―inconvenient requests by UN human rights experts for visits to the Tibet Autonomous

Region57

During 1912 and 1951 Tibet underwent a period of de facto independence58

While it was still

territorially a part of China it enjoyed relative freedom in its political discourse Tibetan

autonomy was confined within the context of Chinese suzerainty and should not be interpreted

as unrestrained political independence Since 1951 however the Chinese government has taken

steps to ensure its absolute and undeniable dominance over Tibet from which emanates the strife

under discussion Gross violations of human rights have taken place in China administered by

officials with the purpose of cultivating consent with regard to its control over the region

Suppression has led to the inevitable extensive discontent in Tibet a fury which was unleashed

in 2008 The Tibetan unrest of 2008 was a series of protests and demonstrations - not merely in

the Tibet Autonomous Region but elsewhere as well - that later transformed into rioting burning

looting and even killing59

The rioters set fire to state vehicles and clashed violently with the

police installed in the region The crackdown of Chinese authorities in response to the riots was

severe resulting in deaths on both sides and mass imprisonment by state authorities The degree

to which human rights were violated and abused during this crackdown cannot be overstated

The Chinese also revoked the freedom of sharing of information and imposed a ban on the entry

of media officials in the region to contain

information about the unrest and play down

protests60

A Tibetan Government in Exile has existed in India

since 1959 established by the 14th

Dalai Lama61

This Central Tibetan Administration considers the

issue as an illegitimate military occupation by the

Chinese state The Administration works with the

agendas of restoration of freedom in Tibet and rehabilitation of Tibetan refugees

Historical facts refute such a fallacy however The simple reality that the installation of the 14th Dalai Lama

needed the approval of the national government is sufficient proof that Tibet did not possess any independent power

during that period ndash (httpwwwchinaorgcne-whitetibet9-2htm)

56

httpwwwunhcrorgrefworldcountryAMNESTYCHN49b8dfc11a0html 57

Ibid 58

Grunfeld A Tom Reassessing Tibet Policy 2000 59

httpwwwnytimescom20080316worldasia16iht-tibet111134870html 60

Watts Jonathan Branigan Tania (March 18 2008) Tension rises as armed police mass in capital The

Guardian (London) Retrieved November 1 2011 61

httpwwwtibetnetenindexphpid=14

UNHRC 17 of 44

The censured freedom of expression is one of the multiple infringements on rights that are

imposed by China on Tibet Tibetans are denied the basic right to articulate their views through

political discourse Human rights activists advocate the freedom of speech for Tibetans under the

existing and future political arrangements Religious and political figures in Tibet are placed

under house arrest limiting their freedom of movement (in contradiction to article 13 of the

Universal Declaration of Human Rights)62

As was highlighted during the unrest in 2008 China

has often stripped the Tibetan population of its fundamental rights to associate and assemble In

2000 nine Tibetan prisoners in Kandze were charged for participating in a peaceful protest to

five-year prison terms in October 1999 (which were later increased to ten-year terms)63

This example leads us to another crop of abuse conducted overtly by Chinese authorities

arbitrary detention Article 9 of the Universal Declaration of Human Rights reads ―No one shall

be subjected to arbitrary arrest detention or exile64

Chinese law however permits authorities

to detain persons without formally arresting or charging them and persons may be sentenced

administratively to up to 3 years in reeducation-through-labor camps and other similar facilities

without a trial

Chinese authorities have been unresponsive to concerns expressed by the United Nations

Working Group on Arbitrary Detention No counter-explanation was given either over the case

of three Tibetans who had their sentences extended for staging a peaceful political protest during

the Working Groups visit to Drapchi in October 1997 despite international pressure65

Infinite

examples of arbitrary arrests and detentions exist in China international authorities have called

on China to cease this practice and release such detainees immediately absent evidence that they

have engaged in criminal acts No state can or should be able to hold anyone for engaging in

peaceful political activity All humans

should be granted internationally recognized

due-process protections which includes the

right to be informed of the charges leveled

against them66

The question of whether

these detainees are given an impartial trial if

one at all is not even raised

In addition to the arrests carried out in

violation of international law there are

grave evidences of abuses during detention

62

httpwwwhrworgnews20000612human-rights-violations-tibet 63

Ibid 64

httpwwwunorgendocumentsudhr 65

httpwwwhrworgnews20000612human-rights-violations-tibet 66

httpwwwhrworgnews20000612human-rights-violations-tibet

UNHRC 18 of 44

Incidences of beatings at time of arrest and torture (including the administration of electric

shocks and deprivation of food and medical treatment)67

during custody are widely reported

These are not isolated cases rather the product of a holistic policy of dealing with political

dissidents In one notable incident in May 1998 political prisoners in Drapchi staged major

protests to coincide with a visit from a European Union delegation The protests were non-

violent but the authorities reaction was severe several protestors were shot at and one monk

Lobsang Gelek subsequently died68

The Convention Against Torture (CAT ratified by China in 1988) requires the state to prevent

torture and punish those in violation of the law China has not amended its own laws to comply

with even the first article of CAT69

Such practices explicitly stand in contempt of Article 5 of

the Universal Declaration of Rights which censures the use of torture or cruel treatment as

punishment Dr Manfred Nowak the UN Special Rapporteur on Torture stated that ―he was

struck by the strictness of prison discipline and a palpable level of fear and self-censorship when

talking to detainees following his brief assessment of Chinese and Tibetan prisons in 200570

The committee will be looked upon to review ways in which the situation can be monitored more

carefully and what responses if any can be cultivated to impede similar future actions by

China

The continued violations of religious freedom and implementation of policies designed to

diminish religious practices by the State to serve its political needs is a cause of concern Again

referring to the Universal Declaration of Human Rights Article 18 reads ―Everyone has the right

to freedom ofhellipreligion this right includes freedomhellipto manifest his religion or belief in

teaching practice worship and observance71

The policies implemented by Chinese authorities

through use of coercion violent repression and imprisonment impinge upon the freedom of

Tibetans to practice their religion freely China has also strictly enforced re-education programs

for dissident factors within the state The program is aimed at ―combating separatism protecting

stability and promoting development and is intended to reform the political ideology of people

who refuse to accept state control of what they perceive as vital aspects of their religious lives

and beliefs The committee will be expected to deliberate upon the protection of religious

freedom and practices of individuals as well as the validity of these re-education programs in

light of human rights and liberties

Tibet is not the only region where political tensions surrounding autonomy run high The

Kosovo-Serbian conflict is pertinent to recall The Republic of Kosovo declared itself to be an

independent entity on February 17 2008 As of 11 October 2011 85 UN states recognize the

independence of Kosovo However Serbia maintains that Kosovo is a UN governed entity under

67

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 68

httpwwwfreetibetorgabouttorture 69

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 70

Ibid 71

httpwwwunorgendocumentsudhr

UNHRC 19 of 44

its sovereignty Russia and China are among those who do not recognize the Republic while the

USA UK and France have recognized Kosovolsquos declaration of independence This highlights the

rift between the United Nations Security Council over the issue The case of Tibet is all the more

important in light of the fact that many such pockets exist in the world struggling for self-

determination

Media Links

httpwwwfreetibetorgnewsmedia2008-protests-summary

httpwwwguardiancoukworldgallery2008mar19tibetchinapicture=333178281ampindex=7

Chinarsquos Violation of Ethnic Minority Rights

One of the greatest blemishes on Chinalsquos human rights record is in the area of ethnic minorities

and the extent to which China protects ethnic minority rights On paper Chinalsquos policies are

based on ethnic equality and regional ethnic autonomy Ethnic minorities are supposed to be

benefitting from preferential policies in the political economic cultural and educational spheres

However the ground realities are infinitely different Questions have been raised over the extent

to which the government fairly provides services to these minorities and allocates resources

equally to them The Chinese government is seen to largely prefer its Han majority The

minorities claim they are exploited for their resources and in turn not even provided with the

same level of social services as the Han people China is an atheistic government and the fact

that many ethnicities garner their identity in major part from their religious affiliation leads to a

precarious situation The Mongols Tibetans and Uighurs all come to mind when discussing the

issue of China and ethnic minority rights

―Everyone is entitled to all the rights and freedoms set forth in this Declaration without

distinction of any kind such as race colour sex language religion political or other opinion

national or social origin property birth or other status Furthermore no distinction shall be

made on the basis of the political jurisdictional or international status of the country or

territory to which a person belongs whether it be independent trust non-self-governing or

under any other limitation of sovereignty

- Article 2 Universal Declaration of Human Rights

The International Convention on the Elimination of Racial Discrimination defines racial

discrimination as any distinction exclusion restriction or preference based on race colour

descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the

recognition enjoyment or exercise on an equal footing of human rights and fundamental

UNHRC 20 of 44

freedoms in the political economic social cultural or any other field of public life72

It is due to

this that the international community has adopted the norm of subsuming ethnicity under the

terminology of race

―The Peoples Republic of China is a united multi-ethnic country So far 56 ethnic groups have

been identified and recognized by the central government The population of various ethnic

groups differs greatly While the Han ethnic group has the largest population and that of the

other 55 ethnic groups is relatively small so they are customarily referred to as ethnic

minoritieslsquo According to the fifth national census conducted in 2000 the population of all the

55 ethnic minority groups totaled 10449 million accounting for 841 percent of the total

population of China73

Chinas official 55 minorities are located primarily in the south west

and north of China Only Tibet and Xinjiang have a majority population of official minorities

while all other provinces municipalities and regions of China have a Han majority

One of Chinalsquos autonomous regions is the Xinjiang Uighur Autonomous Region (XUAR)

located in western China The area is vast accounting for one sixth of Chinalsquos land and houses

around 13 major ethnicities including the Uighurs who are a predominantly Muslim people with

origins in Central Asia The Uighurs have had strained ties with the state and have often resisted

Chinese authority74

In turn the Chinese government has reacted sometimes violently against

restless factions in the region One of the most passive aggressive forms of response on the part

of the Peoplelsquos Republic has been the encouragement of the migration of the Han people ndash

Chinalsquos ethnic majority ndash to the XUAR75

Around 90 of Xinjiangs population comprised of

Uighurs in 1949 now it is estimated that Uighurs make up only about 45 of the population76

The policies in Xinjiang are said to be designed to ―promote economic development not

demographic change In reality though the influx of migrants has amplified Uighur discontent

as Han and Uighurs compete over limited jobs and natural resources77

The United Stateslsquo

Congressional-Executive Commission on China reported that in 2006 the XPCC (Xinjiang

Production and Construction Core) reserved approximately 800 of 840 civil servant job openings

for Han Chinese78

One of the causes of the Han monopoly in the employment sector is the

linguistic advantage afforded to them and perpetuated by the education system As part of its

efforts to implicitly impose a unified culture the language policy was altered by the state with

an increased focus on use of Mandarin in schools at the expense of the local languages

Methods of education special to the ethnic peoples of the XUAR including the Muslim Uighurs

are suppressed For example a campaign by the PRC in 2001 targeted religious teachers and

72

httpwww2ohchrorgenglishlawcerdhtm 73

httpenglishgovcnofficial2005-0728content_18127htm 74

httpwwwcfrorgchinaeast-turkestan-islamic-movement-etimp9179 75

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p8 76

httpnewsbbccouk2hiasia-pacific3330803stm 77

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p4 78

httpwwwcolumbiaeducunewsclips20080801UighursTWPOSTpdf

UNHRC 21 of 44

endeavored to sever ties between mosques and groups involved in allegedly ―separatist

activities Around 8000 imams were required to undergo ―political reeducation in this regard

and become ―patriotic religious personalities Ethnic minorities are educated in ways that do not

allow them to learn their own languages or practice their own religion In 2001 for example a

Muslim girl was expelled from school for praying 79

Moreover in an attempt to further its socialist agenda and bind ethnic minorities together

minority cultural activities are often hindered In its place nationalistic values are given a

premium and integrated into society so as to tie the entire country in a unified Chinese foldlsquo

Resultantly an asymmetry with regards to the provision of services and protection of cultural

identity can be found in almost every ethnic minority region in the country The repression

against minorities has wider implications on the human rights situation for all This leads to

creation of a vindictive attitude among the minorities not only against the government but also

the Han majority

In July 2009 this attitude manifested itself in

the form of severe riots between the Han and

Uighur communities in Xinjianglsquos capital city

Urumqi Ethnic tensions elevated to the point

that police involvement was made necessary

According to Chinese state media at least 150

people were killed and more than 800 were

injured The riots were reportedly sparked by a

Uighur protest over the ethnically motivated

killing of two Uighur workers in the southern

province of Guangdong

On the topic of allegations of separatism it is interesting to note that post 911 it has been noted

that the Chinese government has used concerns about terrorism as a method for suppressing

ethnic activity This is possible through the characterization of certain ethnicities as having

fundamental leanings The Muslim Uighurs fell under fire for this very reason after the

September 2001 attacks

One of the ways that the Chinese government with its Han leanings has asserted its presence in

the region is through the smokescreen of the XPCC The Peoplelsquos Liberation Army and the

XPCC are present in the region per the government to ―consolidate border defense accelerate

79

wwwminorityrightsorgdownloadphpid=29 Page 30

UNHRC 22 of 44

Xinjianglsquos development and reduce the economic burden on local governments and the local

people of all ethnic groups80

The heavy militarization of ethnic minority

regions also enables the Chinese government

to quickly respond to skirmishes between the

minorities and the Han For example clashes

between the Uighurs and the Han in the

XUAR are quickly clamped down upon The

response by Chinese authorities always

focuses on the minority groups in the region

The typical response includes a period of

strike hardlsquo security measures during which the minorities are subjected to police patrols of

crowded areas identity checks street searches increased criminal investigations and accelerated

trials The measures also include mandatory political indoctrination classes for the Uighur

population Swift Chinese response to ethnic dissidence precludes the possibility of trying

protestersrioters under due process This phenomenon also contributes to the controversy of

China and its policy of arbitrary imprisonment

Essential to any countrylsquos social progress is the protection and provision of the basic rights to all

its citizens For a country like China which has a significant standing in the international

community the degree to which human rights are upheld comes under added scrutiny Minorities

need to be guaranteed provision of not only fundamental rights but additional ones that grant

them equal opportunities

Recent Developments

3 November 2010 UN Secretary General pushes China on human rights

Ban Ki-moon the United Nations secretary general has called on China to respect human rights

after critics accused him of dodging the issue on a trip to Beijing The UN secretary general met

Hu Jintao the Chinese president but failed to challenge Mr Hu on the imprisonment of Liu

Xiaobo the democracy activist who was awarded this years Nobel Peace prize and raise the

issue of human rights81

80

httpwwwchinaorgcne-white200305269htm 81

httpwwwtelegraphcouknewsworldnewsasiachina8107148UN-Secretary-General-pushes-China-on-human-

rightshtml

UNHRC 23 of 44

5 November 2011 Yeqing Ji from Shanghai China will most likely not be able to have children

after she said two forced abortions physically impaired her uterus82

8 September 2011 The Chinese government has renewed Googlelsquos license to allow it to

continue operating its local website in the country83

13 November 2011 Seven months ago

Chinese police detained the countrylsquos most prominent artist Ai Weiwei at the airport and drove

him to a hidden location It was the beginning of what is to be a two-and-a-half month nightmare

for the architect and sculptor who is also a former darling of the Communist Party who later

turned into an outspoken government critic Ai was held on vague charges of economic crimes

was kept in isolation and subjected to Kafka-esque interrogations84

April 19 2011 Amnesty International a 21-year-old monk Phuntsog set himself on fire in an

apparent anti-government protest in March 2011 Instead of putting out the flames Chinese

police beat the young monk creating huge resentment in the monastery85

At least 11 ethnic

Tibetans have been detained for protesting against the event and against government policies

They are at risk of torture and other ill-treatment86

29 May 2011 300 Tibetan monks detained in Kirti monastery by Chinese security forces87

15 September 2011 Chinese Uighurs economic fears

Amid ethnic tensions minority regards modernization plans in Xinjiang as favoring Han Chinese

migrants88

20 November 2011 Another of Chinalsquos minorities the Hui Muslims in Ningxia do not feel

stigmatized

―There is an important reason why Hui and Han Chinese get along with each other Unlike

Muslims of the other ethnic minorities like Uighur Kazakh Kyrgyz and Tajik the Hui Muslims

speak Mandarin just like the Hans89

82

httpabcnewsgocomBusinesswoman-china-forced-abortions-leaves-unable-

childrenstoryid=14880884Tsia7LIk6so 83

httpwwwbbccouknewsbusiness-14832392 84

httpwwwthedailybeastcomnewsweek20111113ai-weiwei-speaks-out-on-his-detentionhtml 85

httphradvorgaggregatorsources10 86

httpwwwamnestyorgenlibraryassetASA170212011end75f7611-be66-4d5a-9391-

c80c43501d56asa170212011enhtml 87

httphumanrightshouseorgArticles16503html 88

httpwwwaljazeeracomvideoasia20110920119158016969449html 89

httpwwwtodayszamancomnews-263322-chinas-hui-muslims-do-not-feel-stigmatizedhtml

UNHRC 24 of 44

Conclusion

The United Nations Human Rights Council at LUMUN 2012 will be looked upon to provide a

framework for the resolution of these issues in a universal context The scope of the issues

should be expanded and applied to countries other than China The committee will have to make

recommendations which have universal application and resolve all aspects of the issue

comprehensively For any queries related to the study guide please do contact either (or both)

the committee directors at the given addresses

UNHRC 25 of 44

Topic Area B Abolishing the Death Penalty

Introduction to the Topic Area

The death penalty is formally defined as the execution of an offender sentenced to death after

conviction by a court of law of a criminal offenselsquo90

The concept of a capital crime is subjective

and states have made use of this practice in response to multiple forms of crime The use of the

death penalty has produced much controversy with regard to its apparent violation of

fundamental human rights as delineated in the Universal Declaration of Human Rights and

subsequent human rights charters and treaties It is asserted that the use of death penalty is in

contravention to the peopleslsquo right to life promised to every individual under Article 3 of the

Declaration91

Moreover Article 2 of the Charter of Fundamental Rights of the European Union

lucidly bars the imposition of death penalty as a form of punishment92

Arguments against the

use of death penalty are also made on the grounds of inhumane methods which are employed to

see out the process Historically multiple methods have been used which include death by

hanging severing of the head lethal injection shooting and electrocution93

94

As a response states have made keen efforts to abolish

the death penalty particularly in the last two decades as

can be interpreted from the graph on the right which

represents the number of states that have abolished the

death penalty Countries belonging to the European

region with the exclusion of Russia and Belarus have

sought to revoke the use of the practice The death

penalty is most commonly seen to be a formal practice

in most of the developing countries The trend is

apparent in Latin America Africa and Asia

96 countries have formally abandoned the use of death penalty 58 countries allow the use95

Other states have abolished the penalty in practice but the laws remain in place for the

imposition of the penalty as a response to certain crimes The imposition of the death penalty has

90

httpwwwbritannicacomEBcheckedtopic93902capital-punishment 91

httpwwwunorgendocumentsudhr 92

httpwwweuroparleuropaeucharterpdftext_enpdf 93

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffle

re-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 94

httpwwwdeathpenaltyinfoorgmethods-execution 95

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf

Figure 1 (Drag to enlarge)

UNHRC 26 of 44

seen a decline over the recent years with a fall in the number of executions that take place

annually It would however be incorrect to assume that the practice is not prevalent or widely in

effect Amnesty International reported that at least 2024 new death sentences were imposed in 67

countries in 2010 Moreover there were at least 17833 people sentenced to death worldwide at

the end of 201096

Again these are minimum figures which are the safest that can be inferred

from the given research There were 527 known executions carried out in 2010 globally97

This

figure however does not include the number of executions that took place in China where

analysts believe that more than a thousand people were put to death in the past year

The statistics represent the number of people executed through capital punishment One way to

formally define capital punishment is to regard it as the state sanctioned killing of an individual

through a judicial process as a punishment for a crime (defined as a capital crime by the state)98

Capital punishment is the most obvious and prevalent manifestation of the death penalty It is

often perceived as a statelsquos right in order to preserve law and order against any individual who

engages in serious crimes that threaten other individuals or the state Those who advocate against

the use of capital punishment label it as a symptom of a culture of violence not a solution to

itlsquo99

The controversy surrounding the topic is based on the legal ethical and moral acceptability

of the statelsquos right to an individuallsquos life The debate entails several social and economic factors

some of which will be reviewed in closer detail in the relevant section of this guide

One of the most striking aspects related to the issue is the imposition of the capital punishment

on juveniles The sentencing of juveniles to death is in clear breach of international law The

morality and validity of such a practice is often called into question and has been put under

relentless scrutiny despite all of which the practice is still carried out in a number of countries

Historically the United States China and Iran have the worst records relating to juvenile death

sentences100

The study guide also includes a separate section for the case of juveniles in which

the legal and social aspects of the problems are detailed

As stated states have made use of the death penalty to punish crimes of varying natures The use

of the death penalty is reserved for only the most seriouslsquo crimes as put forth in international

law101

The notion of a capital crime however is a subjective one states that have doled out

death sentences have defined it differently In certain countries the death penalty is only used to

charge criminals accused of war crimes In other countries the penalty is reserved for crimes like

96

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf 97

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010 98

httpusersrcncommwooddeathpenhtml 99

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 100

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 101

httpwwwunorgdocumentsecosocdocs1995e1995-78htm

UNHRC 27 of 44

murder rape or even robbery States also use the death penalty against individuals who are guilty

of treason The issue however is that many states practicing the death penalty impose the

punishment even when the crimes do not meet the threshold for the aforementioned most

seriouslsquo crimes The ability of states to define what constitutes as a capital crime has led to states

abusing their powers as has been observed in the sentences ordained by military courts

Moreover even the radicals who make the argument of the punishment fitting the crime agree

that in many instances individuals have been executed for softlsquo crimes crimes that were

certainly not tantamount to charges of murder or crimes against humanity The issue of apparent

violations of human rights is further exacerbated in these instances The study guide will discuss

the universal crimes that have resulted in the awarding of the death penalty and examine the

issue further The committee will be expected to discuss the feasibility of drawing up an

international definition of crimes which in isolated instances perhaps may be appropriate for a

sentence like the death penalty

Another pertinent aspect surrounding the debate is that of extrajudicial killings The execution of

a person by state authorities without the authority of a judicial proceeding is termed as an

extrajudicial killing Many states have used extrajudicial killings to establish their authority and

order without having to wade through the legal process By doing so they have deprived scores

of people of their fundamental right to free and fair trials Governments have also employed this

tactic to exercise political aggression and to suppress dissent A particular point of concern is the

fact that some states have made use of these killings even when they have officially revoked the

imposition of the death penalty Extrajudicial killings are carried out persistently in many

countries ndash the list includes countries like Iran Iraq Israel Philippines102

Most recently the

killing of Anwar al-Awlaki and Samir Khan in Yemen by a sanctioned National Security Council

move by the USA was an example of states embarking on such paths to eliminate threats to

national securitylsquo103

102

Multiple citations for each country can be found in the second paragraph article titled Extrajudicial killinglsquo on

Wikipedia 103

httpwwwtelegraphcouknewsworldnewsbarackobama7564581Barack-Obama-orders-killing-of-US-cleric-

Anwar-al-Awlakihtml

UNHRC 28 of 44

Wrongful convictions lead many to believe in the inherent incapacity of the death penalty to

serve justice On September 21 2011 US citizen Troy Davis was executed in Georgia after

which seven of the nine witnesses who testified against him in the case that led to his execution

recounted or retracted their evidences A petition with nearly one million signatures was put

forth to reconsider his case it was rejected On the same day a 17 year old boy was publicly

hanged in Iran for killing a popular athlete his justification based on self-defense was ignored

Also on the same day a Pakistani national was executed in China on grounds of drug trafficking

an offence that does not often result in capital punishment The need for the resolution of this

issue is pressing and the committee needs to deal with all aspects of the problem in a

comprehensive and enduring manner104

Capital Punishment

In 2010 23 countries implemented capital punishment A total of 527 executions (plus the 1000+

carried out in China alone) were known to have taken place with Iran Yemen USA and North

Korea meting out a significant number of sentences105

The figure is lower than the records

computed for years past There are more states which are now abolitionist either in law or in

practice with regard to the imposition of the punishment Gabon was officially the last country

to rescind the practice while bills calling for an end to capital punishment have been presented

to parliaments in Lebanon Mali Mongolia and South Korea106

Renewed efforts are

104

httpwwwamnestyorgennews-and-updatesus-executes-death-row-prisoner-troy-davis-2011-09-21 105

httpwwwguardiancouknewsdatablog2011mar29death-penalty-countries-world 106

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010

UNHRC 29 of 44

simultaneously being made on the international front to implement laws against capital

punishment A third resolution establishing a moratorium on the use of death penalty passed the

UN General Assembly on December 21 2010107

Despite the increasing momentum towards an eventual elimination of the practice the number of

executions taking place annually is a cause of major concern Advocates of the death penalty

assert that the practice is an effective means of deterring crime in society Public executions are

often held in Iran Afghanistan and Palestine for example to demonstrate the fate awaiting

those who commit similar crimes108

Arguments are made on the grounds of justice that it is

proper and fair to take an eye for an eye and a life for a life and that some individuals deserve

it for the crimes they commit

Those opposing the practice question the morality of an action sanctioned by the state which

endorses deprivation of the right to life a fundamental human right under the Universal

Declaration of Human Rights109

There are inescapable flaws within legal systems which are

aggravated by discrimination prosecutorial misconduct and inadequate legal representation

Moreover the risk of executing the innocent can never be eliminated110

An alternative is

presented in the form of imprisonment for life without parole which results in a parallel debate

is imprisonment for life a viable surrogate to the practice of death penalty A thread from this

debate also relates to the economic feasibility of carrying out a death sentence as opposed to the

feasibility of imprisonment for life

Deterrence

Capital punishment is often propagated as an adequate approach in the deterrence and prevention

of crime The logic is that if murderers are sentenced to death potential murderers will think

twice before killing for fear of losing their own life The deterrence theory presumes that the

once the punishment for a certain crime is established the criminal by committing the crime

voluntarily assumes the risk of receiving the prescribed punishment for the crime Only when the

most severe punishment has been set will there be a possibility of an individual evaluating their

actions in light of the consequences111

107

httpwwwundemocracycomA-RES-62-149pdf 108

httpwwwamnestyorgennews-and-updatessharp-rise-public-executions-iran-executes-first-juvenile-

offenders-2011-2011-04-27 109

wwwunorgendocumentsudhr 110

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 111

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 30 of 44

The death penalty it is asserted ensures that convicted criminals do not offend again moreover

it is deemed to be a just penalty for atrocious crimes It is further alleged that many criminals

who are set free even after lengthy sentences regress and go on to commit heinous crimes

Therefore there should never be the possibility of a release clause112

The deterrence theory is modeled on the grounds of human psychology logic and rationale As a

professor of jurisprudence Ernest van den Haag PhD wrote ―Common sense lately bolstered

by statistics tells us that the death penalty will deter murder if anything can People fear nothing

more than death Therefore nothing will deter a criminal more than the fear of death These

statements were further validated by a US Supreme Court Justice who said on record that

Prima facie the penalty of death is likely to have a stronger effect as a deterrent to normal

human beings than any other form of punishmentlsquo113

Numerous studies have been conducted on

the subject with varying results One of the most established studies was conducted in USA

using a panel data set of over 3000 counties from 1977 to 1996 which concluded that on

average one death sentence resulted in 18 fewer murders114

Delegates will be expected to be

familiar with other similar studies

These studies are commonly refuted as not crediblelsquo by opponents of the capital punishment

who also deny the correlation between crime and death penalty as a fabricated relationship which

cannot be empirically established115116

A study of the relationship between capital punishment

and the incidence of murder was conducted for the UN in 1988 and updated in 2002 The

conclusion was ―The investigation has not provided scientific proof that executions have more

deterrent effect than life imprisonment It is unlikely that such evidence will ever come

Deterrence hypothesis finds no support in the survey117

Another counter-argument asserts that crime is still a persistent feature of the societies that

continue to award the death penalty while many of the abolitionist states enjoy low crime rates

This can be evidenced by comparing the crime rate in USA or Pakistan with that of Canada or

some European state In Canada for example the homicide rate per 100000 fell from a peak of

309 in 1975 the year before the abolition of the death penalty for murder to 241 in 1980 and

in 2003 27 years after abolition the homicide rate was 173 per 100000 44 per cent lower than

in 1975118

112

httpwwwdeathpenaltyinfoorgfacts-about-deterrence-and-death-penalty 113

httpdeathpenaltyproconorgviewresourcephpresourceID=002000 114

httpdeathpenaltyproconorgsourcefilesThe20Deterrent20Effect20of20Capital20Punishmentpdf ndash

Delegates should carefully examine certain parts of this document to establish the credibility of the assertions made

They should also invest in trying to locate studies that refute the assertions made in this and similar studies 115

httpwwwdeathpenaltyinfoorglaw-enforcement-views-deterrencelawenforcement 116

httpwwwdeathpenaltyinfoorgDonohueDeterpdf 117

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 118

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml

UNHRC 31 of 44

The lack of evidence on the production of a unique deterrent effect points to the danger of

relying on the deterrence hypothesis as a basis for public policy on the death penalty

Retribution amp Morality

An important terminology that delegates need to familiarize themselves with is that of

―retributivism119

It is defined as ―a policy of criminal justice that sponsors the punishment of

criminals in retribution for the harm they have inflicted120

Criminals deserve to be punished in

proportion to the gravity of their crime regardless of whether the victim or anyone else desires

it we may all deeply regret having to carry out the punishment but consider it warrantedlsquo is

what many say in defense of the theory121

The need for the establishment of a visibly just state arises from the potential risks of not having

one As has been visible in many developing countries with shaky legal systems when criminals

are not adequately punished for their unlawful behavior the public takes the law into its own

hands and deals out vigilante justice It is asserted that retributivism is essential for a functioning

society where individuals respect the supremacy of law

The concept of retribution in society is also grounded in religious beliefs The concept of an eye

for an eye has been a part of all three Abrahamic traditions However in the modern world it is

Islamic nations that still retain the practice based on these grounds Similar traditions can be

found in Hinduism Christianity and Buddhism as well as other religions in different parts of the

world In many non-secular countries the constitutions and state laws are derived from religious

doctrines

Opponents dismiss this aspect of the argument as being emotionally charged with little rational

logic to support the contention They claim that the establishment of capital punishment gives

birth to a culture of violence endorsed by the state It perpetuates the cycle of aggression and

brutality something which the state should be actively inhibiting not endorsing

Wrongful Convictions

The death penalty carries with it the danger of wrongfully convicting an innocent person for

crimes he did not commit There is the potential for capital punishment to evolve into sheer

miscarriage of justice as in certain circumstances states are often seen to rush the trials and

convict the accused hastily This practice takes foremost apparently in military courts often in

119

Cavadino M amp Dignan J (1997) The Penal System An Introduction (2nd ed) p 39 London Sage 120

httpdictionaryreferencecombrowseretributivism 121

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 32 of 44

the developing or lesser-developed countries where the system of law is not properly established

It is not however exclusive to these countries Examples can be drawn from countries like

Philippines Thailand Iran and Palestine to name just a few where executions are carried out at

alarming pace removing the possibility of reviews

On 15 August 2004 Atefah Rajabi Sahaaleh was hanged in a public square in the Iranian city of

Neka Her death sentence was imposed for adultery and crimes against chastity122123

Atefah

was executed a week after the trial was run Following the execution the Judge for the case was

arrested for investigation by the Intelligence Ministry The media reported that in addition to the

confession of his rape of Atefeh Judge Rezai who served as judge jury and executioner also

confessed to torturing her during interrogations to extract names of others she had relations with

No transcripts from court proceedings were recorded The State alleged that Atefah was 22 at the

time of her execution A witness later claimed The judge just looked at her body because of

the developed physique and declared her as 22124

ndash her birth certificate revealed she was born

in 1988 Furthermore Atefah did not have access to a proper defense where she could contest

charges leveled against her This is one example of many such cases of miscarriage of justice

Something that recurs in these cases is the failure of the police or prosecuting authorities to

prevent the use of unreliable witnesses the misuse of evidence or confessions and the provision

of inadequate defense representation The advent of DNA profiling and the use of it as positive

evidence in criminal cases has resulted in the exoneration of multiple death row inmates on

grounds of forensic evidence or lack thereof Since 1973 138 people have been released from

death row in the United States after it was proven that they were innocent125

In 2009 Paul

House was cleared of murder and exonerated in Tennessee USA after having served 22 years

on death row His innocence was proclaimed in light of substantial additional DNA testing and

further investigationlsquo 126

Amnesty International has noted examples of wrongful convictions from elsewhere as well

including Jamaica Japan China Nigeria and Tanzania127

Paul G Cassell a former law clerk to

the Chief Justice of USA stated the mistaken release of guilty murderers should be of far greater

concern than the speculative and heretofore nonexistent risk of the mistaken execution of an

innocent personlsquo highlighting the case made by those who advocate the death penalty even in

light of wrongful convictions128

122

httpwwwcosmolearningcomdocumentariesexecution-of-a-teenage-girl1 123

httpnewsbbccouk2hi5217424stm 124

httpnewsbbccouk2hi5217424stm 125

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 126

httparticlescnncom2009-05-13justicetennesseeexonerated_1_death-row-inmate-dna-evidence-house-

arrest_s=PMCRIME 127

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 128

httpdeathpenaltycurriculumorgstudentcaboutargumentstestimony3bhtm

UNHRC 33 of 44

Alternative to Death Penalty

All abolitionist states have reverted to the practice of sentencing criminals to life imprisonment

(some without parole) which is also termed as death by incarceration Widely regarded as a more

humane course of action life imprisonment is also alleged to be a more economical practice

While ensuring public safety by keeping criminals away from society this system also saves the

lives of innocent people who have been falsely or wrongfully convicted The setup inhibits and

curbs the cycle of violence while retaining the deterrence factor it is strongly asserted

Advocates for the death penalty are averse towards life imprisonment for a number of reasons

They cite the unreliability of the system as one of the flaws which impedes the possibility of

such a sentence being successful A certain James Moore serves as a valid example in this case

In 1962 James Moore raped and strangled 14-year-old Pamela Moss The victimlsquos parents opted

out of capital punishment for Moore and he was instead sentenced to life in prison without

parole Twenty years later a change in sentencing laws in 1982 renders James Moore eligible for

parole every two years129130

Kenneth McDuff is another example McDuff was convicted and sentenced to life imprisonment

Years later due to the issue of overcrowding in prisons McDuff was released following which

he killed eight more people McDufflsquos example is of an individual from a developed country

with an established legal system in place131

Overcrowding is a feature of prisons in developing

or lesser developed countries In many such states criminals have also been known to easily

break out from penitentiaries

The economic aspect of the debate is murky at best There is a lack of empirical data on the

subject which is why the arguments of both these sides cannot be settled beyond doubt

Advocates of capital punishment insist that the overall costs of the practice are far lesser than the

costs of housing an inmate for a lifetime132

They also suggest that the life imprisonment allows

criminals to conceive new habeas corpus petitions which on legal grounds cannot be rejected

automatically resulting in more trials

On the other hand substantial arguments are made which stress that the cost of legal proceedings

in capital cases is in truth more than that of other cases States and nations spend a significant

portion of the taxpayerlsquos money in meting out such punishments133

Delegates when addressing

this portion of the debate will need to be aware of the financial aspects of the issue as it forms

for many states an important part of whether capital punishment should be revoked or

not

129

httpwesleylowecomcphtmldeter 130

httpwwwnytimescomkeywordparole 131

httpwesleylowecomcphtmldeter 132

Ibid ndash view section titled Capital Punishment and its costslsquo 133

httpwwwamnestyusaorgour-workissuesdeath-penaltyus-death-penalty-factsdeath-penalty-cost

UNHRC 34 of 44

Imposition of Death Penalty on Juveniles

The prohibition on the death penalty for crimes committed by juvenile offendersmdashpersons under

age 18 at the time of the offensemdashis well established in international law specifically in the

Convention on the Rights of Child

ldquoNo child shall be subjected to torture or other cruel inhuman or degrading treatment or

punishment Neither capital punishment nor life imprisonment without possibility of release shall

be imposed for offences committed by persons below eighteen years of agerdquo134

- Article 37(a) Convention on the Rights of Child

ldquoSentence of death shall not be imposed for crimes committed by persons below eighteen years

of age and shall not be carried out on pregnant womenrdquo135

- Article 6(5) International Covenant on Civil and Political Rights

The treaties are a unanimously agreed set of non-negotiable standards and obligations By

acceding to the treaties and ratifying them governments commit to protecting and ensuring

childrens rights and to holding themselves accountable for this commitment before the

international community

Even though the practice of capital punishment on juveniles is relatively rare however in clear

contravention of international law nine countries have executed offenders who were juveniles at

the time of their crimes between 1990 and 2005136

These countries include the Peoples Republic

of China (PRC) the Democratic Republic of the Congo Iran Nigeria Pakistan Saudi Arabia

Sudan the United States and Yemen137

The USA has since moved to implement a ban on capital

punishment for juveniles However in most other countries of the preceding list the practice is

still enshrined in the judicial system Iranlsquos record in particular has been abominable over the last

decade It has carried out 39 executions of persons under the age of 18 since 2005 Presently

over a hundred individuals are placed on death row for crimes committed as juveniles The

executions of Mahmoud Asgari Ayaz Marhoni and Makwan Moloudzadeh became international

symbols of Irans child capital punishment and the judicial system that hands down such

134

httpwww2ohchrorgenglishlawcrchtm 135

httpwww2ohchrorgenglishlawccprhtm 136

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf - This document by the Human Rights Watch

called The Last Holdoutslsquo is a good summary of juvenile executions and should be reviewed 137

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 - Contains a list with

statistics and details of countries which have allowed the imposition of death sentence to juveniles

UNHRC 35 of 44

sentences138139140

Saudi Arabia and China too have questionable records that need to be

scrutinized further

While regional treaties and charters usually substantiate international law the Arab Human

Rights Charter of 2004 is unique among regional and international treaties in that the ban on the

juvenile death penalty in it is not absolute but merely optional141

Furthermore national laws in states that observe such a practice are in violation of

international legally-binding charters In Iran and Saudi Arabia laws usually treat a child the

same way as an adult criminal offender would be treated Article 10(3) of the International

Covenant on Civil and Political Rights emphasizes the need for demarcation between the

handling of children and that of adults in stating ―Juvenile offenders shall be segregated from

adults and be accorded treatment appropriate to their age and legal status142

The definition of a child in these Muslim states is unclear as adulthood is associated with

attainment of puberty which is a relative concept The Committee on the Rights of the Child in

January 2005 censured the Saudi government for its practice of imposing the death penalty on

juveniles terming it a serious violation of the fundamental rights The committee was deeply

alarmed over the discretionary power judges hold to treat juveniles as adults as was stated in

the committeelsquos report Iran too was strongly condemned following the release of an

international report highlighting the dire situation in Iran by the International for Human Rights 143

138

httpwwwfoxnewscomstory0293329798200html 139

httpnewsbbccouk2himiddle_east7130380stm 140

httpenwikipediaorgwikiCapital_punishmentIran 141

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 142

httpwww2ohchrorgenglishlawccprhtm 143

httpwwwfidhorgIMGpdfRapport_Iran_finalpdf

UNHRC 36 of 44

On August 19 2008 Iranian authorities executed Seyyed Reza Hejazi at Isfahan Central Prison

for his role in a murder committed in 2003 when he was 15 Hejazi was tried as an adult by

Branch 106 of the Isfahan General Court even if he did not qualify as one under international

stipulations and sentenced to death on November 14 2005144

In Saudi Arabia Mu`id bin

Husayn bin Abu al-Qasim bin `Ali Hakami was executed on July 10 2007 for a murder he

allegedly committed three years earlier when he was 13 years old145

The judges in these states

because of the implementation of the Sharialsquo law have a large amount of discretion with regard

to their rulings This discretion is often abused in the interrogation and judicial proceedings In

Pakistan authorities hanged Mutaber Khan in Peshawar Central Prison on June 13 2006 on

charges of murder of five people The fact that he was held in the juvenile wing of Peshawar

Central prison and the evidence presented by the accused confirming that his age was below 18

at the time of the killings were not taken into account during the trials and Mutaber was charged

as an adult in the case146

While the above does not cover exhaustively the practice of capitally punishing juveniles the

committee is expected to be well read on the matter The committee will be required to devise

ways to strictly apply the existing international law on the subject to curtail further deaths of

juveniles by states A series of recommendations on better implementation of international

covenants will be expected from the committee Delegates at UNHRC will also have to

familiarize themselves with the stipulations in the national laws of countries practicing juvenile

death penalties (Iran Saudi Arabia Pakistan Nigeria Sudan Yemen and UAE among others) to

discuss how these states are constitutionally able to bend international law and mete out the

illegal punishments

144

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 145

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 146

See FIDH and Human Rights Commission of Pakistan ―Slow march to the gallows and ―Condemned Prisoner

Executed Dawn Newspaper Karachi June 14 2005 httpwwwdawncom20060614nat16htm

UNHRC 37 of 44

Universality of Laws Incurring the Death Penalty

In countries which have not abolished the death penalty capital punishment may be imposed

only for the most serious crimes it being understood that their scope should not go beyond

intentional crimes with lethal or other extremely grave consequences

- Safeguards guaranteeing protection of the rights of those facing the death penalty147

Laws incurring the death penalty or capital crimes have certain uniformity the world over This

is of course barring states that are religiously affiliated and whose law systems are not secular

in nature The list of capital crimes for those states with non-secular legal systems is slightly

different The Human Rights Commission had decided that the imposition in the State party of

the death penalty for offences which cannot be characterized as the most serious including

apostasy committing a third homosexual act illicit sex embezzlement by officials and theft by

force are incompatible with Article 6 of the Covenant Economic offences including

embezzlement drug related offences political offences and robbery were also referred to148

The reason why looking into capital crimes and trying to garner a global impression of them is

important is that the death penalty can only realistically be abolished in a piecemeal way This

process will entail shortening the list of capital crimes The UN formally notes that ―in order

fully to guarantee the right to life provided for in article 3 of the Universal Declaration of

Human Rights the main objective to be pursued is that of progressively restricting the number of

offences for which capital punishment may be imposed with a view to the desirability of

abolishing this punishment in all countries149

The first established death penalty laws date as far back as the Eighteenth Century BC in the

Code of King Hammaurabi of Babylon which codified the death penalty for 25 different crimes

By the 1700s 222 crimes were punishable by death in Britain including stealing cutting down a

tree and robbing a rabbit warren In the 19th

century the death penalty was eliminated for over

100 of the 222 crimes punishable by death 150

In modern times the UN Special Rapporteur on

extrajudicial summary or arbitrary executions has stated that the death penalty should be

eliminated for economic crimes and drug-related offences and that the restrictions to its use

―exclude the possibility of death sentences for so-called victimless offences ndash including acts of

treason espionage and other vaguely defined acts usually described as crimes against the Statelsquo

or disloyaltylsquo and ―actions primarily related to prevailing moral values such as adultery and

prostitution as well as matters of sexual orientation151

147

httpwww2ohchrorgenglishlawpdfprotectionpdf 148

httpwwwunhchrchtbsdocnsf0bc310a747155dff88025655300537faeOpendocument 149

General Assembly resolution 2857 httpwwwunodcorgpdfcompendiumcompendium_2006_part_01_05pdf 150

httpdeathpenaltycurriculumorgstudentcabouthistoryhistoryPDF 151

httpswwwabofimedia24259report10pdf

UNHRC 38 of 44

Contrary to the made recommendations even political dissent warrants a death sentence in

several countries most notably in China and Iran In 2010 nearly 20 Kurdish people were

executed for political offences in Iran The country is known for keeping dissent especially from

the Kurds suppressed Most are executed on the grounds of moharebeh or enmity against God

Moreover challenging the power of the Ayatollah is also punishable by death These charges are

neither explicit nor in line with international guidelines over what crimes are punishable

capitally In Iran judges must handle such cases carefully as Iranian law provides for only one

punishment if an individual is found to be guilty of treason Libya too thwarts political dissent

with firm laws in place for punishing by death those who illegally form groups organizations or

associations against the state152

Saudi Arabia too is worth note for its vaguely phrased laws governing capital punishment

Intentional murder and crimes that spread ―mischief in the land (Fasad fil-ardh) merit death In

2010 the government announced that it had executed 26 people all by beheading Crimes that

―spread mischief include witchcraft and sorcery153

How is one convicted of witchcraft in the

21st century What can the international community do when regarding countries such as these

Treason arguably along with murder is the capital crime that has yet to be phased out by many

countries In some such as Brazil treason during warfare is the only crime for which a person

can be sentenced to death In the Gaza Strip under Hamas any sort of cooperation with Israeli

forces during military actions is also punishable by death In others including Algeria Bahrain

Iran and Malaysia treason is punishable by death in all circumstances The United States too has

federal laws governing treason under which traitors ―shall suffer death154

Child sex abuse is another crime that is widely held to merit the death penalty In Russia for

example according to the Russian Public Opinion Research Center an overwhelming majority

consider the death penalty to be an acceptable punishment especially in relation to molestation

155 In 2009 however Russias Constitutional Court effectively abolished the death penalty by

extending indefinitely a 13-year-old moratorium on capital punishment156

Indonesia has some of the strictest penalties for drug related crimes in the world Roughly half of

those on death row are incriminated with drug-related charges157

In 2008 though the most high

profile executions were of terrorists Three of those found responsible for the 2002 Bali

bombings were executed by shooting158

Generally speaking however a significant proportion of

152

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 153

httpwwwstategovgdrlrlshrrpt2010nea154472htm 154

httpdeathpenaltyproconorgviewresourcephpresourceID=1172 155

httpenrianrutrenddeath_penalty 156

httpwwwreuterscomarticle20091119idUSLJ330478 157

httpwwwnytimescom20080711worldasia11iht-indo114421132html 158

httpnewsbbccouk2hiasia-pacific7718246stm

UNHRC 39 of 44

the executions or death sentences recorded (in 2010) in China Egypt Indonesia Iran Laos

Libya Thailand United Arab Emirates and Yemen were for drug-related offences In December

2010 the amended Anti-Narcotics law came into force in Iran extending the scope of the death

penalty to include additional categories of illegal drugs (for example crystal meth) possession

of which became punishable by death Also around the same time the National Assembly of

Gambia voted to extend the scope of the death penalty by making the possession of more than

250g of heroin or cocaine an offence punishable by death159

Several states allow for the death penalty for crimes of blasphemy and other crimes for

nonviolent expression and association In Pakistan Aasia Bibi a Christian mother of five was

charged with blasphemy and sentenced to death after a trial largely believed to be unfair on 8

November 2010 She is currently on death row The country is also noted for its laws concerning

capital crimes The list includes 27 crimes most of which go beyond the notion of ―most serious

crimes as recommended by the International Covenant on Civil and Political Rights Extra-

marital sex and blasphemy are examples of some capital crimes in the country In December

2007 Pakistan voted against a United Nation General Assembly resolution for a moratorium on

the death penalty The year before however the nation amended its law on rape and adultery

charges which are no longer punishable by death160

As far back as 1989 recommendations have been made as to how to abolish the death penalty

Member states (of the UN) have been urged ―to publish for each category of offence for which

the death penalty is authorized and if possible on an annual basis information about the use of

the death penalty including the number of persons sentenced to death the number of executions

actually carried out the number of persons under sentence of death the number of death

sentences reversed or commuted on appeal and the number of instances in which clemency has

been granted and to include information on the extent to which the safeguards referred to above

are incorporated in national law161

The committee must inspect how far this recommendation

has been adopted and should seek to rectify the weaknesses in the system of gradually

abolishing the death penalty Can a target year be designated by which crimes meriting the death

penalty could be made universal How can countries with non-secular legal systems be brought

into the fold of international law

159

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 160

httpwwwfiacatorgenIMGpdfdppakistan-enpdf 161

httpgraduateinstitutechfacultyclaphamhrdocdocsecosocresolutiondeathpen1989html

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 13: UNHRCFINAL

UNHRC 9 of 44

creating a massive imbalance This imbalance will lead to drastic results in the next few years an

implication the committee needs to take in account when establishing a framework for

responding to the issue

The Human Rights Council conducted a Universal Periodic Review of China in 200925

to much

international consternation and surprise the report lacked substantial evidence implicating

China and was instead found to be extremely vague The role of the United Nations in defining

and drawing attention to the issue is of key significance and the Human Rights Council must

make recommendations on how the United Nations can enhance its capacity in laying the

foundations for the case The Council can also make recommendations regarding the changes

that can be brought about in the conduct of the Review and otherwise in order to be able to

contain the issue with lesser difficulty

The committee will be called upon to review reproductive rights in detail including the implicit

and explicit consequences on the people of China Access to reproductive healthcare is a

problem the world over and is often consciously violated by states Is there a way to control

these violations perhaps through devising enhanced monitoring strategies

The Case of Internet Censorship in China and the Right to Free Speech

Everyone has the right to freedom of opinion and expression this right includes freedom to hold

opinions without interference and to seek receive and impart information and ideas through any

media and regardless of frontiers26

- Article 19 Universal Declaration of Human Rights

Everyone shall have the right to freedom of expression this right shall include freedom to seek

receive and impart information and ideas of all kinds regardless of frontiers either orally in

writing or in print in the form of art or through any other media of his choice 27

- Article 19 (2) International Covenant on Civil and

Political Rights

The Peoplelsquos Republic of China along with being the most populous region of the world is also

home to the worldlsquos largest collection of internet users According to Xinhua Chinalsquos state-run

English news agency Chinalsquos internet user ship exceeded 500 million users as of September

201128

China is also the worldlsquos largest media market However despite these impressive

statistics it is both interesting and disturbing to note that the Republic is also remarkable for its

25

httplibohchrorgHRBodiesUPRDocumentsSession4CNA_HRC_WG6_4_CHN_3_Epdf 26

httpwwwohchrorgENUDHRDocumentsUDHR_Translationsengpdf The Universal Declaration of Human

Rights 27

httpwww2ohchrorgenglishlawpdfccprpdf The International Covenant on Civil and Political Rights 28

httpnewsxinhuanetcomenglish2010china2011-0929c_131167919htm

UNHRC 10 of 44

censorship history About a dozen government bodies control internet usage including the

Ministry of Public Security29

It has been noted that while the Chinese advertising industry is

booming this freedom does not extend to editorial content of newspapers30

This phenomenon of

Chinese censorship has been labeled in the mainstream global media as the Great Firewall of

China The Firewall serves to filter both the information coming into China as well as

information generated within the nation It is beyond being a clever pun a matter of concern for

the committee because of its repressive characteristic The State imposes such extreme

restrictions of freedom of information under the premise of protection of its nationalistic

interests However its negative connotation is much obvious and its resemblance to Orwelllsquos

Ministry of Truth and the notion of thought control is uncanny The Peoplelsquos Republic has signed

(not ratified) the International Covenant on Civil and Political Rights The committee can look

into the reasons behind this as well as assess current global membership to the covenant

Chinalsquos Internet censorship is centered on the control of political thought The Measures on the

Administration of Internet Information Services and the Provisions on the Administration of

Internet News and Information Services are the two main instruments used to do so31

Section 19

of the latter deserves special attention and casts its scope to prohibit activities that disrupt

―national policies on religion propagating evil cults and feudal superstitions jeopardize ―the

security of the nation harm ―integrity of the nationlsquos unity or ―the honor or the interests of the

nation among other things32

Regulations are so stringent that in 2008 only eight websites out

of a total of 430000 in Guangdong Province ndash Chinalsquos most populous region -- were able to

obtain news publication qualifications permits33

The Internet news and information services entities engaging in Internet news and information

services shall abide by the Constitution laws and regulations by persisting in providing service

for the people and serving socialism and guiding public opinion to protect the interests of the

nation and the public

- Article 3 Provisions on the Administration of Internet News and Information Services

The national report submitted by China to the Working Group for the Universal Periodic Review

in 2009 exhibited the governmentlsquos opinion that ―with such easy fast and diverse ways of

gaining access to information and expressing opinion including criticism of the Government

Chinese citizens are enjoying an entirely new lifestyle34

According to a white paper published

29

httpwwwhrworgreports2006china08063htm_ftnref28 30

httpnewsbbccouk2hiafricacountry_profiles1287798stm 31

httpwwwhrichinaorgcrfarticle3244 32

httpwwwchinaitlaworgp1=printampp2=051006175116 Provisions on the Administration of Internet News and

Information Services

Please peruse the following httpwwwhrworgreports2006china08063htm for commentary on the Provisions 33

Ibid 34

httplibohchrorgHRBodiesUPRDocumentsSession4CNA_HRC_WG6_4_CHN_1_Epdf

UNHRC 11 of 44

in 2008 by the Information Office of the State Council the internet is a ―crystallization of human

wisdom and ―Chinese citizens fully enjoy freedom of speech on the internet 35

Chinalsquos policies have relevance beyond

their contravention of what may seem to be

abstract principles China has jailed the

largest number of internet dissidents the

world over The case of Liu Shaokun for

example is a notable one He was a

teacher in Sichuan province which had

been hit in 2008 by a ravaging earthquake

around the time of the Summer Olympics

in Beijing China had been praised for

allowing reporters to openly cover the

earthquake Much of this openness however was part of a bid to soothe the international

community and project Beijinglsquos image as being the perfect venue for the Olympics Shaokun

however was sentenced to a year of labor for posting photographs of schools affected by the

earthquake He is among countless others who have been silenced36

When the Arab Spring flowered over the Middle East China cracked down on many social

networking sites to curb pro-democracy sentiments Amongst these was LinkedIn blocked over

the fact that one of its users had mentioned the possibility of a ―Jasmine Revolution in China37

The government blocks discussions about the Dalai Lama the Tiananmen Square protests and

the Falun Gong spiritual movement among other things In April of 2007 the Chinese version of

MySpace launched but lacked discussion forums centered on the aforementioned topics among

others including Taiwanlsquos independence In 2010 Google considered withdrawing its services

from China after a spur of cyber-attacks on email accounts of human rights activists 38

Google

and the government reached a deal whereby Google operated by Chinese guidelines within

mainland China However Google has a non-censored operation running in Hong Kong to

which it started routing customers in 2010 when it had concerns over Google accounts being

hacked by authorities It is testament to Chinese control that companies such as Google are

forced to enter the internet market on its terms Other instances of well renowned internet

websites being blocked or affronted include Twitter being banned during the 20th

anniversary of

the Tiananmen killings

The Committee to Protect Journalists ranks China as one of the worst internet censors The

Chinese government has been alleged of carrying out ―spear-phishing whereby spying software

disguised as legitimate emails is installed on computers that belong invariably to journalists

35

httpchinaorgcngovernmentwhitepapernode_7093508htm 36

httpcpjorgreports201012cpj-journalist-prison-census-iran-china-highest-14-yearsphp 37

httpwwwbbccouknewstechnology-12586462 38

httpnewsbbccouk2hi8460129stm Please look at this link for a timeline of Chinalsquos internet history

UNHRC 12 of 44

Victims included those writing about Liu Xiaobo the imprisoned human rights defender who

received the Nobel Peace Prize in 201039

According to statistics over 80 of Chinas netizens rely mainly on the Internet for news 40

With this state of affairs and increasing dependence the world over on the internet as a major

source of information discussing information monopolies is crucial To isolate a country of over

a billion and deny it access to information in the age of technology may not seem a palpable

physical or otherwise contravention of human rights however its consequences are

tremendous While one may think that media censorship is restricted to dictatorial regimes the

case of China serves to refute that line of thought Media censorship is prevalent even in

countries as varied as Indonesia India Mexico and Russia ndash all of whom rank relatively low on

the Press Freedom Index41

Looking at instances worldwide and the justifications given for

restricting rights will be a useful direction to take while researching

The following website is a useful tool to check the status of websites in China

httpwwwgreatfirewallofchinaorg

Political Prisoners in China and Illegal Detention

Political prisoners are those whose imprisonment is carried out arbitrarily on contestable and

controversial grounds Governments detain certain individuals on the basis of allegedly valid

grounds which are not always disclosed or declared Many detainees charge existence of ulterior

motives or extrajudicial reasons on part of the state for their detention The phenomenon of

political prisoners is often associated with closed regimes such as Burma and the DPRK

However the Peoplelsquos Republic of China too does not escape scrutiny when the topic of political

prisoners is at hand The phenomenon of political prisoners resonates so loudly in the

international spheres particularly because governments deny the existence of political prisoners

they claim that all detainees are lawfully held under criminal law The unfair detainment of

persons or the capture of people to serve the interests of a government contravenes many human

rights including freedom of expression association and assembly Indeed a countrylsquos political

imprisonment record is one of the crucial indicators of its human rights situation

Amnesty International views political prisoners as prisoners of conscience These are more

specifically ―people who have been jailed because of their political religious or other

conscientiously-held beliefs ethnic origin sex color language national or social origin

economic status birth sexual orientation or other status42

39

httpwwwcpjorgreports201105the-10-tools-of-online-oppressorsphp 40

httpchinaorgcngovernmentwhitepapernode_7093508htm 41

httpenrsforgpress-freedom-index-20101034html 42

httpwwwamnestyusaorgour-workissuesprisoners-and-people-at-riskprisoners-of-conscience

UNHRC 13 of 44

According to the (US) Congressional Executive Commission on China over 5000 cases of

politically or religiously motivated imprisonments have been made It has detailed documented

information on the status of 1452 of these prisoners and

notes that its information is far from complete and that the

true story of Chinalsquos political prisoners remains unknown 43

The plight of political prisoners in China is speculated upon

by various international organizations Among these is the

Human Rights Watch which has gone as far as labeling the

locations for holding political prisoners ―black jails and

―alleyways in hell Officially though the Chinese

government denies the existence of political prisoners Subsequent to Chinalsquos Universal Periodic

Review an outcome report was published which came under fire from various sides The Human

Rights Watch called the substance of the report to be ―manifestly so far removed from reality

that [it] would immediately discredit anybody that adopted them in a report 44

In the report of

the UNHRC Working Group subsequent to Chinalsquos UPR it is stated that the Chinese

government does not use ―state secrets to suppress human rights defenders 45

It is precisely this

situation that our simulation wishes to remedy discussion should be fact based

The ground realities are different In 2010 Chinese activist and human rights defender Mr Liu

Xiaobo was awarded the Nobel Peace Prize He was jailed by Chinese authorities for

distributing his ―Charter 08 a document that called for freedom of expression and of assembly

among other things The government incarcerated him for an 11 year time-period on the charge

of subversion Subsequent to the prize the Chinese government came down hard on other human

rights activists Indeed those celebrating the awarding of the prize to Mr Xiaobo were arrested

arbitrarily While distributing fliers celebrating the win many were imprisoned on the grounds of

―inciting subversion of state power The Report of the Special Rapporteur on the situation of

human rights defenders published in 2011 makes mention of these facts46

The Chinese

government labeled the award an ―obscenity It is vague allegations such as these that allow

governments to thwart dissidents As expected though according to the report of the HRC

Working Group No individual or press has been penalized for voicing their opinions or

views47

When discussing China and political prisoners it is important to mention the Falun Gong

movement It is a spiritual variant of Buddhism and originated in China on the basis of the

teachings of its founder Li Hongzhi The movement was supported within the Chinese

43

httpwwwceccgovpagesvictims20101010_PPD_AR10pdfPHPSESSID=705596c0e91f35e392e6f0ecbb78d6

7c 44

httpwwwhrworgennews20090610human-rights-watch-statement-upr-outcome-report-china 45

httpdaccess-dds-nyunorgdocUNDOCGENG0916299PDFG0916299pdfOpenElement 46

httpwww2ohchrorgenglishissuesdefendersdocsAHRC1644Add1_EFSonlypdf Page 63 47

httpdaccess-dds-nyunorgdocUNDOCGENG0916299PDFG0916299pdfOpenElement Para 71

UNHRC 14 of 44

officialdom initially However Falun Gonglsquos popularity within the masses as well as its

independence from the state and its spiritual teachings was soon perceived as a threat to the

government By the late 1990lsquos the Chinese government cracked down on the movement and

labeled it as a heretical organization Chinese legislation uses the expression ―Xiejiao zuzhi to

refer to a wide range of sectarian or unorthodox religious groups which do not meet official

approval The Falun Gong movement is included in this list48

The Falun Gong followers are the

worldlsquos largest group of prisoners of conscience The PRC often picks up practitioners and

accuses them of ―using an evil cult to destroy implementation of the law 49

China with its strict non-religious government did not take kindly to this new movement that

had garnered millions of followers both within China and internationally between 1992 and the

crackdown in 1999 Today Falun Gong is practiced freely in more than 70 countries around the

world with clubs and associations existing in a range of settings50

Beginning at the turn of the

millennium the authorities started to ban access to websites that contained material about the

movement Indeed a search on the movement on Chinalsquos Xinhua News Agency website will

even today yield nothing (It may be an interesting experiment for delegates to conduct) Those

who reported the initial crackdown were ―followed detained interrogated and threatened

according to a letter written in 1999 by The Foreign Correspondents Club (FCC) of China51

The Falun Gong movementlsquos official website deals with its persecution thus The complex

rationale behind the persecution can be broken into four elements a paranoid dictators fear of

Falun Gongs meteoric growth and soaring popularity that same dictators intense jealousy of

Falun Dafas popularity the inherent conflict between the communist regimes savage political

ideology and its polar oppositemdashFalun Dafas principles of Truthfulness Benevolence

Forbearance and the very nature of communism which to sustain itself requires periodically

labeling a small segment of the population as the class enemy to struggle against52

The Chinese crackdown on Falun Gong practitioners involved a ban on practicing it by the

Chinese Communist Party whose members as aforementioned were interestingly initially

adherents to the movement in significant numbers Indeed the party was divided from within

over their stance on the movement The government formulated an ―anti-cult law a few months

after issuing a warrant for the founderlsquos arrest ―During the first two years of the crackdown

between 150 and 450 group leaders and other members were tried for various crimes and

sentenced to prison terms of up to 18-20 years53

To this day ―central leaders turn a blind eye to

48

httpwwwamnestyorgenlibraryassetASA170112000en7a361a8e-df70-11dd-acaa-

7d9091d4638fasa170112000enhtml 49

httpwww2ohchrorgenglishissuesdefendersdocsAHRC1644Add1_EFSonlypdf 50

httpwwwfaluninfonettopic22 51

httpwwwamnestyorgenlibraryassetASA170112000en7a361a8e-df70-11dd-acaa-

7d9091d4638fasa170112000enhtml 52

httpwwwfalundafaorgengfaqshtmlpersecution 53

httpfpcstategovdocumentsorganization67820pdf Page 4

UNHRC 15 of 44

local methods of suppression against unrepentant practitioners including the reported use of

torture54

Also worth noting is the fact that Chinalsquos judicial system has been alleged to be anything but

conducive to providing justice to those using the system Indeed it is a repressive tool used by

the government to silence dissent China with its vast land mass and various provinces and

municipalities must work hard to keep its Centre strong Scores of individuals who are more

obscure than human rights activists and such are imprisoned by the government while ironically

seeking justice It has long been the custom for people of the countryside to seek justice in

Beijing if they felt that their local authorities had treated them unfairly However modern China

has not taken kindly to this tradition Local authorities are evaluated on the basis of the number

of complaints the Centre receives about them Thus they have a vested interest in thwarting the

reports of any complaints about them to Beijing Those who complain are whisked off to black

jails where ―detainees are denied access to legal counsel and in most cases contact with family

and friends They ―are kept under constant surveillance and subject to often arbitrary physical

and psychological abuse55

Chinalsquos record with regard to political prisoners and its tradition of suppressing dissent are

exacerbated by the sheer scale on which dissent is thwarted The aspect of potential torture of

prisoners further complicates the issue It is troubling that the issue of Chinese political prisoners

only gained international prominence with the case of Mr Liu Xiaobo It is not the only nation in

the world to adopt such strict policies in order to further its own ideology and the committee will

do well to ruminate upon how this tradition can be discontinued so as to allow people their

essential political freedoms

The Infringement of Rights in the Conflict with Tibet

Despite the furor that has been inconsistently directed towards its human rights record China

continues to impose tightening restrictions on rights of expression association and assembly

The Chinese government carries on devising social and economic changes that retain its firm

authority over its citizens which in turn enables a host of human rights violations In the context

of Tibet China has failed to address the grievances of the people there who have been made

victims of social discrimination and have unequal access to opportunities Scores of Tibetans are

marginalized and detained for their religious inclinations which are further suppressed by the

imposition of intense patriotic educationlsquo campaigns whereby socialism is furthered and all sorts

of religious or individualistic tendencies are thwarted

54

Ibid Page 5 55

httpwwwhrworgreports20091112alleyway-hell-0 Page 4

UNHRC 16 of 44

Despite its totalitarian approach China refuses to accept responsibility for the issue Instead it

blames westernlsquo forces for trying to instigate separatism56

The indifference on the part of

China with particular regard to Tibet is apparent with Chinese authoritieslsquo continuous rejection

of ―inconvenient requests by UN human rights experts for visits to the Tibet Autonomous

Region57

During 1912 and 1951 Tibet underwent a period of de facto independence58

While it was still

territorially a part of China it enjoyed relative freedom in its political discourse Tibetan

autonomy was confined within the context of Chinese suzerainty and should not be interpreted

as unrestrained political independence Since 1951 however the Chinese government has taken

steps to ensure its absolute and undeniable dominance over Tibet from which emanates the strife

under discussion Gross violations of human rights have taken place in China administered by

officials with the purpose of cultivating consent with regard to its control over the region

Suppression has led to the inevitable extensive discontent in Tibet a fury which was unleashed

in 2008 The Tibetan unrest of 2008 was a series of protests and demonstrations - not merely in

the Tibet Autonomous Region but elsewhere as well - that later transformed into rioting burning

looting and even killing59

The rioters set fire to state vehicles and clashed violently with the

police installed in the region The crackdown of Chinese authorities in response to the riots was

severe resulting in deaths on both sides and mass imprisonment by state authorities The degree

to which human rights were violated and abused during this crackdown cannot be overstated

The Chinese also revoked the freedom of sharing of information and imposed a ban on the entry

of media officials in the region to contain

information about the unrest and play down

protests60

A Tibetan Government in Exile has existed in India

since 1959 established by the 14th

Dalai Lama61

This Central Tibetan Administration considers the

issue as an illegitimate military occupation by the

Chinese state The Administration works with the

agendas of restoration of freedom in Tibet and rehabilitation of Tibetan refugees

Historical facts refute such a fallacy however The simple reality that the installation of the 14th Dalai Lama

needed the approval of the national government is sufficient proof that Tibet did not possess any independent power

during that period ndash (httpwwwchinaorgcne-whitetibet9-2htm)

56

httpwwwunhcrorgrefworldcountryAMNESTYCHN49b8dfc11a0html 57

Ibid 58

Grunfeld A Tom Reassessing Tibet Policy 2000 59

httpwwwnytimescom20080316worldasia16iht-tibet111134870html 60

Watts Jonathan Branigan Tania (March 18 2008) Tension rises as armed police mass in capital The

Guardian (London) Retrieved November 1 2011 61

httpwwwtibetnetenindexphpid=14

UNHRC 17 of 44

The censured freedom of expression is one of the multiple infringements on rights that are

imposed by China on Tibet Tibetans are denied the basic right to articulate their views through

political discourse Human rights activists advocate the freedom of speech for Tibetans under the

existing and future political arrangements Religious and political figures in Tibet are placed

under house arrest limiting their freedom of movement (in contradiction to article 13 of the

Universal Declaration of Human Rights)62

As was highlighted during the unrest in 2008 China

has often stripped the Tibetan population of its fundamental rights to associate and assemble In

2000 nine Tibetan prisoners in Kandze were charged for participating in a peaceful protest to

five-year prison terms in October 1999 (which were later increased to ten-year terms)63

This example leads us to another crop of abuse conducted overtly by Chinese authorities

arbitrary detention Article 9 of the Universal Declaration of Human Rights reads ―No one shall

be subjected to arbitrary arrest detention or exile64

Chinese law however permits authorities

to detain persons without formally arresting or charging them and persons may be sentenced

administratively to up to 3 years in reeducation-through-labor camps and other similar facilities

without a trial

Chinese authorities have been unresponsive to concerns expressed by the United Nations

Working Group on Arbitrary Detention No counter-explanation was given either over the case

of three Tibetans who had their sentences extended for staging a peaceful political protest during

the Working Groups visit to Drapchi in October 1997 despite international pressure65

Infinite

examples of arbitrary arrests and detentions exist in China international authorities have called

on China to cease this practice and release such detainees immediately absent evidence that they

have engaged in criminal acts No state can or should be able to hold anyone for engaging in

peaceful political activity All humans

should be granted internationally recognized

due-process protections which includes the

right to be informed of the charges leveled

against them66

The question of whether

these detainees are given an impartial trial if

one at all is not even raised

In addition to the arrests carried out in

violation of international law there are

grave evidences of abuses during detention

62

httpwwwhrworgnews20000612human-rights-violations-tibet 63

Ibid 64

httpwwwunorgendocumentsudhr 65

httpwwwhrworgnews20000612human-rights-violations-tibet 66

httpwwwhrworgnews20000612human-rights-violations-tibet

UNHRC 18 of 44

Incidences of beatings at time of arrest and torture (including the administration of electric

shocks and deprivation of food and medical treatment)67

during custody are widely reported

These are not isolated cases rather the product of a holistic policy of dealing with political

dissidents In one notable incident in May 1998 political prisoners in Drapchi staged major

protests to coincide with a visit from a European Union delegation The protests were non-

violent but the authorities reaction was severe several protestors were shot at and one monk

Lobsang Gelek subsequently died68

The Convention Against Torture (CAT ratified by China in 1988) requires the state to prevent

torture and punish those in violation of the law China has not amended its own laws to comply

with even the first article of CAT69

Such practices explicitly stand in contempt of Article 5 of

the Universal Declaration of Rights which censures the use of torture or cruel treatment as

punishment Dr Manfred Nowak the UN Special Rapporteur on Torture stated that ―he was

struck by the strictness of prison discipline and a palpable level of fear and self-censorship when

talking to detainees following his brief assessment of Chinese and Tibetan prisons in 200570

The committee will be looked upon to review ways in which the situation can be monitored more

carefully and what responses if any can be cultivated to impede similar future actions by

China

The continued violations of religious freedom and implementation of policies designed to

diminish religious practices by the State to serve its political needs is a cause of concern Again

referring to the Universal Declaration of Human Rights Article 18 reads ―Everyone has the right

to freedom ofhellipreligion this right includes freedomhellipto manifest his religion or belief in

teaching practice worship and observance71

The policies implemented by Chinese authorities

through use of coercion violent repression and imprisonment impinge upon the freedom of

Tibetans to practice their religion freely China has also strictly enforced re-education programs

for dissident factors within the state The program is aimed at ―combating separatism protecting

stability and promoting development and is intended to reform the political ideology of people

who refuse to accept state control of what they perceive as vital aspects of their religious lives

and beliefs The committee will be expected to deliberate upon the protection of religious

freedom and practices of individuals as well as the validity of these re-education programs in

light of human rights and liberties

Tibet is not the only region where political tensions surrounding autonomy run high The

Kosovo-Serbian conflict is pertinent to recall The Republic of Kosovo declared itself to be an

independent entity on February 17 2008 As of 11 October 2011 85 UN states recognize the

independence of Kosovo However Serbia maintains that Kosovo is a UN governed entity under

67

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 68

httpwwwfreetibetorgabouttorture 69

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 70

Ibid 71

httpwwwunorgendocumentsudhr

UNHRC 19 of 44

its sovereignty Russia and China are among those who do not recognize the Republic while the

USA UK and France have recognized Kosovolsquos declaration of independence This highlights the

rift between the United Nations Security Council over the issue The case of Tibet is all the more

important in light of the fact that many such pockets exist in the world struggling for self-

determination

Media Links

httpwwwfreetibetorgnewsmedia2008-protests-summary

httpwwwguardiancoukworldgallery2008mar19tibetchinapicture=333178281ampindex=7

Chinarsquos Violation of Ethnic Minority Rights

One of the greatest blemishes on Chinalsquos human rights record is in the area of ethnic minorities

and the extent to which China protects ethnic minority rights On paper Chinalsquos policies are

based on ethnic equality and regional ethnic autonomy Ethnic minorities are supposed to be

benefitting from preferential policies in the political economic cultural and educational spheres

However the ground realities are infinitely different Questions have been raised over the extent

to which the government fairly provides services to these minorities and allocates resources

equally to them The Chinese government is seen to largely prefer its Han majority The

minorities claim they are exploited for their resources and in turn not even provided with the

same level of social services as the Han people China is an atheistic government and the fact

that many ethnicities garner their identity in major part from their religious affiliation leads to a

precarious situation The Mongols Tibetans and Uighurs all come to mind when discussing the

issue of China and ethnic minority rights

―Everyone is entitled to all the rights and freedoms set forth in this Declaration without

distinction of any kind such as race colour sex language religion political or other opinion

national or social origin property birth or other status Furthermore no distinction shall be

made on the basis of the political jurisdictional or international status of the country or

territory to which a person belongs whether it be independent trust non-self-governing or

under any other limitation of sovereignty

- Article 2 Universal Declaration of Human Rights

The International Convention on the Elimination of Racial Discrimination defines racial

discrimination as any distinction exclusion restriction or preference based on race colour

descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the

recognition enjoyment or exercise on an equal footing of human rights and fundamental

UNHRC 20 of 44

freedoms in the political economic social cultural or any other field of public life72

It is due to

this that the international community has adopted the norm of subsuming ethnicity under the

terminology of race

―The Peoples Republic of China is a united multi-ethnic country So far 56 ethnic groups have

been identified and recognized by the central government The population of various ethnic

groups differs greatly While the Han ethnic group has the largest population and that of the

other 55 ethnic groups is relatively small so they are customarily referred to as ethnic

minoritieslsquo According to the fifth national census conducted in 2000 the population of all the

55 ethnic minority groups totaled 10449 million accounting for 841 percent of the total

population of China73

Chinas official 55 minorities are located primarily in the south west

and north of China Only Tibet and Xinjiang have a majority population of official minorities

while all other provinces municipalities and regions of China have a Han majority

One of Chinalsquos autonomous regions is the Xinjiang Uighur Autonomous Region (XUAR)

located in western China The area is vast accounting for one sixth of Chinalsquos land and houses

around 13 major ethnicities including the Uighurs who are a predominantly Muslim people with

origins in Central Asia The Uighurs have had strained ties with the state and have often resisted

Chinese authority74

In turn the Chinese government has reacted sometimes violently against

restless factions in the region One of the most passive aggressive forms of response on the part

of the Peoplelsquos Republic has been the encouragement of the migration of the Han people ndash

Chinalsquos ethnic majority ndash to the XUAR75

Around 90 of Xinjiangs population comprised of

Uighurs in 1949 now it is estimated that Uighurs make up only about 45 of the population76

The policies in Xinjiang are said to be designed to ―promote economic development not

demographic change In reality though the influx of migrants has amplified Uighur discontent

as Han and Uighurs compete over limited jobs and natural resources77

The United Stateslsquo

Congressional-Executive Commission on China reported that in 2006 the XPCC (Xinjiang

Production and Construction Core) reserved approximately 800 of 840 civil servant job openings

for Han Chinese78

One of the causes of the Han monopoly in the employment sector is the

linguistic advantage afforded to them and perpetuated by the education system As part of its

efforts to implicitly impose a unified culture the language policy was altered by the state with

an increased focus on use of Mandarin in schools at the expense of the local languages

Methods of education special to the ethnic peoples of the XUAR including the Muslim Uighurs

are suppressed For example a campaign by the PRC in 2001 targeted religious teachers and

72

httpwww2ohchrorgenglishlawcerdhtm 73

httpenglishgovcnofficial2005-0728content_18127htm 74

httpwwwcfrorgchinaeast-turkestan-islamic-movement-etimp9179 75

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p8 76

httpnewsbbccouk2hiasia-pacific3330803stm 77

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p4 78

httpwwwcolumbiaeducunewsclips20080801UighursTWPOSTpdf

UNHRC 21 of 44

endeavored to sever ties between mosques and groups involved in allegedly ―separatist

activities Around 8000 imams were required to undergo ―political reeducation in this regard

and become ―patriotic religious personalities Ethnic minorities are educated in ways that do not

allow them to learn their own languages or practice their own religion In 2001 for example a

Muslim girl was expelled from school for praying 79

Moreover in an attempt to further its socialist agenda and bind ethnic minorities together

minority cultural activities are often hindered In its place nationalistic values are given a

premium and integrated into society so as to tie the entire country in a unified Chinese foldlsquo

Resultantly an asymmetry with regards to the provision of services and protection of cultural

identity can be found in almost every ethnic minority region in the country The repression

against minorities has wider implications on the human rights situation for all This leads to

creation of a vindictive attitude among the minorities not only against the government but also

the Han majority

In July 2009 this attitude manifested itself in

the form of severe riots between the Han and

Uighur communities in Xinjianglsquos capital city

Urumqi Ethnic tensions elevated to the point

that police involvement was made necessary

According to Chinese state media at least 150

people were killed and more than 800 were

injured The riots were reportedly sparked by a

Uighur protest over the ethnically motivated

killing of two Uighur workers in the southern

province of Guangdong

On the topic of allegations of separatism it is interesting to note that post 911 it has been noted

that the Chinese government has used concerns about terrorism as a method for suppressing

ethnic activity This is possible through the characterization of certain ethnicities as having

fundamental leanings The Muslim Uighurs fell under fire for this very reason after the

September 2001 attacks

One of the ways that the Chinese government with its Han leanings has asserted its presence in

the region is through the smokescreen of the XPCC The Peoplelsquos Liberation Army and the

XPCC are present in the region per the government to ―consolidate border defense accelerate

79

wwwminorityrightsorgdownloadphpid=29 Page 30

UNHRC 22 of 44

Xinjianglsquos development and reduce the economic burden on local governments and the local

people of all ethnic groups80

The heavy militarization of ethnic minority

regions also enables the Chinese government

to quickly respond to skirmishes between the

minorities and the Han For example clashes

between the Uighurs and the Han in the

XUAR are quickly clamped down upon The

response by Chinese authorities always

focuses on the minority groups in the region

The typical response includes a period of

strike hardlsquo security measures during which the minorities are subjected to police patrols of

crowded areas identity checks street searches increased criminal investigations and accelerated

trials The measures also include mandatory political indoctrination classes for the Uighur

population Swift Chinese response to ethnic dissidence precludes the possibility of trying

protestersrioters under due process This phenomenon also contributes to the controversy of

China and its policy of arbitrary imprisonment

Essential to any countrylsquos social progress is the protection and provision of the basic rights to all

its citizens For a country like China which has a significant standing in the international

community the degree to which human rights are upheld comes under added scrutiny Minorities

need to be guaranteed provision of not only fundamental rights but additional ones that grant

them equal opportunities

Recent Developments

3 November 2010 UN Secretary General pushes China on human rights

Ban Ki-moon the United Nations secretary general has called on China to respect human rights

after critics accused him of dodging the issue on a trip to Beijing The UN secretary general met

Hu Jintao the Chinese president but failed to challenge Mr Hu on the imprisonment of Liu

Xiaobo the democracy activist who was awarded this years Nobel Peace prize and raise the

issue of human rights81

80

httpwwwchinaorgcne-white200305269htm 81

httpwwwtelegraphcouknewsworldnewsasiachina8107148UN-Secretary-General-pushes-China-on-human-

rightshtml

UNHRC 23 of 44

5 November 2011 Yeqing Ji from Shanghai China will most likely not be able to have children

after she said two forced abortions physically impaired her uterus82

8 September 2011 The Chinese government has renewed Googlelsquos license to allow it to

continue operating its local website in the country83

13 November 2011 Seven months ago

Chinese police detained the countrylsquos most prominent artist Ai Weiwei at the airport and drove

him to a hidden location It was the beginning of what is to be a two-and-a-half month nightmare

for the architect and sculptor who is also a former darling of the Communist Party who later

turned into an outspoken government critic Ai was held on vague charges of economic crimes

was kept in isolation and subjected to Kafka-esque interrogations84

April 19 2011 Amnesty International a 21-year-old monk Phuntsog set himself on fire in an

apparent anti-government protest in March 2011 Instead of putting out the flames Chinese

police beat the young monk creating huge resentment in the monastery85

At least 11 ethnic

Tibetans have been detained for protesting against the event and against government policies

They are at risk of torture and other ill-treatment86

29 May 2011 300 Tibetan monks detained in Kirti monastery by Chinese security forces87

15 September 2011 Chinese Uighurs economic fears

Amid ethnic tensions minority regards modernization plans in Xinjiang as favoring Han Chinese

migrants88

20 November 2011 Another of Chinalsquos minorities the Hui Muslims in Ningxia do not feel

stigmatized

―There is an important reason why Hui and Han Chinese get along with each other Unlike

Muslims of the other ethnic minorities like Uighur Kazakh Kyrgyz and Tajik the Hui Muslims

speak Mandarin just like the Hans89

82

httpabcnewsgocomBusinesswoman-china-forced-abortions-leaves-unable-

childrenstoryid=14880884Tsia7LIk6so 83

httpwwwbbccouknewsbusiness-14832392 84

httpwwwthedailybeastcomnewsweek20111113ai-weiwei-speaks-out-on-his-detentionhtml 85

httphradvorgaggregatorsources10 86

httpwwwamnestyorgenlibraryassetASA170212011end75f7611-be66-4d5a-9391-

c80c43501d56asa170212011enhtml 87

httphumanrightshouseorgArticles16503html 88

httpwwwaljazeeracomvideoasia20110920119158016969449html 89

httpwwwtodayszamancomnews-263322-chinas-hui-muslims-do-not-feel-stigmatizedhtml

UNHRC 24 of 44

Conclusion

The United Nations Human Rights Council at LUMUN 2012 will be looked upon to provide a

framework for the resolution of these issues in a universal context The scope of the issues

should be expanded and applied to countries other than China The committee will have to make

recommendations which have universal application and resolve all aspects of the issue

comprehensively For any queries related to the study guide please do contact either (or both)

the committee directors at the given addresses

UNHRC 25 of 44

Topic Area B Abolishing the Death Penalty

Introduction to the Topic Area

The death penalty is formally defined as the execution of an offender sentenced to death after

conviction by a court of law of a criminal offenselsquo90

The concept of a capital crime is subjective

and states have made use of this practice in response to multiple forms of crime The use of the

death penalty has produced much controversy with regard to its apparent violation of

fundamental human rights as delineated in the Universal Declaration of Human Rights and

subsequent human rights charters and treaties It is asserted that the use of death penalty is in

contravention to the peopleslsquo right to life promised to every individual under Article 3 of the

Declaration91

Moreover Article 2 of the Charter of Fundamental Rights of the European Union

lucidly bars the imposition of death penalty as a form of punishment92

Arguments against the

use of death penalty are also made on the grounds of inhumane methods which are employed to

see out the process Historically multiple methods have been used which include death by

hanging severing of the head lethal injection shooting and electrocution93

94

As a response states have made keen efforts to abolish

the death penalty particularly in the last two decades as

can be interpreted from the graph on the right which

represents the number of states that have abolished the

death penalty Countries belonging to the European

region with the exclusion of Russia and Belarus have

sought to revoke the use of the practice The death

penalty is most commonly seen to be a formal practice

in most of the developing countries The trend is

apparent in Latin America Africa and Asia

96 countries have formally abandoned the use of death penalty 58 countries allow the use95

Other states have abolished the penalty in practice but the laws remain in place for the

imposition of the penalty as a response to certain crimes The imposition of the death penalty has

90

httpwwwbritannicacomEBcheckedtopic93902capital-punishment 91

httpwwwunorgendocumentsudhr 92

httpwwweuroparleuropaeucharterpdftext_enpdf 93

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffle

re-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 94

httpwwwdeathpenaltyinfoorgmethods-execution 95

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf

Figure 1 (Drag to enlarge)

UNHRC 26 of 44

seen a decline over the recent years with a fall in the number of executions that take place

annually It would however be incorrect to assume that the practice is not prevalent or widely in

effect Amnesty International reported that at least 2024 new death sentences were imposed in 67

countries in 2010 Moreover there were at least 17833 people sentenced to death worldwide at

the end of 201096

Again these are minimum figures which are the safest that can be inferred

from the given research There were 527 known executions carried out in 2010 globally97

This

figure however does not include the number of executions that took place in China where

analysts believe that more than a thousand people were put to death in the past year

The statistics represent the number of people executed through capital punishment One way to

formally define capital punishment is to regard it as the state sanctioned killing of an individual

through a judicial process as a punishment for a crime (defined as a capital crime by the state)98

Capital punishment is the most obvious and prevalent manifestation of the death penalty It is

often perceived as a statelsquos right in order to preserve law and order against any individual who

engages in serious crimes that threaten other individuals or the state Those who advocate against

the use of capital punishment label it as a symptom of a culture of violence not a solution to

itlsquo99

The controversy surrounding the topic is based on the legal ethical and moral acceptability

of the statelsquos right to an individuallsquos life The debate entails several social and economic factors

some of which will be reviewed in closer detail in the relevant section of this guide

One of the most striking aspects related to the issue is the imposition of the capital punishment

on juveniles The sentencing of juveniles to death is in clear breach of international law The

morality and validity of such a practice is often called into question and has been put under

relentless scrutiny despite all of which the practice is still carried out in a number of countries

Historically the United States China and Iran have the worst records relating to juvenile death

sentences100

The study guide also includes a separate section for the case of juveniles in which

the legal and social aspects of the problems are detailed

As stated states have made use of the death penalty to punish crimes of varying natures The use

of the death penalty is reserved for only the most seriouslsquo crimes as put forth in international

law101

The notion of a capital crime however is a subjective one states that have doled out

death sentences have defined it differently In certain countries the death penalty is only used to

charge criminals accused of war crimes In other countries the penalty is reserved for crimes like

96

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf 97

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010 98

httpusersrcncommwooddeathpenhtml 99

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 100

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 101

httpwwwunorgdocumentsecosocdocs1995e1995-78htm

UNHRC 27 of 44

murder rape or even robbery States also use the death penalty against individuals who are guilty

of treason The issue however is that many states practicing the death penalty impose the

punishment even when the crimes do not meet the threshold for the aforementioned most

seriouslsquo crimes The ability of states to define what constitutes as a capital crime has led to states

abusing their powers as has been observed in the sentences ordained by military courts

Moreover even the radicals who make the argument of the punishment fitting the crime agree

that in many instances individuals have been executed for softlsquo crimes crimes that were

certainly not tantamount to charges of murder or crimes against humanity The issue of apparent

violations of human rights is further exacerbated in these instances The study guide will discuss

the universal crimes that have resulted in the awarding of the death penalty and examine the

issue further The committee will be expected to discuss the feasibility of drawing up an

international definition of crimes which in isolated instances perhaps may be appropriate for a

sentence like the death penalty

Another pertinent aspect surrounding the debate is that of extrajudicial killings The execution of

a person by state authorities without the authority of a judicial proceeding is termed as an

extrajudicial killing Many states have used extrajudicial killings to establish their authority and

order without having to wade through the legal process By doing so they have deprived scores

of people of their fundamental right to free and fair trials Governments have also employed this

tactic to exercise political aggression and to suppress dissent A particular point of concern is the

fact that some states have made use of these killings even when they have officially revoked the

imposition of the death penalty Extrajudicial killings are carried out persistently in many

countries ndash the list includes countries like Iran Iraq Israel Philippines102

Most recently the

killing of Anwar al-Awlaki and Samir Khan in Yemen by a sanctioned National Security Council

move by the USA was an example of states embarking on such paths to eliminate threats to

national securitylsquo103

102

Multiple citations for each country can be found in the second paragraph article titled Extrajudicial killinglsquo on

Wikipedia 103

httpwwwtelegraphcouknewsworldnewsbarackobama7564581Barack-Obama-orders-killing-of-US-cleric-

Anwar-al-Awlakihtml

UNHRC 28 of 44

Wrongful convictions lead many to believe in the inherent incapacity of the death penalty to

serve justice On September 21 2011 US citizen Troy Davis was executed in Georgia after

which seven of the nine witnesses who testified against him in the case that led to his execution

recounted or retracted their evidences A petition with nearly one million signatures was put

forth to reconsider his case it was rejected On the same day a 17 year old boy was publicly

hanged in Iran for killing a popular athlete his justification based on self-defense was ignored

Also on the same day a Pakistani national was executed in China on grounds of drug trafficking

an offence that does not often result in capital punishment The need for the resolution of this

issue is pressing and the committee needs to deal with all aspects of the problem in a

comprehensive and enduring manner104

Capital Punishment

In 2010 23 countries implemented capital punishment A total of 527 executions (plus the 1000+

carried out in China alone) were known to have taken place with Iran Yemen USA and North

Korea meting out a significant number of sentences105

The figure is lower than the records

computed for years past There are more states which are now abolitionist either in law or in

practice with regard to the imposition of the punishment Gabon was officially the last country

to rescind the practice while bills calling for an end to capital punishment have been presented

to parliaments in Lebanon Mali Mongolia and South Korea106

Renewed efforts are

104

httpwwwamnestyorgennews-and-updatesus-executes-death-row-prisoner-troy-davis-2011-09-21 105

httpwwwguardiancouknewsdatablog2011mar29death-penalty-countries-world 106

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010

UNHRC 29 of 44

simultaneously being made on the international front to implement laws against capital

punishment A third resolution establishing a moratorium on the use of death penalty passed the

UN General Assembly on December 21 2010107

Despite the increasing momentum towards an eventual elimination of the practice the number of

executions taking place annually is a cause of major concern Advocates of the death penalty

assert that the practice is an effective means of deterring crime in society Public executions are

often held in Iran Afghanistan and Palestine for example to demonstrate the fate awaiting

those who commit similar crimes108

Arguments are made on the grounds of justice that it is

proper and fair to take an eye for an eye and a life for a life and that some individuals deserve

it for the crimes they commit

Those opposing the practice question the morality of an action sanctioned by the state which

endorses deprivation of the right to life a fundamental human right under the Universal

Declaration of Human Rights109

There are inescapable flaws within legal systems which are

aggravated by discrimination prosecutorial misconduct and inadequate legal representation

Moreover the risk of executing the innocent can never be eliminated110

An alternative is

presented in the form of imprisonment for life without parole which results in a parallel debate

is imprisonment for life a viable surrogate to the practice of death penalty A thread from this

debate also relates to the economic feasibility of carrying out a death sentence as opposed to the

feasibility of imprisonment for life

Deterrence

Capital punishment is often propagated as an adequate approach in the deterrence and prevention

of crime The logic is that if murderers are sentenced to death potential murderers will think

twice before killing for fear of losing their own life The deterrence theory presumes that the

once the punishment for a certain crime is established the criminal by committing the crime

voluntarily assumes the risk of receiving the prescribed punishment for the crime Only when the

most severe punishment has been set will there be a possibility of an individual evaluating their

actions in light of the consequences111

107

httpwwwundemocracycomA-RES-62-149pdf 108

httpwwwamnestyorgennews-and-updatessharp-rise-public-executions-iran-executes-first-juvenile-

offenders-2011-2011-04-27 109

wwwunorgendocumentsudhr 110

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 111

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 30 of 44

The death penalty it is asserted ensures that convicted criminals do not offend again moreover

it is deemed to be a just penalty for atrocious crimes It is further alleged that many criminals

who are set free even after lengthy sentences regress and go on to commit heinous crimes

Therefore there should never be the possibility of a release clause112

The deterrence theory is modeled on the grounds of human psychology logic and rationale As a

professor of jurisprudence Ernest van den Haag PhD wrote ―Common sense lately bolstered

by statistics tells us that the death penalty will deter murder if anything can People fear nothing

more than death Therefore nothing will deter a criminal more than the fear of death These

statements were further validated by a US Supreme Court Justice who said on record that

Prima facie the penalty of death is likely to have a stronger effect as a deterrent to normal

human beings than any other form of punishmentlsquo113

Numerous studies have been conducted on

the subject with varying results One of the most established studies was conducted in USA

using a panel data set of over 3000 counties from 1977 to 1996 which concluded that on

average one death sentence resulted in 18 fewer murders114

Delegates will be expected to be

familiar with other similar studies

These studies are commonly refuted as not crediblelsquo by opponents of the capital punishment

who also deny the correlation between crime and death penalty as a fabricated relationship which

cannot be empirically established115116

A study of the relationship between capital punishment

and the incidence of murder was conducted for the UN in 1988 and updated in 2002 The

conclusion was ―The investigation has not provided scientific proof that executions have more

deterrent effect than life imprisonment It is unlikely that such evidence will ever come

Deterrence hypothesis finds no support in the survey117

Another counter-argument asserts that crime is still a persistent feature of the societies that

continue to award the death penalty while many of the abolitionist states enjoy low crime rates

This can be evidenced by comparing the crime rate in USA or Pakistan with that of Canada or

some European state In Canada for example the homicide rate per 100000 fell from a peak of

309 in 1975 the year before the abolition of the death penalty for murder to 241 in 1980 and

in 2003 27 years after abolition the homicide rate was 173 per 100000 44 per cent lower than

in 1975118

112

httpwwwdeathpenaltyinfoorgfacts-about-deterrence-and-death-penalty 113

httpdeathpenaltyproconorgviewresourcephpresourceID=002000 114

httpdeathpenaltyproconorgsourcefilesThe20Deterrent20Effect20of20Capital20Punishmentpdf ndash

Delegates should carefully examine certain parts of this document to establish the credibility of the assertions made

They should also invest in trying to locate studies that refute the assertions made in this and similar studies 115

httpwwwdeathpenaltyinfoorglaw-enforcement-views-deterrencelawenforcement 116

httpwwwdeathpenaltyinfoorgDonohueDeterpdf 117

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 118

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml

UNHRC 31 of 44

The lack of evidence on the production of a unique deterrent effect points to the danger of

relying on the deterrence hypothesis as a basis for public policy on the death penalty

Retribution amp Morality

An important terminology that delegates need to familiarize themselves with is that of

―retributivism119

It is defined as ―a policy of criminal justice that sponsors the punishment of

criminals in retribution for the harm they have inflicted120

Criminals deserve to be punished in

proportion to the gravity of their crime regardless of whether the victim or anyone else desires

it we may all deeply regret having to carry out the punishment but consider it warrantedlsquo is

what many say in defense of the theory121

The need for the establishment of a visibly just state arises from the potential risks of not having

one As has been visible in many developing countries with shaky legal systems when criminals

are not adequately punished for their unlawful behavior the public takes the law into its own

hands and deals out vigilante justice It is asserted that retributivism is essential for a functioning

society where individuals respect the supremacy of law

The concept of retribution in society is also grounded in religious beliefs The concept of an eye

for an eye has been a part of all three Abrahamic traditions However in the modern world it is

Islamic nations that still retain the practice based on these grounds Similar traditions can be

found in Hinduism Christianity and Buddhism as well as other religions in different parts of the

world In many non-secular countries the constitutions and state laws are derived from religious

doctrines

Opponents dismiss this aspect of the argument as being emotionally charged with little rational

logic to support the contention They claim that the establishment of capital punishment gives

birth to a culture of violence endorsed by the state It perpetuates the cycle of aggression and

brutality something which the state should be actively inhibiting not endorsing

Wrongful Convictions

The death penalty carries with it the danger of wrongfully convicting an innocent person for

crimes he did not commit There is the potential for capital punishment to evolve into sheer

miscarriage of justice as in certain circumstances states are often seen to rush the trials and

convict the accused hastily This practice takes foremost apparently in military courts often in

119

Cavadino M amp Dignan J (1997) The Penal System An Introduction (2nd ed) p 39 London Sage 120

httpdictionaryreferencecombrowseretributivism 121

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 32 of 44

the developing or lesser-developed countries where the system of law is not properly established

It is not however exclusive to these countries Examples can be drawn from countries like

Philippines Thailand Iran and Palestine to name just a few where executions are carried out at

alarming pace removing the possibility of reviews

On 15 August 2004 Atefah Rajabi Sahaaleh was hanged in a public square in the Iranian city of

Neka Her death sentence was imposed for adultery and crimes against chastity122123

Atefah

was executed a week after the trial was run Following the execution the Judge for the case was

arrested for investigation by the Intelligence Ministry The media reported that in addition to the

confession of his rape of Atefeh Judge Rezai who served as judge jury and executioner also

confessed to torturing her during interrogations to extract names of others she had relations with

No transcripts from court proceedings were recorded The State alleged that Atefah was 22 at the

time of her execution A witness later claimed The judge just looked at her body because of

the developed physique and declared her as 22124

ndash her birth certificate revealed she was born

in 1988 Furthermore Atefah did not have access to a proper defense where she could contest

charges leveled against her This is one example of many such cases of miscarriage of justice

Something that recurs in these cases is the failure of the police or prosecuting authorities to

prevent the use of unreliable witnesses the misuse of evidence or confessions and the provision

of inadequate defense representation The advent of DNA profiling and the use of it as positive

evidence in criminal cases has resulted in the exoneration of multiple death row inmates on

grounds of forensic evidence or lack thereof Since 1973 138 people have been released from

death row in the United States after it was proven that they were innocent125

In 2009 Paul

House was cleared of murder and exonerated in Tennessee USA after having served 22 years

on death row His innocence was proclaimed in light of substantial additional DNA testing and

further investigationlsquo 126

Amnesty International has noted examples of wrongful convictions from elsewhere as well

including Jamaica Japan China Nigeria and Tanzania127

Paul G Cassell a former law clerk to

the Chief Justice of USA stated the mistaken release of guilty murderers should be of far greater

concern than the speculative and heretofore nonexistent risk of the mistaken execution of an

innocent personlsquo highlighting the case made by those who advocate the death penalty even in

light of wrongful convictions128

122

httpwwwcosmolearningcomdocumentariesexecution-of-a-teenage-girl1 123

httpnewsbbccouk2hi5217424stm 124

httpnewsbbccouk2hi5217424stm 125

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 126

httparticlescnncom2009-05-13justicetennesseeexonerated_1_death-row-inmate-dna-evidence-house-

arrest_s=PMCRIME 127

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 128

httpdeathpenaltycurriculumorgstudentcaboutargumentstestimony3bhtm

UNHRC 33 of 44

Alternative to Death Penalty

All abolitionist states have reverted to the practice of sentencing criminals to life imprisonment

(some without parole) which is also termed as death by incarceration Widely regarded as a more

humane course of action life imprisonment is also alleged to be a more economical practice

While ensuring public safety by keeping criminals away from society this system also saves the

lives of innocent people who have been falsely or wrongfully convicted The setup inhibits and

curbs the cycle of violence while retaining the deterrence factor it is strongly asserted

Advocates for the death penalty are averse towards life imprisonment for a number of reasons

They cite the unreliability of the system as one of the flaws which impedes the possibility of

such a sentence being successful A certain James Moore serves as a valid example in this case

In 1962 James Moore raped and strangled 14-year-old Pamela Moss The victimlsquos parents opted

out of capital punishment for Moore and he was instead sentenced to life in prison without

parole Twenty years later a change in sentencing laws in 1982 renders James Moore eligible for

parole every two years129130

Kenneth McDuff is another example McDuff was convicted and sentenced to life imprisonment

Years later due to the issue of overcrowding in prisons McDuff was released following which

he killed eight more people McDufflsquos example is of an individual from a developed country

with an established legal system in place131

Overcrowding is a feature of prisons in developing

or lesser developed countries In many such states criminals have also been known to easily

break out from penitentiaries

The economic aspect of the debate is murky at best There is a lack of empirical data on the

subject which is why the arguments of both these sides cannot be settled beyond doubt

Advocates of capital punishment insist that the overall costs of the practice are far lesser than the

costs of housing an inmate for a lifetime132

They also suggest that the life imprisonment allows

criminals to conceive new habeas corpus petitions which on legal grounds cannot be rejected

automatically resulting in more trials

On the other hand substantial arguments are made which stress that the cost of legal proceedings

in capital cases is in truth more than that of other cases States and nations spend a significant

portion of the taxpayerlsquos money in meting out such punishments133

Delegates when addressing

this portion of the debate will need to be aware of the financial aspects of the issue as it forms

for many states an important part of whether capital punishment should be revoked or

not

129

httpwesleylowecomcphtmldeter 130

httpwwwnytimescomkeywordparole 131

httpwesleylowecomcphtmldeter 132

Ibid ndash view section titled Capital Punishment and its costslsquo 133

httpwwwamnestyusaorgour-workissuesdeath-penaltyus-death-penalty-factsdeath-penalty-cost

UNHRC 34 of 44

Imposition of Death Penalty on Juveniles

The prohibition on the death penalty for crimes committed by juvenile offendersmdashpersons under

age 18 at the time of the offensemdashis well established in international law specifically in the

Convention on the Rights of Child

ldquoNo child shall be subjected to torture or other cruel inhuman or degrading treatment or

punishment Neither capital punishment nor life imprisonment without possibility of release shall

be imposed for offences committed by persons below eighteen years of agerdquo134

- Article 37(a) Convention on the Rights of Child

ldquoSentence of death shall not be imposed for crimes committed by persons below eighteen years

of age and shall not be carried out on pregnant womenrdquo135

- Article 6(5) International Covenant on Civil and Political Rights

The treaties are a unanimously agreed set of non-negotiable standards and obligations By

acceding to the treaties and ratifying them governments commit to protecting and ensuring

childrens rights and to holding themselves accountable for this commitment before the

international community

Even though the practice of capital punishment on juveniles is relatively rare however in clear

contravention of international law nine countries have executed offenders who were juveniles at

the time of their crimes between 1990 and 2005136

These countries include the Peoples Republic

of China (PRC) the Democratic Republic of the Congo Iran Nigeria Pakistan Saudi Arabia

Sudan the United States and Yemen137

The USA has since moved to implement a ban on capital

punishment for juveniles However in most other countries of the preceding list the practice is

still enshrined in the judicial system Iranlsquos record in particular has been abominable over the last

decade It has carried out 39 executions of persons under the age of 18 since 2005 Presently

over a hundred individuals are placed on death row for crimes committed as juveniles The

executions of Mahmoud Asgari Ayaz Marhoni and Makwan Moloudzadeh became international

symbols of Irans child capital punishment and the judicial system that hands down such

134

httpwww2ohchrorgenglishlawcrchtm 135

httpwww2ohchrorgenglishlawccprhtm 136

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf - This document by the Human Rights Watch

called The Last Holdoutslsquo is a good summary of juvenile executions and should be reviewed 137

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 - Contains a list with

statistics and details of countries which have allowed the imposition of death sentence to juveniles

UNHRC 35 of 44

sentences138139140

Saudi Arabia and China too have questionable records that need to be

scrutinized further

While regional treaties and charters usually substantiate international law the Arab Human

Rights Charter of 2004 is unique among regional and international treaties in that the ban on the

juvenile death penalty in it is not absolute but merely optional141

Furthermore national laws in states that observe such a practice are in violation of

international legally-binding charters In Iran and Saudi Arabia laws usually treat a child the

same way as an adult criminal offender would be treated Article 10(3) of the International

Covenant on Civil and Political Rights emphasizes the need for demarcation between the

handling of children and that of adults in stating ―Juvenile offenders shall be segregated from

adults and be accorded treatment appropriate to their age and legal status142

The definition of a child in these Muslim states is unclear as adulthood is associated with

attainment of puberty which is a relative concept The Committee on the Rights of the Child in

January 2005 censured the Saudi government for its practice of imposing the death penalty on

juveniles terming it a serious violation of the fundamental rights The committee was deeply

alarmed over the discretionary power judges hold to treat juveniles as adults as was stated in

the committeelsquos report Iran too was strongly condemned following the release of an

international report highlighting the dire situation in Iran by the International for Human Rights 143

138

httpwwwfoxnewscomstory0293329798200html 139

httpnewsbbccouk2himiddle_east7130380stm 140

httpenwikipediaorgwikiCapital_punishmentIran 141

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 142

httpwww2ohchrorgenglishlawccprhtm 143

httpwwwfidhorgIMGpdfRapport_Iran_finalpdf

UNHRC 36 of 44

On August 19 2008 Iranian authorities executed Seyyed Reza Hejazi at Isfahan Central Prison

for his role in a murder committed in 2003 when he was 15 Hejazi was tried as an adult by

Branch 106 of the Isfahan General Court even if he did not qualify as one under international

stipulations and sentenced to death on November 14 2005144

In Saudi Arabia Mu`id bin

Husayn bin Abu al-Qasim bin `Ali Hakami was executed on July 10 2007 for a murder he

allegedly committed three years earlier when he was 13 years old145

The judges in these states

because of the implementation of the Sharialsquo law have a large amount of discretion with regard

to their rulings This discretion is often abused in the interrogation and judicial proceedings In

Pakistan authorities hanged Mutaber Khan in Peshawar Central Prison on June 13 2006 on

charges of murder of five people The fact that he was held in the juvenile wing of Peshawar

Central prison and the evidence presented by the accused confirming that his age was below 18

at the time of the killings were not taken into account during the trials and Mutaber was charged

as an adult in the case146

While the above does not cover exhaustively the practice of capitally punishing juveniles the

committee is expected to be well read on the matter The committee will be required to devise

ways to strictly apply the existing international law on the subject to curtail further deaths of

juveniles by states A series of recommendations on better implementation of international

covenants will be expected from the committee Delegates at UNHRC will also have to

familiarize themselves with the stipulations in the national laws of countries practicing juvenile

death penalties (Iran Saudi Arabia Pakistan Nigeria Sudan Yemen and UAE among others) to

discuss how these states are constitutionally able to bend international law and mete out the

illegal punishments

144

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 145

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 146

See FIDH and Human Rights Commission of Pakistan ―Slow march to the gallows and ―Condemned Prisoner

Executed Dawn Newspaper Karachi June 14 2005 httpwwwdawncom20060614nat16htm

UNHRC 37 of 44

Universality of Laws Incurring the Death Penalty

In countries which have not abolished the death penalty capital punishment may be imposed

only for the most serious crimes it being understood that their scope should not go beyond

intentional crimes with lethal or other extremely grave consequences

- Safeguards guaranteeing protection of the rights of those facing the death penalty147

Laws incurring the death penalty or capital crimes have certain uniformity the world over This

is of course barring states that are religiously affiliated and whose law systems are not secular

in nature The list of capital crimes for those states with non-secular legal systems is slightly

different The Human Rights Commission had decided that the imposition in the State party of

the death penalty for offences which cannot be characterized as the most serious including

apostasy committing a third homosexual act illicit sex embezzlement by officials and theft by

force are incompatible with Article 6 of the Covenant Economic offences including

embezzlement drug related offences political offences and robbery were also referred to148

The reason why looking into capital crimes and trying to garner a global impression of them is

important is that the death penalty can only realistically be abolished in a piecemeal way This

process will entail shortening the list of capital crimes The UN formally notes that ―in order

fully to guarantee the right to life provided for in article 3 of the Universal Declaration of

Human Rights the main objective to be pursued is that of progressively restricting the number of

offences for which capital punishment may be imposed with a view to the desirability of

abolishing this punishment in all countries149

The first established death penalty laws date as far back as the Eighteenth Century BC in the

Code of King Hammaurabi of Babylon which codified the death penalty for 25 different crimes

By the 1700s 222 crimes were punishable by death in Britain including stealing cutting down a

tree and robbing a rabbit warren In the 19th

century the death penalty was eliminated for over

100 of the 222 crimes punishable by death 150

In modern times the UN Special Rapporteur on

extrajudicial summary or arbitrary executions has stated that the death penalty should be

eliminated for economic crimes and drug-related offences and that the restrictions to its use

―exclude the possibility of death sentences for so-called victimless offences ndash including acts of

treason espionage and other vaguely defined acts usually described as crimes against the Statelsquo

or disloyaltylsquo and ―actions primarily related to prevailing moral values such as adultery and

prostitution as well as matters of sexual orientation151

147

httpwww2ohchrorgenglishlawpdfprotectionpdf 148

httpwwwunhchrchtbsdocnsf0bc310a747155dff88025655300537faeOpendocument 149

General Assembly resolution 2857 httpwwwunodcorgpdfcompendiumcompendium_2006_part_01_05pdf 150

httpdeathpenaltycurriculumorgstudentcabouthistoryhistoryPDF 151

httpswwwabofimedia24259report10pdf

UNHRC 38 of 44

Contrary to the made recommendations even political dissent warrants a death sentence in

several countries most notably in China and Iran In 2010 nearly 20 Kurdish people were

executed for political offences in Iran The country is known for keeping dissent especially from

the Kurds suppressed Most are executed on the grounds of moharebeh or enmity against God

Moreover challenging the power of the Ayatollah is also punishable by death These charges are

neither explicit nor in line with international guidelines over what crimes are punishable

capitally In Iran judges must handle such cases carefully as Iranian law provides for only one

punishment if an individual is found to be guilty of treason Libya too thwarts political dissent

with firm laws in place for punishing by death those who illegally form groups organizations or

associations against the state152

Saudi Arabia too is worth note for its vaguely phrased laws governing capital punishment

Intentional murder and crimes that spread ―mischief in the land (Fasad fil-ardh) merit death In

2010 the government announced that it had executed 26 people all by beheading Crimes that

―spread mischief include witchcraft and sorcery153

How is one convicted of witchcraft in the

21st century What can the international community do when regarding countries such as these

Treason arguably along with murder is the capital crime that has yet to be phased out by many

countries In some such as Brazil treason during warfare is the only crime for which a person

can be sentenced to death In the Gaza Strip under Hamas any sort of cooperation with Israeli

forces during military actions is also punishable by death In others including Algeria Bahrain

Iran and Malaysia treason is punishable by death in all circumstances The United States too has

federal laws governing treason under which traitors ―shall suffer death154

Child sex abuse is another crime that is widely held to merit the death penalty In Russia for

example according to the Russian Public Opinion Research Center an overwhelming majority

consider the death penalty to be an acceptable punishment especially in relation to molestation

155 In 2009 however Russias Constitutional Court effectively abolished the death penalty by

extending indefinitely a 13-year-old moratorium on capital punishment156

Indonesia has some of the strictest penalties for drug related crimes in the world Roughly half of

those on death row are incriminated with drug-related charges157

In 2008 though the most high

profile executions were of terrorists Three of those found responsible for the 2002 Bali

bombings were executed by shooting158

Generally speaking however a significant proportion of

152

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 153

httpwwwstategovgdrlrlshrrpt2010nea154472htm 154

httpdeathpenaltyproconorgviewresourcephpresourceID=1172 155

httpenrianrutrenddeath_penalty 156

httpwwwreuterscomarticle20091119idUSLJ330478 157

httpwwwnytimescom20080711worldasia11iht-indo114421132html 158

httpnewsbbccouk2hiasia-pacific7718246stm

UNHRC 39 of 44

the executions or death sentences recorded (in 2010) in China Egypt Indonesia Iran Laos

Libya Thailand United Arab Emirates and Yemen were for drug-related offences In December

2010 the amended Anti-Narcotics law came into force in Iran extending the scope of the death

penalty to include additional categories of illegal drugs (for example crystal meth) possession

of which became punishable by death Also around the same time the National Assembly of

Gambia voted to extend the scope of the death penalty by making the possession of more than

250g of heroin or cocaine an offence punishable by death159

Several states allow for the death penalty for crimes of blasphemy and other crimes for

nonviolent expression and association In Pakistan Aasia Bibi a Christian mother of five was

charged with blasphemy and sentenced to death after a trial largely believed to be unfair on 8

November 2010 She is currently on death row The country is also noted for its laws concerning

capital crimes The list includes 27 crimes most of which go beyond the notion of ―most serious

crimes as recommended by the International Covenant on Civil and Political Rights Extra-

marital sex and blasphemy are examples of some capital crimes in the country In December

2007 Pakistan voted against a United Nation General Assembly resolution for a moratorium on

the death penalty The year before however the nation amended its law on rape and adultery

charges which are no longer punishable by death160

As far back as 1989 recommendations have been made as to how to abolish the death penalty

Member states (of the UN) have been urged ―to publish for each category of offence for which

the death penalty is authorized and if possible on an annual basis information about the use of

the death penalty including the number of persons sentenced to death the number of executions

actually carried out the number of persons under sentence of death the number of death

sentences reversed or commuted on appeal and the number of instances in which clemency has

been granted and to include information on the extent to which the safeguards referred to above

are incorporated in national law161

The committee must inspect how far this recommendation

has been adopted and should seek to rectify the weaknesses in the system of gradually

abolishing the death penalty Can a target year be designated by which crimes meriting the death

penalty could be made universal How can countries with non-secular legal systems be brought

into the fold of international law

159

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 160

httpwwwfiacatorgenIMGpdfdppakistan-enpdf 161

httpgraduateinstitutechfacultyclaphamhrdocdocsecosocresolutiondeathpen1989html

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 14: UNHRCFINAL

UNHRC 10 of 44

censorship history About a dozen government bodies control internet usage including the

Ministry of Public Security29

It has been noted that while the Chinese advertising industry is

booming this freedom does not extend to editorial content of newspapers30

This phenomenon of

Chinese censorship has been labeled in the mainstream global media as the Great Firewall of

China The Firewall serves to filter both the information coming into China as well as

information generated within the nation It is beyond being a clever pun a matter of concern for

the committee because of its repressive characteristic The State imposes such extreme

restrictions of freedom of information under the premise of protection of its nationalistic

interests However its negative connotation is much obvious and its resemblance to Orwelllsquos

Ministry of Truth and the notion of thought control is uncanny The Peoplelsquos Republic has signed

(not ratified) the International Covenant on Civil and Political Rights The committee can look

into the reasons behind this as well as assess current global membership to the covenant

Chinalsquos Internet censorship is centered on the control of political thought The Measures on the

Administration of Internet Information Services and the Provisions on the Administration of

Internet News and Information Services are the two main instruments used to do so31

Section 19

of the latter deserves special attention and casts its scope to prohibit activities that disrupt

―national policies on religion propagating evil cults and feudal superstitions jeopardize ―the

security of the nation harm ―integrity of the nationlsquos unity or ―the honor or the interests of the

nation among other things32

Regulations are so stringent that in 2008 only eight websites out

of a total of 430000 in Guangdong Province ndash Chinalsquos most populous region -- were able to

obtain news publication qualifications permits33

The Internet news and information services entities engaging in Internet news and information

services shall abide by the Constitution laws and regulations by persisting in providing service

for the people and serving socialism and guiding public opinion to protect the interests of the

nation and the public

- Article 3 Provisions on the Administration of Internet News and Information Services

The national report submitted by China to the Working Group for the Universal Periodic Review

in 2009 exhibited the governmentlsquos opinion that ―with such easy fast and diverse ways of

gaining access to information and expressing opinion including criticism of the Government

Chinese citizens are enjoying an entirely new lifestyle34

According to a white paper published

29

httpwwwhrworgreports2006china08063htm_ftnref28 30

httpnewsbbccouk2hiafricacountry_profiles1287798stm 31

httpwwwhrichinaorgcrfarticle3244 32

httpwwwchinaitlaworgp1=printampp2=051006175116 Provisions on the Administration of Internet News and

Information Services

Please peruse the following httpwwwhrworgreports2006china08063htm for commentary on the Provisions 33

Ibid 34

httplibohchrorgHRBodiesUPRDocumentsSession4CNA_HRC_WG6_4_CHN_1_Epdf

UNHRC 11 of 44

in 2008 by the Information Office of the State Council the internet is a ―crystallization of human

wisdom and ―Chinese citizens fully enjoy freedom of speech on the internet 35

Chinalsquos policies have relevance beyond

their contravention of what may seem to be

abstract principles China has jailed the

largest number of internet dissidents the

world over The case of Liu Shaokun for

example is a notable one He was a

teacher in Sichuan province which had

been hit in 2008 by a ravaging earthquake

around the time of the Summer Olympics

in Beijing China had been praised for

allowing reporters to openly cover the

earthquake Much of this openness however was part of a bid to soothe the international

community and project Beijinglsquos image as being the perfect venue for the Olympics Shaokun

however was sentenced to a year of labor for posting photographs of schools affected by the

earthquake He is among countless others who have been silenced36

When the Arab Spring flowered over the Middle East China cracked down on many social

networking sites to curb pro-democracy sentiments Amongst these was LinkedIn blocked over

the fact that one of its users had mentioned the possibility of a ―Jasmine Revolution in China37

The government blocks discussions about the Dalai Lama the Tiananmen Square protests and

the Falun Gong spiritual movement among other things In April of 2007 the Chinese version of

MySpace launched but lacked discussion forums centered on the aforementioned topics among

others including Taiwanlsquos independence In 2010 Google considered withdrawing its services

from China after a spur of cyber-attacks on email accounts of human rights activists 38

Google

and the government reached a deal whereby Google operated by Chinese guidelines within

mainland China However Google has a non-censored operation running in Hong Kong to

which it started routing customers in 2010 when it had concerns over Google accounts being

hacked by authorities It is testament to Chinese control that companies such as Google are

forced to enter the internet market on its terms Other instances of well renowned internet

websites being blocked or affronted include Twitter being banned during the 20th

anniversary of

the Tiananmen killings

The Committee to Protect Journalists ranks China as one of the worst internet censors The

Chinese government has been alleged of carrying out ―spear-phishing whereby spying software

disguised as legitimate emails is installed on computers that belong invariably to journalists

35

httpchinaorgcngovernmentwhitepapernode_7093508htm 36

httpcpjorgreports201012cpj-journalist-prison-census-iran-china-highest-14-yearsphp 37

httpwwwbbccouknewstechnology-12586462 38

httpnewsbbccouk2hi8460129stm Please look at this link for a timeline of Chinalsquos internet history

UNHRC 12 of 44

Victims included those writing about Liu Xiaobo the imprisoned human rights defender who

received the Nobel Peace Prize in 201039

According to statistics over 80 of Chinas netizens rely mainly on the Internet for news 40

With this state of affairs and increasing dependence the world over on the internet as a major

source of information discussing information monopolies is crucial To isolate a country of over

a billion and deny it access to information in the age of technology may not seem a palpable

physical or otherwise contravention of human rights however its consequences are

tremendous While one may think that media censorship is restricted to dictatorial regimes the

case of China serves to refute that line of thought Media censorship is prevalent even in

countries as varied as Indonesia India Mexico and Russia ndash all of whom rank relatively low on

the Press Freedom Index41

Looking at instances worldwide and the justifications given for

restricting rights will be a useful direction to take while researching

The following website is a useful tool to check the status of websites in China

httpwwwgreatfirewallofchinaorg

Political Prisoners in China and Illegal Detention

Political prisoners are those whose imprisonment is carried out arbitrarily on contestable and

controversial grounds Governments detain certain individuals on the basis of allegedly valid

grounds which are not always disclosed or declared Many detainees charge existence of ulterior

motives or extrajudicial reasons on part of the state for their detention The phenomenon of

political prisoners is often associated with closed regimes such as Burma and the DPRK

However the Peoplelsquos Republic of China too does not escape scrutiny when the topic of political

prisoners is at hand The phenomenon of political prisoners resonates so loudly in the

international spheres particularly because governments deny the existence of political prisoners

they claim that all detainees are lawfully held under criminal law The unfair detainment of

persons or the capture of people to serve the interests of a government contravenes many human

rights including freedom of expression association and assembly Indeed a countrylsquos political

imprisonment record is one of the crucial indicators of its human rights situation

Amnesty International views political prisoners as prisoners of conscience These are more

specifically ―people who have been jailed because of their political religious or other

conscientiously-held beliefs ethnic origin sex color language national or social origin

economic status birth sexual orientation or other status42

39

httpwwwcpjorgreports201105the-10-tools-of-online-oppressorsphp 40

httpchinaorgcngovernmentwhitepapernode_7093508htm 41

httpenrsforgpress-freedom-index-20101034html 42

httpwwwamnestyusaorgour-workissuesprisoners-and-people-at-riskprisoners-of-conscience

UNHRC 13 of 44

According to the (US) Congressional Executive Commission on China over 5000 cases of

politically or religiously motivated imprisonments have been made It has detailed documented

information on the status of 1452 of these prisoners and

notes that its information is far from complete and that the

true story of Chinalsquos political prisoners remains unknown 43

The plight of political prisoners in China is speculated upon

by various international organizations Among these is the

Human Rights Watch which has gone as far as labeling the

locations for holding political prisoners ―black jails and

―alleyways in hell Officially though the Chinese

government denies the existence of political prisoners Subsequent to Chinalsquos Universal Periodic

Review an outcome report was published which came under fire from various sides The Human

Rights Watch called the substance of the report to be ―manifestly so far removed from reality

that [it] would immediately discredit anybody that adopted them in a report 44

In the report of

the UNHRC Working Group subsequent to Chinalsquos UPR it is stated that the Chinese

government does not use ―state secrets to suppress human rights defenders 45

It is precisely this

situation that our simulation wishes to remedy discussion should be fact based

The ground realities are different In 2010 Chinese activist and human rights defender Mr Liu

Xiaobo was awarded the Nobel Peace Prize He was jailed by Chinese authorities for

distributing his ―Charter 08 a document that called for freedom of expression and of assembly

among other things The government incarcerated him for an 11 year time-period on the charge

of subversion Subsequent to the prize the Chinese government came down hard on other human

rights activists Indeed those celebrating the awarding of the prize to Mr Xiaobo were arrested

arbitrarily While distributing fliers celebrating the win many were imprisoned on the grounds of

―inciting subversion of state power The Report of the Special Rapporteur on the situation of

human rights defenders published in 2011 makes mention of these facts46

The Chinese

government labeled the award an ―obscenity It is vague allegations such as these that allow

governments to thwart dissidents As expected though according to the report of the HRC

Working Group No individual or press has been penalized for voicing their opinions or

views47

When discussing China and political prisoners it is important to mention the Falun Gong

movement It is a spiritual variant of Buddhism and originated in China on the basis of the

teachings of its founder Li Hongzhi The movement was supported within the Chinese

43

httpwwwceccgovpagesvictims20101010_PPD_AR10pdfPHPSESSID=705596c0e91f35e392e6f0ecbb78d6

7c 44

httpwwwhrworgennews20090610human-rights-watch-statement-upr-outcome-report-china 45

httpdaccess-dds-nyunorgdocUNDOCGENG0916299PDFG0916299pdfOpenElement 46

httpwww2ohchrorgenglishissuesdefendersdocsAHRC1644Add1_EFSonlypdf Page 63 47

httpdaccess-dds-nyunorgdocUNDOCGENG0916299PDFG0916299pdfOpenElement Para 71

UNHRC 14 of 44

officialdom initially However Falun Gonglsquos popularity within the masses as well as its

independence from the state and its spiritual teachings was soon perceived as a threat to the

government By the late 1990lsquos the Chinese government cracked down on the movement and

labeled it as a heretical organization Chinese legislation uses the expression ―Xiejiao zuzhi to

refer to a wide range of sectarian or unorthodox religious groups which do not meet official

approval The Falun Gong movement is included in this list48

The Falun Gong followers are the

worldlsquos largest group of prisoners of conscience The PRC often picks up practitioners and

accuses them of ―using an evil cult to destroy implementation of the law 49

China with its strict non-religious government did not take kindly to this new movement that

had garnered millions of followers both within China and internationally between 1992 and the

crackdown in 1999 Today Falun Gong is practiced freely in more than 70 countries around the

world with clubs and associations existing in a range of settings50

Beginning at the turn of the

millennium the authorities started to ban access to websites that contained material about the

movement Indeed a search on the movement on Chinalsquos Xinhua News Agency website will

even today yield nothing (It may be an interesting experiment for delegates to conduct) Those

who reported the initial crackdown were ―followed detained interrogated and threatened

according to a letter written in 1999 by The Foreign Correspondents Club (FCC) of China51

The Falun Gong movementlsquos official website deals with its persecution thus The complex

rationale behind the persecution can be broken into four elements a paranoid dictators fear of

Falun Gongs meteoric growth and soaring popularity that same dictators intense jealousy of

Falun Dafas popularity the inherent conflict between the communist regimes savage political

ideology and its polar oppositemdashFalun Dafas principles of Truthfulness Benevolence

Forbearance and the very nature of communism which to sustain itself requires periodically

labeling a small segment of the population as the class enemy to struggle against52

The Chinese crackdown on Falun Gong practitioners involved a ban on practicing it by the

Chinese Communist Party whose members as aforementioned were interestingly initially

adherents to the movement in significant numbers Indeed the party was divided from within

over their stance on the movement The government formulated an ―anti-cult law a few months

after issuing a warrant for the founderlsquos arrest ―During the first two years of the crackdown

between 150 and 450 group leaders and other members were tried for various crimes and

sentenced to prison terms of up to 18-20 years53

To this day ―central leaders turn a blind eye to

48

httpwwwamnestyorgenlibraryassetASA170112000en7a361a8e-df70-11dd-acaa-

7d9091d4638fasa170112000enhtml 49

httpwww2ohchrorgenglishissuesdefendersdocsAHRC1644Add1_EFSonlypdf 50

httpwwwfaluninfonettopic22 51

httpwwwamnestyorgenlibraryassetASA170112000en7a361a8e-df70-11dd-acaa-

7d9091d4638fasa170112000enhtml 52

httpwwwfalundafaorgengfaqshtmlpersecution 53

httpfpcstategovdocumentsorganization67820pdf Page 4

UNHRC 15 of 44

local methods of suppression against unrepentant practitioners including the reported use of

torture54

Also worth noting is the fact that Chinalsquos judicial system has been alleged to be anything but

conducive to providing justice to those using the system Indeed it is a repressive tool used by

the government to silence dissent China with its vast land mass and various provinces and

municipalities must work hard to keep its Centre strong Scores of individuals who are more

obscure than human rights activists and such are imprisoned by the government while ironically

seeking justice It has long been the custom for people of the countryside to seek justice in

Beijing if they felt that their local authorities had treated them unfairly However modern China

has not taken kindly to this tradition Local authorities are evaluated on the basis of the number

of complaints the Centre receives about them Thus they have a vested interest in thwarting the

reports of any complaints about them to Beijing Those who complain are whisked off to black

jails where ―detainees are denied access to legal counsel and in most cases contact with family

and friends They ―are kept under constant surveillance and subject to often arbitrary physical

and psychological abuse55

Chinalsquos record with regard to political prisoners and its tradition of suppressing dissent are

exacerbated by the sheer scale on which dissent is thwarted The aspect of potential torture of

prisoners further complicates the issue It is troubling that the issue of Chinese political prisoners

only gained international prominence with the case of Mr Liu Xiaobo It is not the only nation in

the world to adopt such strict policies in order to further its own ideology and the committee will

do well to ruminate upon how this tradition can be discontinued so as to allow people their

essential political freedoms

The Infringement of Rights in the Conflict with Tibet

Despite the furor that has been inconsistently directed towards its human rights record China

continues to impose tightening restrictions on rights of expression association and assembly

The Chinese government carries on devising social and economic changes that retain its firm

authority over its citizens which in turn enables a host of human rights violations In the context

of Tibet China has failed to address the grievances of the people there who have been made

victims of social discrimination and have unequal access to opportunities Scores of Tibetans are

marginalized and detained for their religious inclinations which are further suppressed by the

imposition of intense patriotic educationlsquo campaigns whereby socialism is furthered and all sorts

of religious or individualistic tendencies are thwarted

54

Ibid Page 5 55

httpwwwhrworgreports20091112alleyway-hell-0 Page 4

UNHRC 16 of 44

Despite its totalitarian approach China refuses to accept responsibility for the issue Instead it

blames westernlsquo forces for trying to instigate separatism56

The indifference on the part of

China with particular regard to Tibet is apparent with Chinese authoritieslsquo continuous rejection

of ―inconvenient requests by UN human rights experts for visits to the Tibet Autonomous

Region57

During 1912 and 1951 Tibet underwent a period of de facto independence58

While it was still

territorially a part of China it enjoyed relative freedom in its political discourse Tibetan

autonomy was confined within the context of Chinese suzerainty and should not be interpreted

as unrestrained political independence Since 1951 however the Chinese government has taken

steps to ensure its absolute and undeniable dominance over Tibet from which emanates the strife

under discussion Gross violations of human rights have taken place in China administered by

officials with the purpose of cultivating consent with regard to its control over the region

Suppression has led to the inevitable extensive discontent in Tibet a fury which was unleashed

in 2008 The Tibetan unrest of 2008 was a series of protests and demonstrations - not merely in

the Tibet Autonomous Region but elsewhere as well - that later transformed into rioting burning

looting and even killing59

The rioters set fire to state vehicles and clashed violently with the

police installed in the region The crackdown of Chinese authorities in response to the riots was

severe resulting in deaths on both sides and mass imprisonment by state authorities The degree

to which human rights were violated and abused during this crackdown cannot be overstated

The Chinese also revoked the freedom of sharing of information and imposed a ban on the entry

of media officials in the region to contain

information about the unrest and play down

protests60

A Tibetan Government in Exile has existed in India

since 1959 established by the 14th

Dalai Lama61

This Central Tibetan Administration considers the

issue as an illegitimate military occupation by the

Chinese state The Administration works with the

agendas of restoration of freedom in Tibet and rehabilitation of Tibetan refugees

Historical facts refute such a fallacy however The simple reality that the installation of the 14th Dalai Lama

needed the approval of the national government is sufficient proof that Tibet did not possess any independent power

during that period ndash (httpwwwchinaorgcne-whitetibet9-2htm)

56

httpwwwunhcrorgrefworldcountryAMNESTYCHN49b8dfc11a0html 57

Ibid 58

Grunfeld A Tom Reassessing Tibet Policy 2000 59

httpwwwnytimescom20080316worldasia16iht-tibet111134870html 60

Watts Jonathan Branigan Tania (March 18 2008) Tension rises as armed police mass in capital The

Guardian (London) Retrieved November 1 2011 61

httpwwwtibetnetenindexphpid=14

UNHRC 17 of 44

The censured freedom of expression is one of the multiple infringements on rights that are

imposed by China on Tibet Tibetans are denied the basic right to articulate their views through

political discourse Human rights activists advocate the freedom of speech for Tibetans under the

existing and future political arrangements Religious and political figures in Tibet are placed

under house arrest limiting their freedom of movement (in contradiction to article 13 of the

Universal Declaration of Human Rights)62

As was highlighted during the unrest in 2008 China

has often stripped the Tibetan population of its fundamental rights to associate and assemble In

2000 nine Tibetan prisoners in Kandze were charged for participating in a peaceful protest to

five-year prison terms in October 1999 (which were later increased to ten-year terms)63

This example leads us to another crop of abuse conducted overtly by Chinese authorities

arbitrary detention Article 9 of the Universal Declaration of Human Rights reads ―No one shall

be subjected to arbitrary arrest detention or exile64

Chinese law however permits authorities

to detain persons without formally arresting or charging them and persons may be sentenced

administratively to up to 3 years in reeducation-through-labor camps and other similar facilities

without a trial

Chinese authorities have been unresponsive to concerns expressed by the United Nations

Working Group on Arbitrary Detention No counter-explanation was given either over the case

of three Tibetans who had their sentences extended for staging a peaceful political protest during

the Working Groups visit to Drapchi in October 1997 despite international pressure65

Infinite

examples of arbitrary arrests and detentions exist in China international authorities have called

on China to cease this practice and release such detainees immediately absent evidence that they

have engaged in criminal acts No state can or should be able to hold anyone for engaging in

peaceful political activity All humans

should be granted internationally recognized

due-process protections which includes the

right to be informed of the charges leveled

against them66

The question of whether

these detainees are given an impartial trial if

one at all is not even raised

In addition to the arrests carried out in

violation of international law there are

grave evidences of abuses during detention

62

httpwwwhrworgnews20000612human-rights-violations-tibet 63

Ibid 64

httpwwwunorgendocumentsudhr 65

httpwwwhrworgnews20000612human-rights-violations-tibet 66

httpwwwhrworgnews20000612human-rights-violations-tibet

UNHRC 18 of 44

Incidences of beatings at time of arrest and torture (including the administration of electric

shocks and deprivation of food and medical treatment)67

during custody are widely reported

These are not isolated cases rather the product of a holistic policy of dealing with political

dissidents In one notable incident in May 1998 political prisoners in Drapchi staged major

protests to coincide with a visit from a European Union delegation The protests were non-

violent but the authorities reaction was severe several protestors were shot at and one monk

Lobsang Gelek subsequently died68

The Convention Against Torture (CAT ratified by China in 1988) requires the state to prevent

torture and punish those in violation of the law China has not amended its own laws to comply

with even the first article of CAT69

Such practices explicitly stand in contempt of Article 5 of

the Universal Declaration of Rights which censures the use of torture or cruel treatment as

punishment Dr Manfred Nowak the UN Special Rapporteur on Torture stated that ―he was

struck by the strictness of prison discipline and a palpable level of fear and self-censorship when

talking to detainees following his brief assessment of Chinese and Tibetan prisons in 200570

The committee will be looked upon to review ways in which the situation can be monitored more

carefully and what responses if any can be cultivated to impede similar future actions by

China

The continued violations of religious freedom and implementation of policies designed to

diminish religious practices by the State to serve its political needs is a cause of concern Again

referring to the Universal Declaration of Human Rights Article 18 reads ―Everyone has the right

to freedom ofhellipreligion this right includes freedomhellipto manifest his religion or belief in

teaching practice worship and observance71

The policies implemented by Chinese authorities

through use of coercion violent repression and imprisonment impinge upon the freedom of

Tibetans to practice their religion freely China has also strictly enforced re-education programs

for dissident factors within the state The program is aimed at ―combating separatism protecting

stability and promoting development and is intended to reform the political ideology of people

who refuse to accept state control of what they perceive as vital aspects of their religious lives

and beliefs The committee will be expected to deliberate upon the protection of religious

freedom and practices of individuals as well as the validity of these re-education programs in

light of human rights and liberties

Tibet is not the only region where political tensions surrounding autonomy run high The

Kosovo-Serbian conflict is pertinent to recall The Republic of Kosovo declared itself to be an

independent entity on February 17 2008 As of 11 October 2011 85 UN states recognize the

independence of Kosovo However Serbia maintains that Kosovo is a UN governed entity under

67

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 68

httpwwwfreetibetorgabouttorture 69

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 70

Ibid 71

httpwwwunorgendocumentsudhr

UNHRC 19 of 44

its sovereignty Russia and China are among those who do not recognize the Republic while the

USA UK and France have recognized Kosovolsquos declaration of independence This highlights the

rift between the United Nations Security Council over the issue The case of Tibet is all the more

important in light of the fact that many such pockets exist in the world struggling for self-

determination

Media Links

httpwwwfreetibetorgnewsmedia2008-protests-summary

httpwwwguardiancoukworldgallery2008mar19tibetchinapicture=333178281ampindex=7

Chinarsquos Violation of Ethnic Minority Rights

One of the greatest blemishes on Chinalsquos human rights record is in the area of ethnic minorities

and the extent to which China protects ethnic minority rights On paper Chinalsquos policies are

based on ethnic equality and regional ethnic autonomy Ethnic minorities are supposed to be

benefitting from preferential policies in the political economic cultural and educational spheres

However the ground realities are infinitely different Questions have been raised over the extent

to which the government fairly provides services to these minorities and allocates resources

equally to them The Chinese government is seen to largely prefer its Han majority The

minorities claim they are exploited for their resources and in turn not even provided with the

same level of social services as the Han people China is an atheistic government and the fact

that many ethnicities garner their identity in major part from their religious affiliation leads to a

precarious situation The Mongols Tibetans and Uighurs all come to mind when discussing the

issue of China and ethnic minority rights

―Everyone is entitled to all the rights and freedoms set forth in this Declaration without

distinction of any kind such as race colour sex language religion political or other opinion

national or social origin property birth or other status Furthermore no distinction shall be

made on the basis of the political jurisdictional or international status of the country or

territory to which a person belongs whether it be independent trust non-self-governing or

under any other limitation of sovereignty

- Article 2 Universal Declaration of Human Rights

The International Convention on the Elimination of Racial Discrimination defines racial

discrimination as any distinction exclusion restriction or preference based on race colour

descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the

recognition enjoyment or exercise on an equal footing of human rights and fundamental

UNHRC 20 of 44

freedoms in the political economic social cultural or any other field of public life72

It is due to

this that the international community has adopted the norm of subsuming ethnicity under the

terminology of race

―The Peoples Republic of China is a united multi-ethnic country So far 56 ethnic groups have

been identified and recognized by the central government The population of various ethnic

groups differs greatly While the Han ethnic group has the largest population and that of the

other 55 ethnic groups is relatively small so they are customarily referred to as ethnic

minoritieslsquo According to the fifth national census conducted in 2000 the population of all the

55 ethnic minority groups totaled 10449 million accounting for 841 percent of the total

population of China73

Chinas official 55 minorities are located primarily in the south west

and north of China Only Tibet and Xinjiang have a majority population of official minorities

while all other provinces municipalities and regions of China have a Han majority

One of Chinalsquos autonomous regions is the Xinjiang Uighur Autonomous Region (XUAR)

located in western China The area is vast accounting for one sixth of Chinalsquos land and houses

around 13 major ethnicities including the Uighurs who are a predominantly Muslim people with

origins in Central Asia The Uighurs have had strained ties with the state and have often resisted

Chinese authority74

In turn the Chinese government has reacted sometimes violently against

restless factions in the region One of the most passive aggressive forms of response on the part

of the Peoplelsquos Republic has been the encouragement of the migration of the Han people ndash

Chinalsquos ethnic majority ndash to the XUAR75

Around 90 of Xinjiangs population comprised of

Uighurs in 1949 now it is estimated that Uighurs make up only about 45 of the population76

The policies in Xinjiang are said to be designed to ―promote economic development not

demographic change In reality though the influx of migrants has amplified Uighur discontent

as Han and Uighurs compete over limited jobs and natural resources77

The United Stateslsquo

Congressional-Executive Commission on China reported that in 2006 the XPCC (Xinjiang

Production and Construction Core) reserved approximately 800 of 840 civil servant job openings

for Han Chinese78

One of the causes of the Han monopoly in the employment sector is the

linguistic advantage afforded to them and perpetuated by the education system As part of its

efforts to implicitly impose a unified culture the language policy was altered by the state with

an increased focus on use of Mandarin in schools at the expense of the local languages

Methods of education special to the ethnic peoples of the XUAR including the Muslim Uighurs

are suppressed For example a campaign by the PRC in 2001 targeted religious teachers and

72

httpwww2ohchrorgenglishlawcerdhtm 73

httpenglishgovcnofficial2005-0728content_18127htm 74

httpwwwcfrorgchinaeast-turkestan-islamic-movement-etimp9179 75

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p8 76

httpnewsbbccouk2hiasia-pacific3330803stm 77

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p4 78

httpwwwcolumbiaeducunewsclips20080801UighursTWPOSTpdf

UNHRC 21 of 44

endeavored to sever ties between mosques and groups involved in allegedly ―separatist

activities Around 8000 imams were required to undergo ―political reeducation in this regard

and become ―patriotic religious personalities Ethnic minorities are educated in ways that do not

allow them to learn their own languages or practice their own religion In 2001 for example a

Muslim girl was expelled from school for praying 79

Moreover in an attempt to further its socialist agenda and bind ethnic minorities together

minority cultural activities are often hindered In its place nationalistic values are given a

premium and integrated into society so as to tie the entire country in a unified Chinese foldlsquo

Resultantly an asymmetry with regards to the provision of services and protection of cultural

identity can be found in almost every ethnic minority region in the country The repression

against minorities has wider implications on the human rights situation for all This leads to

creation of a vindictive attitude among the minorities not only against the government but also

the Han majority

In July 2009 this attitude manifested itself in

the form of severe riots between the Han and

Uighur communities in Xinjianglsquos capital city

Urumqi Ethnic tensions elevated to the point

that police involvement was made necessary

According to Chinese state media at least 150

people were killed and more than 800 were

injured The riots were reportedly sparked by a

Uighur protest over the ethnically motivated

killing of two Uighur workers in the southern

province of Guangdong

On the topic of allegations of separatism it is interesting to note that post 911 it has been noted

that the Chinese government has used concerns about terrorism as a method for suppressing

ethnic activity This is possible through the characterization of certain ethnicities as having

fundamental leanings The Muslim Uighurs fell under fire for this very reason after the

September 2001 attacks

One of the ways that the Chinese government with its Han leanings has asserted its presence in

the region is through the smokescreen of the XPCC The Peoplelsquos Liberation Army and the

XPCC are present in the region per the government to ―consolidate border defense accelerate

79

wwwminorityrightsorgdownloadphpid=29 Page 30

UNHRC 22 of 44

Xinjianglsquos development and reduce the economic burden on local governments and the local

people of all ethnic groups80

The heavy militarization of ethnic minority

regions also enables the Chinese government

to quickly respond to skirmishes between the

minorities and the Han For example clashes

between the Uighurs and the Han in the

XUAR are quickly clamped down upon The

response by Chinese authorities always

focuses on the minority groups in the region

The typical response includes a period of

strike hardlsquo security measures during which the minorities are subjected to police patrols of

crowded areas identity checks street searches increased criminal investigations and accelerated

trials The measures also include mandatory political indoctrination classes for the Uighur

population Swift Chinese response to ethnic dissidence precludes the possibility of trying

protestersrioters under due process This phenomenon also contributes to the controversy of

China and its policy of arbitrary imprisonment

Essential to any countrylsquos social progress is the protection and provision of the basic rights to all

its citizens For a country like China which has a significant standing in the international

community the degree to which human rights are upheld comes under added scrutiny Minorities

need to be guaranteed provision of not only fundamental rights but additional ones that grant

them equal opportunities

Recent Developments

3 November 2010 UN Secretary General pushes China on human rights

Ban Ki-moon the United Nations secretary general has called on China to respect human rights

after critics accused him of dodging the issue on a trip to Beijing The UN secretary general met

Hu Jintao the Chinese president but failed to challenge Mr Hu on the imprisonment of Liu

Xiaobo the democracy activist who was awarded this years Nobel Peace prize and raise the

issue of human rights81

80

httpwwwchinaorgcne-white200305269htm 81

httpwwwtelegraphcouknewsworldnewsasiachina8107148UN-Secretary-General-pushes-China-on-human-

rightshtml

UNHRC 23 of 44

5 November 2011 Yeqing Ji from Shanghai China will most likely not be able to have children

after she said two forced abortions physically impaired her uterus82

8 September 2011 The Chinese government has renewed Googlelsquos license to allow it to

continue operating its local website in the country83

13 November 2011 Seven months ago

Chinese police detained the countrylsquos most prominent artist Ai Weiwei at the airport and drove

him to a hidden location It was the beginning of what is to be a two-and-a-half month nightmare

for the architect and sculptor who is also a former darling of the Communist Party who later

turned into an outspoken government critic Ai was held on vague charges of economic crimes

was kept in isolation and subjected to Kafka-esque interrogations84

April 19 2011 Amnesty International a 21-year-old monk Phuntsog set himself on fire in an

apparent anti-government protest in March 2011 Instead of putting out the flames Chinese

police beat the young monk creating huge resentment in the monastery85

At least 11 ethnic

Tibetans have been detained for protesting against the event and against government policies

They are at risk of torture and other ill-treatment86

29 May 2011 300 Tibetan monks detained in Kirti monastery by Chinese security forces87

15 September 2011 Chinese Uighurs economic fears

Amid ethnic tensions minority regards modernization plans in Xinjiang as favoring Han Chinese

migrants88

20 November 2011 Another of Chinalsquos minorities the Hui Muslims in Ningxia do not feel

stigmatized

―There is an important reason why Hui and Han Chinese get along with each other Unlike

Muslims of the other ethnic minorities like Uighur Kazakh Kyrgyz and Tajik the Hui Muslims

speak Mandarin just like the Hans89

82

httpabcnewsgocomBusinesswoman-china-forced-abortions-leaves-unable-

childrenstoryid=14880884Tsia7LIk6so 83

httpwwwbbccouknewsbusiness-14832392 84

httpwwwthedailybeastcomnewsweek20111113ai-weiwei-speaks-out-on-his-detentionhtml 85

httphradvorgaggregatorsources10 86

httpwwwamnestyorgenlibraryassetASA170212011end75f7611-be66-4d5a-9391-

c80c43501d56asa170212011enhtml 87

httphumanrightshouseorgArticles16503html 88

httpwwwaljazeeracomvideoasia20110920119158016969449html 89

httpwwwtodayszamancomnews-263322-chinas-hui-muslims-do-not-feel-stigmatizedhtml

UNHRC 24 of 44

Conclusion

The United Nations Human Rights Council at LUMUN 2012 will be looked upon to provide a

framework for the resolution of these issues in a universal context The scope of the issues

should be expanded and applied to countries other than China The committee will have to make

recommendations which have universal application and resolve all aspects of the issue

comprehensively For any queries related to the study guide please do contact either (or both)

the committee directors at the given addresses

UNHRC 25 of 44

Topic Area B Abolishing the Death Penalty

Introduction to the Topic Area

The death penalty is formally defined as the execution of an offender sentenced to death after

conviction by a court of law of a criminal offenselsquo90

The concept of a capital crime is subjective

and states have made use of this practice in response to multiple forms of crime The use of the

death penalty has produced much controversy with regard to its apparent violation of

fundamental human rights as delineated in the Universal Declaration of Human Rights and

subsequent human rights charters and treaties It is asserted that the use of death penalty is in

contravention to the peopleslsquo right to life promised to every individual under Article 3 of the

Declaration91

Moreover Article 2 of the Charter of Fundamental Rights of the European Union

lucidly bars the imposition of death penalty as a form of punishment92

Arguments against the

use of death penalty are also made on the grounds of inhumane methods which are employed to

see out the process Historically multiple methods have been used which include death by

hanging severing of the head lethal injection shooting and electrocution93

94

As a response states have made keen efforts to abolish

the death penalty particularly in the last two decades as

can be interpreted from the graph on the right which

represents the number of states that have abolished the

death penalty Countries belonging to the European

region with the exclusion of Russia and Belarus have

sought to revoke the use of the practice The death

penalty is most commonly seen to be a formal practice

in most of the developing countries The trend is

apparent in Latin America Africa and Asia

96 countries have formally abandoned the use of death penalty 58 countries allow the use95

Other states have abolished the penalty in practice but the laws remain in place for the

imposition of the penalty as a response to certain crimes The imposition of the death penalty has

90

httpwwwbritannicacomEBcheckedtopic93902capital-punishment 91

httpwwwunorgendocumentsudhr 92

httpwwweuroparleuropaeucharterpdftext_enpdf 93

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffle

re-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 94

httpwwwdeathpenaltyinfoorgmethods-execution 95

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf

Figure 1 (Drag to enlarge)

UNHRC 26 of 44

seen a decline over the recent years with a fall in the number of executions that take place

annually It would however be incorrect to assume that the practice is not prevalent or widely in

effect Amnesty International reported that at least 2024 new death sentences were imposed in 67

countries in 2010 Moreover there were at least 17833 people sentenced to death worldwide at

the end of 201096

Again these are minimum figures which are the safest that can be inferred

from the given research There were 527 known executions carried out in 2010 globally97

This

figure however does not include the number of executions that took place in China where

analysts believe that more than a thousand people were put to death in the past year

The statistics represent the number of people executed through capital punishment One way to

formally define capital punishment is to regard it as the state sanctioned killing of an individual

through a judicial process as a punishment for a crime (defined as a capital crime by the state)98

Capital punishment is the most obvious and prevalent manifestation of the death penalty It is

often perceived as a statelsquos right in order to preserve law and order against any individual who

engages in serious crimes that threaten other individuals or the state Those who advocate against

the use of capital punishment label it as a symptom of a culture of violence not a solution to

itlsquo99

The controversy surrounding the topic is based on the legal ethical and moral acceptability

of the statelsquos right to an individuallsquos life The debate entails several social and economic factors

some of which will be reviewed in closer detail in the relevant section of this guide

One of the most striking aspects related to the issue is the imposition of the capital punishment

on juveniles The sentencing of juveniles to death is in clear breach of international law The

morality and validity of such a practice is often called into question and has been put under

relentless scrutiny despite all of which the practice is still carried out in a number of countries

Historically the United States China and Iran have the worst records relating to juvenile death

sentences100

The study guide also includes a separate section for the case of juveniles in which

the legal and social aspects of the problems are detailed

As stated states have made use of the death penalty to punish crimes of varying natures The use

of the death penalty is reserved for only the most seriouslsquo crimes as put forth in international

law101

The notion of a capital crime however is a subjective one states that have doled out

death sentences have defined it differently In certain countries the death penalty is only used to

charge criminals accused of war crimes In other countries the penalty is reserved for crimes like

96

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf 97

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010 98

httpusersrcncommwooddeathpenhtml 99

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 100

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 101

httpwwwunorgdocumentsecosocdocs1995e1995-78htm

UNHRC 27 of 44

murder rape or even robbery States also use the death penalty against individuals who are guilty

of treason The issue however is that many states practicing the death penalty impose the

punishment even when the crimes do not meet the threshold for the aforementioned most

seriouslsquo crimes The ability of states to define what constitutes as a capital crime has led to states

abusing their powers as has been observed in the sentences ordained by military courts

Moreover even the radicals who make the argument of the punishment fitting the crime agree

that in many instances individuals have been executed for softlsquo crimes crimes that were

certainly not tantamount to charges of murder or crimes against humanity The issue of apparent

violations of human rights is further exacerbated in these instances The study guide will discuss

the universal crimes that have resulted in the awarding of the death penalty and examine the

issue further The committee will be expected to discuss the feasibility of drawing up an

international definition of crimes which in isolated instances perhaps may be appropriate for a

sentence like the death penalty

Another pertinent aspect surrounding the debate is that of extrajudicial killings The execution of

a person by state authorities without the authority of a judicial proceeding is termed as an

extrajudicial killing Many states have used extrajudicial killings to establish their authority and

order without having to wade through the legal process By doing so they have deprived scores

of people of their fundamental right to free and fair trials Governments have also employed this

tactic to exercise political aggression and to suppress dissent A particular point of concern is the

fact that some states have made use of these killings even when they have officially revoked the

imposition of the death penalty Extrajudicial killings are carried out persistently in many

countries ndash the list includes countries like Iran Iraq Israel Philippines102

Most recently the

killing of Anwar al-Awlaki and Samir Khan in Yemen by a sanctioned National Security Council

move by the USA was an example of states embarking on such paths to eliminate threats to

national securitylsquo103

102

Multiple citations for each country can be found in the second paragraph article titled Extrajudicial killinglsquo on

Wikipedia 103

httpwwwtelegraphcouknewsworldnewsbarackobama7564581Barack-Obama-orders-killing-of-US-cleric-

Anwar-al-Awlakihtml

UNHRC 28 of 44

Wrongful convictions lead many to believe in the inherent incapacity of the death penalty to

serve justice On September 21 2011 US citizen Troy Davis was executed in Georgia after

which seven of the nine witnesses who testified against him in the case that led to his execution

recounted or retracted their evidences A petition with nearly one million signatures was put

forth to reconsider his case it was rejected On the same day a 17 year old boy was publicly

hanged in Iran for killing a popular athlete his justification based on self-defense was ignored

Also on the same day a Pakistani national was executed in China on grounds of drug trafficking

an offence that does not often result in capital punishment The need for the resolution of this

issue is pressing and the committee needs to deal with all aspects of the problem in a

comprehensive and enduring manner104

Capital Punishment

In 2010 23 countries implemented capital punishment A total of 527 executions (plus the 1000+

carried out in China alone) were known to have taken place with Iran Yemen USA and North

Korea meting out a significant number of sentences105

The figure is lower than the records

computed for years past There are more states which are now abolitionist either in law or in

practice with regard to the imposition of the punishment Gabon was officially the last country

to rescind the practice while bills calling for an end to capital punishment have been presented

to parliaments in Lebanon Mali Mongolia and South Korea106

Renewed efforts are

104

httpwwwamnestyorgennews-and-updatesus-executes-death-row-prisoner-troy-davis-2011-09-21 105

httpwwwguardiancouknewsdatablog2011mar29death-penalty-countries-world 106

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010

UNHRC 29 of 44

simultaneously being made on the international front to implement laws against capital

punishment A third resolution establishing a moratorium on the use of death penalty passed the

UN General Assembly on December 21 2010107

Despite the increasing momentum towards an eventual elimination of the practice the number of

executions taking place annually is a cause of major concern Advocates of the death penalty

assert that the practice is an effective means of deterring crime in society Public executions are

often held in Iran Afghanistan and Palestine for example to demonstrate the fate awaiting

those who commit similar crimes108

Arguments are made on the grounds of justice that it is

proper and fair to take an eye for an eye and a life for a life and that some individuals deserve

it for the crimes they commit

Those opposing the practice question the morality of an action sanctioned by the state which

endorses deprivation of the right to life a fundamental human right under the Universal

Declaration of Human Rights109

There are inescapable flaws within legal systems which are

aggravated by discrimination prosecutorial misconduct and inadequate legal representation

Moreover the risk of executing the innocent can never be eliminated110

An alternative is

presented in the form of imprisonment for life without parole which results in a parallel debate

is imprisonment for life a viable surrogate to the practice of death penalty A thread from this

debate also relates to the economic feasibility of carrying out a death sentence as opposed to the

feasibility of imprisonment for life

Deterrence

Capital punishment is often propagated as an adequate approach in the deterrence and prevention

of crime The logic is that if murderers are sentenced to death potential murderers will think

twice before killing for fear of losing their own life The deterrence theory presumes that the

once the punishment for a certain crime is established the criminal by committing the crime

voluntarily assumes the risk of receiving the prescribed punishment for the crime Only when the

most severe punishment has been set will there be a possibility of an individual evaluating their

actions in light of the consequences111

107

httpwwwundemocracycomA-RES-62-149pdf 108

httpwwwamnestyorgennews-and-updatessharp-rise-public-executions-iran-executes-first-juvenile-

offenders-2011-2011-04-27 109

wwwunorgendocumentsudhr 110

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 111

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 30 of 44

The death penalty it is asserted ensures that convicted criminals do not offend again moreover

it is deemed to be a just penalty for atrocious crimes It is further alleged that many criminals

who are set free even after lengthy sentences regress and go on to commit heinous crimes

Therefore there should never be the possibility of a release clause112

The deterrence theory is modeled on the grounds of human psychology logic and rationale As a

professor of jurisprudence Ernest van den Haag PhD wrote ―Common sense lately bolstered

by statistics tells us that the death penalty will deter murder if anything can People fear nothing

more than death Therefore nothing will deter a criminal more than the fear of death These

statements were further validated by a US Supreme Court Justice who said on record that

Prima facie the penalty of death is likely to have a stronger effect as a deterrent to normal

human beings than any other form of punishmentlsquo113

Numerous studies have been conducted on

the subject with varying results One of the most established studies was conducted in USA

using a panel data set of over 3000 counties from 1977 to 1996 which concluded that on

average one death sentence resulted in 18 fewer murders114

Delegates will be expected to be

familiar with other similar studies

These studies are commonly refuted as not crediblelsquo by opponents of the capital punishment

who also deny the correlation between crime and death penalty as a fabricated relationship which

cannot be empirically established115116

A study of the relationship between capital punishment

and the incidence of murder was conducted for the UN in 1988 and updated in 2002 The

conclusion was ―The investigation has not provided scientific proof that executions have more

deterrent effect than life imprisonment It is unlikely that such evidence will ever come

Deterrence hypothesis finds no support in the survey117

Another counter-argument asserts that crime is still a persistent feature of the societies that

continue to award the death penalty while many of the abolitionist states enjoy low crime rates

This can be evidenced by comparing the crime rate in USA or Pakistan with that of Canada or

some European state In Canada for example the homicide rate per 100000 fell from a peak of

309 in 1975 the year before the abolition of the death penalty for murder to 241 in 1980 and

in 2003 27 years after abolition the homicide rate was 173 per 100000 44 per cent lower than

in 1975118

112

httpwwwdeathpenaltyinfoorgfacts-about-deterrence-and-death-penalty 113

httpdeathpenaltyproconorgviewresourcephpresourceID=002000 114

httpdeathpenaltyproconorgsourcefilesThe20Deterrent20Effect20of20Capital20Punishmentpdf ndash

Delegates should carefully examine certain parts of this document to establish the credibility of the assertions made

They should also invest in trying to locate studies that refute the assertions made in this and similar studies 115

httpwwwdeathpenaltyinfoorglaw-enforcement-views-deterrencelawenforcement 116

httpwwwdeathpenaltyinfoorgDonohueDeterpdf 117

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 118

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml

UNHRC 31 of 44

The lack of evidence on the production of a unique deterrent effect points to the danger of

relying on the deterrence hypothesis as a basis for public policy on the death penalty

Retribution amp Morality

An important terminology that delegates need to familiarize themselves with is that of

―retributivism119

It is defined as ―a policy of criminal justice that sponsors the punishment of

criminals in retribution for the harm they have inflicted120

Criminals deserve to be punished in

proportion to the gravity of their crime regardless of whether the victim or anyone else desires

it we may all deeply regret having to carry out the punishment but consider it warrantedlsquo is

what many say in defense of the theory121

The need for the establishment of a visibly just state arises from the potential risks of not having

one As has been visible in many developing countries with shaky legal systems when criminals

are not adequately punished for their unlawful behavior the public takes the law into its own

hands and deals out vigilante justice It is asserted that retributivism is essential for a functioning

society where individuals respect the supremacy of law

The concept of retribution in society is also grounded in religious beliefs The concept of an eye

for an eye has been a part of all three Abrahamic traditions However in the modern world it is

Islamic nations that still retain the practice based on these grounds Similar traditions can be

found in Hinduism Christianity and Buddhism as well as other religions in different parts of the

world In many non-secular countries the constitutions and state laws are derived from religious

doctrines

Opponents dismiss this aspect of the argument as being emotionally charged with little rational

logic to support the contention They claim that the establishment of capital punishment gives

birth to a culture of violence endorsed by the state It perpetuates the cycle of aggression and

brutality something which the state should be actively inhibiting not endorsing

Wrongful Convictions

The death penalty carries with it the danger of wrongfully convicting an innocent person for

crimes he did not commit There is the potential for capital punishment to evolve into sheer

miscarriage of justice as in certain circumstances states are often seen to rush the trials and

convict the accused hastily This practice takes foremost apparently in military courts often in

119

Cavadino M amp Dignan J (1997) The Penal System An Introduction (2nd ed) p 39 London Sage 120

httpdictionaryreferencecombrowseretributivism 121

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 32 of 44

the developing or lesser-developed countries where the system of law is not properly established

It is not however exclusive to these countries Examples can be drawn from countries like

Philippines Thailand Iran and Palestine to name just a few where executions are carried out at

alarming pace removing the possibility of reviews

On 15 August 2004 Atefah Rajabi Sahaaleh was hanged in a public square in the Iranian city of

Neka Her death sentence was imposed for adultery and crimes against chastity122123

Atefah

was executed a week after the trial was run Following the execution the Judge for the case was

arrested for investigation by the Intelligence Ministry The media reported that in addition to the

confession of his rape of Atefeh Judge Rezai who served as judge jury and executioner also

confessed to torturing her during interrogations to extract names of others she had relations with

No transcripts from court proceedings were recorded The State alleged that Atefah was 22 at the

time of her execution A witness later claimed The judge just looked at her body because of

the developed physique and declared her as 22124

ndash her birth certificate revealed she was born

in 1988 Furthermore Atefah did not have access to a proper defense where she could contest

charges leveled against her This is one example of many such cases of miscarriage of justice

Something that recurs in these cases is the failure of the police or prosecuting authorities to

prevent the use of unreliable witnesses the misuse of evidence or confessions and the provision

of inadequate defense representation The advent of DNA profiling and the use of it as positive

evidence in criminal cases has resulted in the exoneration of multiple death row inmates on

grounds of forensic evidence or lack thereof Since 1973 138 people have been released from

death row in the United States after it was proven that they were innocent125

In 2009 Paul

House was cleared of murder and exonerated in Tennessee USA after having served 22 years

on death row His innocence was proclaimed in light of substantial additional DNA testing and

further investigationlsquo 126

Amnesty International has noted examples of wrongful convictions from elsewhere as well

including Jamaica Japan China Nigeria and Tanzania127

Paul G Cassell a former law clerk to

the Chief Justice of USA stated the mistaken release of guilty murderers should be of far greater

concern than the speculative and heretofore nonexistent risk of the mistaken execution of an

innocent personlsquo highlighting the case made by those who advocate the death penalty even in

light of wrongful convictions128

122

httpwwwcosmolearningcomdocumentariesexecution-of-a-teenage-girl1 123

httpnewsbbccouk2hi5217424stm 124

httpnewsbbccouk2hi5217424stm 125

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 126

httparticlescnncom2009-05-13justicetennesseeexonerated_1_death-row-inmate-dna-evidence-house-

arrest_s=PMCRIME 127

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 128

httpdeathpenaltycurriculumorgstudentcaboutargumentstestimony3bhtm

UNHRC 33 of 44

Alternative to Death Penalty

All abolitionist states have reverted to the practice of sentencing criminals to life imprisonment

(some without parole) which is also termed as death by incarceration Widely regarded as a more

humane course of action life imprisonment is also alleged to be a more economical practice

While ensuring public safety by keeping criminals away from society this system also saves the

lives of innocent people who have been falsely or wrongfully convicted The setup inhibits and

curbs the cycle of violence while retaining the deterrence factor it is strongly asserted

Advocates for the death penalty are averse towards life imprisonment for a number of reasons

They cite the unreliability of the system as one of the flaws which impedes the possibility of

such a sentence being successful A certain James Moore serves as a valid example in this case

In 1962 James Moore raped and strangled 14-year-old Pamela Moss The victimlsquos parents opted

out of capital punishment for Moore and he was instead sentenced to life in prison without

parole Twenty years later a change in sentencing laws in 1982 renders James Moore eligible for

parole every two years129130

Kenneth McDuff is another example McDuff was convicted and sentenced to life imprisonment

Years later due to the issue of overcrowding in prisons McDuff was released following which

he killed eight more people McDufflsquos example is of an individual from a developed country

with an established legal system in place131

Overcrowding is a feature of prisons in developing

or lesser developed countries In many such states criminals have also been known to easily

break out from penitentiaries

The economic aspect of the debate is murky at best There is a lack of empirical data on the

subject which is why the arguments of both these sides cannot be settled beyond doubt

Advocates of capital punishment insist that the overall costs of the practice are far lesser than the

costs of housing an inmate for a lifetime132

They also suggest that the life imprisonment allows

criminals to conceive new habeas corpus petitions which on legal grounds cannot be rejected

automatically resulting in more trials

On the other hand substantial arguments are made which stress that the cost of legal proceedings

in capital cases is in truth more than that of other cases States and nations spend a significant

portion of the taxpayerlsquos money in meting out such punishments133

Delegates when addressing

this portion of the debate will need to be aware of the financial aspects of the issue as it forms

for many states an important part of whether capital punishment should be revoked or

not

129

httpwesleylowecomcphtmldeter 130

httpwwwnytimescomkeywordparole 131

httpwesleylowecomcphtmldeter 132

Ibid ndash view section titled Capital Punishment and its costslsquo 133

httpwwwamnestyusaorgour-workissuesdeath-penaltyus-death-penalty-factsdeath-penalty-cost

UNHRC 34 of 44

Imposition of Death Penalty on Juveniles

The prohibition on the death penalty for crimes committed by juvenile offendersmdashpersons under

age 18 at the time of the offensemdashis well established in international law specifically in the

Convention on the Rights of Child

ldquoNo child shall be subjected to torture or other cruel inhuman or degrading treatment or

punishment Neither capital punishment nor life imprisonment without possibility of release shall

be imposed for offences committed by persons below eighteen years of agerdquo134

- Article 37(a) Convention on the Rights of Child

ldquoSentence of death shall not be imposed for crimes committed by persons below eighteen years

of age and shall not be carried out on pregnant womenrdquo135

- Article 6(5) International Covenant on Civil and Political Rights

The treaties are a unanimously agreed set of non-negotiable standards and obligations By

acceding to the treaties and ratifying them governments commit to protecting and ensuring

childrens rights and to holding themselves accountable for this commitment before the

international community

Even though the practice of capital punishment on juveniles is relatively rare however in clear

contravention of international law nine countries have executed offenders who were juveniles at

the time of their crimes between 1990 and 2005136

These countries include the Peoples Republic

of China (PRC) the Democratic Republic of the Congo Iran Nigeria Pakistan Saudi Arabia

Sudan the United States and Yemen137

The USA has since moved to implement a ban on capital

punishment for juveniles However in most other countries of the preceding list the practice is

still enshrined in the judicial system Iranlsquos record in particular has been abominable over the last

decade It has carried out 39 executions of persons under the age of 18 since 2005 Presently

over a hundred individuals are placed on death row for crimes committed as juveniles The

executions of Mahmoud Asgari Ayaz Marhoni and Makwan Moloudzadeh became international

symbols of Irans child capital punishment and the judicial system that hands down such

134

httpwww2ohchrorgenglishlawcrchtm 135

httpwww2ohchrorgenglishlawccprhtm 136

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf - This document by the Human Rights Watch

called The Last Holdoutslsquo is a good summary of juvenile executions and should be reviewed 137

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 - Contains a list with

statistics and details of countries which have allowed the imposition of death sentence to juveniles

UNHRC 35 of 44

sentences138139140

Saudi Arabia and China too have questionable records that need to be

scrutinized further

While regional treaties and charters usually substantiate international law the Arab Human

Rights Charter of 2004 is unique among regional and international treaties in that the ban on the

juvenile death penalty in it is not absolute but merely optional141

Furthermore national laws in states that observe such a practice are in violation of

international legally-binding charters In Iran and Saudi Arabia laws usually treat a child the

same way as an adult criminal offender would be treated Article 10(3) of the International

Covenant on Civil and Political Rights emphasizes the need for demarcation between the

handling of children and that of adults in stating ―Juvenile offenders shall be segregated from

adults and be accorded treatment appropriate to their age and legal status142

The definition of a child in these Muslim states is unclear as adulthood is associated with

attainment of puberty which is a relative concept The Committee on the Rights of the Child in

January 2005 censured the Saudi government for its practice of imposing the death penalty on

juveniles terming it a serious violation of the fundamental rights The committee was deeply

alarmed over the discretionary power judges hold to treat juveniles as adults as was stated in

the committeelsquos report Iran too was strongly condemned following the release of an

international report highlighting the dire situation in Iran by the International for Human Rights 143

138

httpwwwfoxnewscomstory0293329798200html 139

httpnewsbbccouk2himiddle_east7130380stm 140

httpenwikipediaorgwikiCapital_punishmentIran 141

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 142

httpwww2ohchrorgenglishlawccprhtm 143

httpwwwfidhorgIMGpdfRapport_Iran_finalpdf

UNHRC 36 of 44

On August 19 2008 Iranian authorities executed Seyyed Reza Hejazi at Isfahan Central Prison

for his role in a murder committed in 2003 when he was 15 Hejazi was tried as an adult by

Branch 106 of the Isfahan General Court even if he did not qualify as one under international

stipulations and sentenced to death on November 14 2005144

In Saudi Arabia Mu`id bin

Husayn bin Abu al-Qasim bin `Ali Hakami was executed on July 10 2007 for a murder he

allegedly committed three years earlier when he was 13 years old145

The judges in these states

because of the implementation of the Sharialsquo law have a large amount of discretion with regard

to their rulings This discretion is often abused in the interrogation and judicial proceedings In

Pakistan authorities hanged Mutaber Khan in Peshawar Central Prison on June 13 2006 on

charges of murder of five people The fact that he was held in the juvenile wing of Peshawar

Central prison and the evidence presented by the accused confirming that his age was below 18

at the time of the killings were not taken into account during the trials and Mutaber was charged

as an adult in the case146

While the above does not cover exhaustively the practice of capitally punishing juveniles the

committee is expected to be well read on the matter The committee will be required to devise

ways to strictly apply the existing international law on the subject to curtail further deaths of

juveniles by states A series of recommendations on better implementation of international

covenants will be expected from the committee Delegates at UNHRC will also have to

familiarize themselves with the stipulations in the national laws of countries practicing juvenile

death penalties (Iran Saudi Arabia Pakistan Nigeria Sudan Yemen and UAE among others) to

discuss how these states are constitutionally able to bend international law and mete out the

illegal punishments

144

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 145

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 146

See FIDH and Human Rights Commission of Pakistan ―Slow march to the gallows and ―Condemned Prisoner

Executed Dawn Newspaper Karachi June 14 2005 httpwwwdawncom20060614nat16htm

UNHRC 37 of 44

Universality of Laws Incurring the Death Penalty

In countries which have not abolished the death penalty capital punishment may be imposed

only for the most serious crimes it being understood that their scope should not go beyond

intentional crimes with lethal or other extremely grave consequences

- Safeguards guaranteeing protection of the rights of those facing the death penalty147

Laws incurring the death penalty or capital crimes have certain uniformity the world over This

is of course barring states that are religiously affiliated and whose law systems are not secular

in nature The list of capital crimes for those states with non-secular legal systems is slightly

different The Human Rights Commission had decided that the imposition in the State party of

the death penalty for offences which cannot be characterized as the most serious including

apostasy committing a third homosexual act illicit sex embezzlement by officials and theft by

force are incompatible with Article 6 of the Covenant Economic offences including

embezzlement drug related offences political offences and robbery were also referred to148

The reason why looking into capital crimes and trying to garner a global impression of them is

important is that the death penalty can only realistically be abolished in a piecemeal way This

process will entail shortening the list of capital crimes The UN formally notes that ―in order

fully to guarantee the right to life provided for in article 3 of the Universal Declaration of

Human Rights the main objective to be pursued is that of progressively restricting the number of

offences for which capital punishment may be imposed with a view to the desirability of

abolishing this punishment in all countries149

The first established death penalty laws date as far back as the Eighteenth Century BC in the

Code of King Hammaurabi of Babylon which codified the death penalty for 25 different crimes

By the 1700s 222 crimes were punishable by death in Britain including stealing cutting down a

tree and robbing a rabbit warren In the 19th

century the death penalty was eliminated for over

100 of the 222 crimes punishable by death 150

In modern times the UN Special Rapporteur on

extrajudicial summary or arbitrary executions has stated that the death penalty should be

eliminated for economic crimes and drug-related offences and that the restrictions to its use

―exclude the possibility of death sentences for so-called victimless offences ndash including acts of

treason espionage and other vaguely defined acts usually described as crimes against the Statelsquo

or disloyaltylsquo and ―actions primarily related to prevailing moral values such as adultery and

prostitution as well as matters of sexual orientation151

147

httpwww2ohchrorgenglishlawpdfprotectionpdf 148

httpwwwunhchrchtbsdocnsf0bc310a747155dff88025655300537faeOpendocument 149

General Assembly resolution 2857 httpwwwunodcorgpdfcompendiumcompendium_2006_part_01_05pdf 150

httpdeathpenaltycurriculumorgstudentcabouthistoryhistoryPDF 151

httpswwwabofimedia24259report10pdf

UNHRC 38 of 44

Contrary to the made recommendations even political dissent warrants a death sentence in

several countries most notably in China and Iran In 2010 nearly 20 Kurdish people were

executed for political offences in Iran The country is known for keeping dissent especially from

the Kurds suppressed Most are executed on the grounds of moharebeh or enmity against God

Moreover challenging the power of the Ayatollah is also punishable by death These charges are

neither explicit nor in line with international guidelines over what crimes are punishable

capitally In Iran judges must handle such cases carefully as Iranian law provides for only one

punishment if an individual is found to be guilty of treason Libya too thwarts political dissent

with firm laws in place for punishing by death those who illegally form groups organizations or

associations against the state152

Saudi Arabia too is worth note for its vaguely phrased laws governing capital punishment

Intentional murder and crimes that spread ―mischief in the land (Fasad fil-ardh) merit death In

2010 the government announced that it had executed 26 people all by beheading Crimes that

―spread mischief include witchcraft and sorcery153

How is one convicted of witchcraft in the

21st century What can the international community do when regarding countries such as these

Treason arguably along with murder is the capital crime that has yet to be phased out by many

countries In some such as Brazil treason during warfare is the only crime for which a person

can be sentenced to death In the Gaza Strip under Hamas any sort of cooperation with Israeli

forces during military actions is also punishable by death In others including Algeria Bahrain

Iran and Malaysia treason is punishable by death in all circumstances The United States too has

federal laws governing treason under which traitors ―shall suffer death154

Child sex abuse is another crime that is widely held to merit the death penalty In Russia for

example according to the Russian Public Opinion Research Center an overwhelming majority

consider the death penalty to be an acceptable punishment especially in relation to molestation

155 In 2009 however Russias Constitutional Court effectively abolished the death penalty by

extending indefinitely a 13-year-old moratorium on capital punishment156

Indonesia has some of the strictest penalties for drug related crimes in the world Roughly half of

those on death row are incriminated with drug-related charges157

In 2008 though the most high

profile executions were of terrorists Three of those found responsible for the 2002 Bali

bombings were executed by shooting158

Generally speaking however a significant proportion of

152

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 153

httpwwwstategovgdrlrlshrrpt2010nea154472htm 154

httpdeathpenaltyproconorgviewresourcephpresourceID=1172 155

httpenrianrutrenddeath_penalty 156

httpwwwreuterscomarticle20091119idUSLJ330478 157

httpwwwnytimescom20080711worldasia11iht-indo114421132html 158

httpnewsbbccouk2hiasia-pacific7718246stm

UNHRC 39 of 44

the executions or death sentences recorded (in 2010) in China Egypt Indonesia Iran Laos

Libya Thailand United Arab Emirates and Yemen were for drug-related offences In December

2010 the amended Anti-Narcotics law came into force in Iran extending the scope of the death

penalty to include additional categories of illegal drugs (for example crystal meth) possession

of which became punishable by death Also around the same time the National Assembly of

Gambia voted to extend the scope of the death penalty by making the possession of more than

250g of heroin or cocaine an offence punishable by death159

Several states allow for the death penalty for crimes of blasphemy and other crimes for

nonviolent expression and association In Pakistan Aasia Bibi a Christian mother of five was

charged with blasphemy and sentenced to death after a trial largely believed to be unfair on 8

November 2010 She is currently on death row The country is also noted for its laws concerning

capital crimes The list includes 27 crimes most of which go beyond the notion of ―most serious

crimes as recommended by the International Covenant on Civil and Political Rights Extra-

marital sex and blasphemy are examples of some capital crimes in the country In December

2007 Pakistan voted against a United Nation General Assembly resolution for a moratorium on

the death penalty The year before however the nation amended its law on rape and adultery

charges which are no longer punishable by death160

As far back as 1989 recommendations have been made as to how to abolish the death penalty

Member states (of the UN) have been urged ―to publish for each category of offence for which

the death penalty is authorized and if possible on an annual basis information about the use of

the death penalty including the number of persons sentenced to death the number of executions

actually carried out the number of persons under sentence of death the number of death

sentences reversed or commuted on appeal and the number of instances in which clemency has

been granted and to include information on the extent to which the safeguards referred to above

are incorporated in national law161

The committee must inspect how far this recommendation

has been adopted and should seek to rectify the weaknesses in the system of gradually

abolishing the death penalty Can a target year be designated by which crimes meriting the death

penalty could be made universal How can countries with non-secular legal systems be brought

into the fold of international law

159

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 160

httpwwwfiacatorgenIMGpdfdppakistan-enpdf 161

httpgraduateinstitutechfacultyclaphamhrdocdocsecosocresolutiondeathpen1989html

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 15: UNHRCFINAL

UNHRC 11 of 44

in 2008 by the Information Office of the State Council the internet is a ―crystallization of human

wisdom and ―Chinese citizens fully enjoy freedom of speech on the internet 35

Chinalsquos policies have relevance beyond

their contravention of what may seem to be

abstract principles China has jailed the

largest number of internet dissidents the

world over The case of Liu Shaokun for

example is a notable one He was a

teacher in Sichuan province which had

been hit in 2008 by a ravaging earthquake

around the time of the Summer Olympics

in Beijing China had been praised for

allowing reporters to openly cover the

earthquake Much of this openness however was part of a bid to soothe the international

community and project Beijinglsquos image as being the perfect venue for the Olympics Shaokun

however was sentenced to a year of labor for posting photographs of schools affected by the

earthquake He is among countless others who have been silenced36

When the Arab Spring flowered over the Middle East China cracked down on many social

networking sites to curb pro-democracy sentiments Amongst these was LinkedIn blocked over

the fact that one of its users had mentioned the possibility of a ―Jasmine Revolution in China37

The government blocks discussions about the Dalai Lama the Tiananmen Square protests and

the Falun Gong spiritual movement among other things In April of 2007 the Chinese version of

MySpace launched but lacked discussion forums centered on the aforementioned topics among

others including Taiwanlsquos independence In 2010 Google considered withdrawing its services

from China after a spur of cyber-attacks on email accounts of human rights activists 38

Google

and the government reached a deal whereby Google operated by Chinese guidelines within

mainland China However Google has a non-censored operation running in Hong Kong to

which it started routing customers in 2010 when it had concerns over Google accounts being

hacked by authorities It is testament to Chinese control that companies such as Google are

forced to enter the internet market on its terms Other instances of well renowned internet

websites being blocked or affronted include Twitter being banned during the 20th

anniversary of

the Tiananmen killings

The Committee to Protect Journalists ranks China as one of the worst internet censors The

Chinese government has been alleged of carrying out ―spear-phishing whereby spying software

disguised as legitimate emails is installed on computers that belong invariably to journalists

35

httpchinaorgcngovernmentwhitepapernode_7093508htm 36

httpcpjorgreports201012cpj-journalist-prison-census-iran-china-highest-14-yearsphp 37

httpwwwbbccouknewstechnology-12586462 38

httpnewsbbccouk2hi8460129stm Please look at this link for a timeline of Chinalsquos internet history

UNHRC 12 of 44

Victims included those writing about Liu Xiaobo the imprisoned human rights defender who

received the Nobel Peace Prize in 201039

According to statistics over 80 of Chinas netizens rely mainly on the Internet for news 40

With this state of affairs and increasing dependence the world over on the internet as a major

source of information discussing information monopolies is crucial To isolate a country of over

a billion and deny it access to information in the age of technology may not seem a palpable

physical or otherwise contravention of human rights however its consequences are

tremendous While one may think that media censorship is restricted to dictatorial regimes the

case of China serves to refute that line of thought Media censorship is prevalent even in

countries as varied as Indonesia India Mexico and Russia ndash all of whom rank relatively low on

the Press Freedom Index41

Looking at instances worldwide and the justifications given for

restricting rights will be a useful direction to take while researching

The following website is a useful tool to check the status of websites in China

httpwwwgreatfirewallofchinaorg

Political Prisoners in China and Illegal Detention

Political prisoners are those whose imprisonment is carried out arbitrarily on contestable and

controversial grounds Governments detain certain individuals on the basis of allegedly valid

grounds which are not always disclosed or declared Many detainees charge existence of ulterior

motives or extrajudicial reasons on part of the state for their detention The phenomenon of

political prisoners is often associated with closed regimes such as Burma and the DPRK

However the Peoplelsquos Republic of China too does not escape scrutiny when the topic of political

prisoners is at hand The phenomenon of political prisoners resonates so loudly in the

international spheres particularly because governments deny the existence of political prisoners

they claim that all detainees are lawfully held under criminal law The unfair detainment of

persons or the capture of people to serve the interests of a government contravenes many human

rights including freedom of expression association and assembly Indeed a countrylsquos political

imprisonment record is one of the crucial indicators of its human rights situation

Amnesty International views political prisoners as prisoners of conscience These are more

specifically ―people who have been jailed because of their political religious or other

conscientiously-held beliefs ethnic origin sex color language national or social origin

economic status birth sexual orientation or other status42

39

httpwwwcpjorgreports201105the-10-tools-of-online-oppressorsphp 40

httpchinaorgcngovernmentwhitepapernode_7093508htm 41

httpenrsforgpress-freedom-index-20101034html 42

httpwwwamnestyusaorgour-workissuesprisoners-and-people-at-riskprisoners-of-conscience

UNHRC 13 of 44

According to the (US) Congressional Executive Commission on China over 5000 cases of

politically or religiously motivated imprisonments have been made It has detailed documented

information on the status of 1452 of these prisoners and

notes that its information is far from complete and that the

true story of Chinalsquos political prisoners remains unknown 43

The plight of political prisoners in China is speculated upon

by various international organizations Among these is the

Human Rights Watch which has gone as far as labeling the

locations for holding political prisoners ―black jails and

―alleyways in hell Officially though the Chinese

government denies the existence of political prisoners Subsequent to Chinalsquos Universal Periodic

Review an outcome report was published which came under fire from various sides The Human

Rights Watch called the substance of the report to be ―manifestly so far removed from reality

that [it] would immediately discredit anybody that adopted them in a report 44

In the report of

the UNHRC Working Group subsequent to Chinalsquos UPR it is stated that the Chinese

government does not use ―state secrets to suppress human rights defenders 45

It is precisely this

situation that our simulation wishes to remedy discussion should be fact based

The ground realities are different In 2010 Chinese activist and human rights defender Mr Liu

Xiaobo was awarded the Nobel Peace Prize He was jailed by Chinese authorities for

distributing his ―Charter 08 a document that called for freedom of expression and of assembly

among other things The government incarcerated him for an 11 year time-period on the charge

of subversion Subsequent to the prize the Chinese government came down hard on other human

rights activists Indeed those celebrating the awarding of the prize to Mr Xiaobo were arrested

arbitrarily While distributing fliers celebrating the win many were imprisoned on the grounds of

―inciting subversion of state power The Report of the Special Rapporteur on the situation of

human rights defenders published in 2011 makes mention of these facts46

The Chinese

government labeled the award an ―obscenity It is vague allegations such as these that allow

governments to thwart dissidents As expected though according to the report of the HRC

Working Group No individual or press has been penalized for voicing their opinions or

views47

When discussing China and political prisoners it is important to mention the Falun Gong

movement It is a spiritual variant of Buddhism and originated in China on the basis of the

teachings of its founder Li Hongzhi The movement was supported within the Chinese

43

httpwwwceccgovpagesvictims20101010_PPD_AR10pdfPHPSESSID=705596c0e91f35e392e6f0ecbb78d6

7c 44

httpwwwhrworgennews20090610human-rights-watch-statement-upr-outcome-report-china 45

httpdaccess-dds-nyunorgdocUNDOCGENG0916299PDFG0916299pdfOpenElement 46

httpwww2ohchrorgenglishissuesdefendersdocsAHRC1644Add1_EFSonlypdf Page 63 47

httpdaccess-dds-nyunorgdocUNDOCGENG0916299PDFG0916299pdfOpenElement Para 71

UNHRC 14 of 44

officialdom initially However Falun Gonglsquos popularity within the masses as well as its

independence from the state and its spiritual teachings was soon perceived as a threat to the

government By the late 1990lsquos the Chinese government cracked down on the movement and

labeled it as a heretical organization Chinese legislation uses the expression ―Xiejiao zuzhi to

refer to a wide range of sectarian or unorthodox religious groups which do not meet official

approval The Falun Gong movement is included in this list48

The Falun Gong followers are the

worldlsquos largest group of prisoners of conscience The PRC often picks up practitioners and

accuses them of ―using an evil cult to destroy implementation of the law 49

China with its strict non-religious government did not take kindly to this new movement that

had garnered millions of followers both within China and internationally between 1992 and the

crackdown in 1999 Today Falun Gong is practiced freely in more than 70 countries around the

world with clubs and associations existing in a range of settings50

Beginning at the turn of the

millennium the authorities started to ban access to websites that contained material about the

movement Indeed a search on the movement on Chinalsquos Xinhua News Agency website will

even today yield nothing (It may be an interesting experiment for delegates to conduct) Those

who reported the initial crackdown were ―followed detained interrogated and threatened

according to a letter written in 1999 by The Foreign Correspondents Club (FCC) of China51

The Falun Gong movementlsquos official website deals with its persecution thus The complex

rationale behind the persecution can be broken into four elements a paranoid dictators fear of

Falun Gongs meteoric growth and soaring popularity that same dictators intense jealousy of

Falun Dafas popularity the inherent conflict between the communist regimes savage political

ideology and its polar oppositemdashFalun Dafas principles of Truthfulness Benevolence

Forbearance and the very nature of communism which to sustain itself requires periodically

labeling a small segment of the population as the class enemy to struggle against52

The Chinese crackdown on Falun Gong practitioners involved a ban on practicing it by the

Chinese Communist Party whose members as aforementioned were interestingly initially

adherents to the movement in significant numbers Indeed the party was divided from within

over their stance on the movement The government formulated an ―anti-cult law a few months

after issuing a warrant for the founderlsquos arrest ―During the first two years of the crackdown

between 150 and 450 group leaders and other members were tried for various crimes and

sentenced to prison terms of up to 18-20 years53

To this day ―central leaders turn a blind eye to

48

httpwwwamnestyorgenlibraryassetASA170112000en7a361a8e-df70-11dd-acaa-

7d9091d4638fasa170112000enhtml 49

httpwww2ohchrorgenglishissuesdefendersdocsAHRC1644Add1_EFSonlypdf 50

httpwwwfaluninfonettopic22 51

httpwwwamnestyorgenlibraryassetASA170112000en7a361a8e-df70-11dd-acaa-

7d9091d4638fasa170112000enhtml 52

httpwwwfalundafaorgengfaqshtmlpersecution 53

httpfpcstategovdocumentsorganization67820pdf Page 4

UNHRC 15 of 44

local methods of suppression against unrepentant practitioners including the reported use of

torture54

Also worth noting is the fact that Chinalsquos judicial system has been alleged to be anything but

conducive to providing justice to those using the system Indeed it is a repressive tool used by

the government to silence dissent China with its vast land mass and various provinces and

municipalities must work hard to keep its Centre strong Scores of individuals who are more

obscure than human rights activists and such are imprisoned by the government while ironically

seeking justice It has long been the custom for people of the countryside to seek justice in

Beijing if they felt that their local authorities had treated them unfairly However modern China

has not taken kindly to this tradition Local authorities are evaluated on the basis of the number

of complaints the Centre receives about them Thus they have a vested interest in thwarting the

reports of any complaints about them to Beijing Those who complain are whisked off to black

jails where ―detainees are denied access to legal counsel and in most cases contact with family

and friends They ―are kept under constant surveillance and subject to often arbitrary physical

and psychological abuse55

Chinalsquos record with regard to political prisoners and its tradition of suppressing dissent are

exacerbated by the sheer scale on which dissent is thwarted The aspect of potential torture of

prisoners further complicates the issue It is troubling that the issue of Chinese political prisoners

only gained international prominence with the case of Mr Liu Xiaobo It is not the only nation in

the world to adopt such strict policies in order to further its own ideology and the committee will

do well to ruminate upon how this tradition can be discontinued so as to allow people their

essential political freedoms

The Infringement of Rights in the Conflict with Tibet

Despite the furor that has been inconsistently directed towards its human rights record China

continues to impose tightening restrictions on rights of expression association and assembly

The Chinese government carries on devising social and economic changes that retain its firm

authority over its citizens which in turn enables a host of human rights violations In the context

of Tibet China has failed to address the grievances of the people there who have been made

victims of social discrimination and have unequal access to opportunities Scores of Tibetans are

marginalized and detained for their religious inclinations which are further suppressed by the

imposition of intense patriotic educationlsquo campaigns whereby socialism is furthered and all sorts

of religious or individualistic tendencies are thwarted

54

Ibid Page 5 55

httpwwwhrworgreports20091112alleyway-hell-0 Page 4

UNHRC 16 of 44

Despite its totalitarian approach China refuses to accept responsibility for the issue Instead it

blames westernlsquo forces for trying to instigate separatism56

The indifference on the part of

China with particular regard to Tibet is apparent with Chinese authoritieslsquo continuous rejection

of ―inconvenient requests by UN human rights experts for visits to the Tibet Autonomous

Region57

During 1912 and 1951 Tibet underwent a period of de facto independence58

While it was still

territorially a part of China it enjoyed relative freedom in its political discourse Tibetan

autonomy was confined within the context of Chinese suzerainty and should not be interpreted

as unrestrained political independence Since 1951 however the Chinese government has taken

steps to ensure its absolute and undeniable dominance over Tibet from which emanates the strife

under discussion Gross violations of human rights have taken place in China administered by

officials with the purpose of cultivating consent with regard to its control over the region

Suppression has led to the inevitable extensive discontent in Tibet a fury which was unleashed

in 2008 The Tibetan unrest of 2008 was a series of protests and demonstrations - not merely in

the Tibet Autonomous Region but elsewhere as well - that later transformed into rioting burning

looting and even killing59

The rioters set fire to state vehicles and clashed violently with the

police installed in the region The crackdown of Chinese authorities in response to the riots was

severe resulting in deaths on both sides and mass imprisonment by state authorities The degree

to which human rights were violated and abused during this crackdown cannot be overstated

The Chinese also revoked the freedom of sharing of information and imposed a ban on the entry

of media officials in the region to contain

information about the unrest and play down

protests60

A Tibetan Government in Exile has existed in India

since 1959 established by the 14th

Dalai Lama61

This Central Tibetan Administration considers the

issue as an illegitimate military occupation by the

Chinese state The Administration works with the

agendas of restoration of freedom in Tibet and rehabilitation of Tibetan refugees

Historical facts refute such a fallacy however The simple reality that the installation of the 14th Dalai Lama

needed the approval of the national government is sufficient proof that Tibet did not possess any independent power

during that period ndash (httpwwwchinaorgcne-whitetibet9-2htm)

56

httpwwwunhcrorgrefworldcountryAMNESTYCHN49b8dfc11a0html 57

Ibid 58

Grunfeld A Tom Reassessing Tibet Policy 2000 59

httpwwwnytimescom20080316worldasia16iht-tibet111134870html 60

Watts Jonathan Branigan Tania (March 18 2008) Tension rises as armed police mass in capital The

Guardian (London) Retrieved November 1 2011 61

httpwwwtibetnetenindexphpid=14

UNHRC 17 of 44

The censured freedom of expression is one of the multiple infringements on rights that are

imposed by China on Tibet Tibetans are denied the basic right to articulate their views through

political discourse Human rights activists advocate the freedom of speech for Tibetans under the

existing and future political arrangements Religious and political figures in Tibet are placed

under house arrest limiting their freedom of movement (in contradiction to article 13 of the

Universal Declaration of Human Rights)62

As was highlighted during the unrest in 2008 China

has often stripped the Tibetan population of its fundamental rights to associate and assemble In

2000 nine Tibetan prisoners in Kandze were charged for participating in a peaceful protest to

five-year prison terms in October 1999 (which were later increased to ten-year terms)63

This example leads us to another crop of abuse conducted overtly by Chinese authorities

arbitrary detention Article 9 of the Universal Declaration of Human Rights reads ―No one shall

be subjected to arbitrary arrest detention or exile64

Chinese law however permits authorities

to detain persons without formally arresting or charging them and persons may be sentenced

administratively to up to 3 years in reeducation-through-labor camps and other similar facilities

without a trial

Chinese authorities have been unresponsive to concerns expressed by the United Nations

Working Group on Arbitrary Detention No counter-explanation was given either over the case

of three Tibetans who had their sentences extended for staging a peaceful political protest during

the Working Groups visit to Drapchi in October 1997 despite international pressure65

Infinite

examples of arbitrary arrests and detentions exist in China international authorities have called

on China to cease this practice and release such detainees immediately absent evidence that they

have engaged in criminal acts No state can or should be able to hold anyone for engaging in

peaceful political activity All humans

should be granted internationally recognized

due-process protections which includes the

right to be informed of the charges leveled

against them66

The question of whether

these detainees are given an impartial trial if

one at all is not even raised

In addition to the arrests carried out in

violation of international law there are

grave evidences of abuses during detention

62

httpwwwhrworgnews20000612human-rights-violations-tibet 63

Ibid 64

httpwwwunorgendocumentsudhr 65

httpwwwhrworgnews20000612human-rights-violations-tibet 66

httpwwwhrworgnews20000612human-rights-violations-tibet

UNHRC 18 of 44

Incidences of beatings at time of arrest and torture (including the administration of electric

shocks and deprivation of food and medical treatment)67

during custody are widely reported

These are not isolated cases rather the product of a holistic policy of dealing with political

dissidents In one notable incident in May 1998 political prisoners in Drapchi staged major

protests to coincide with a visit from a European Union delegation The protests were non-

violent but the authorities reaction was severe several protestors were shot at and one monk

Lobsang Gelek subsequently died68

The Convention Against Torture (CAT ratified by China in 1988) requires the state to prevent

torture and punish those in violation of the law China has not amended its own laws to comply

with even the first article of CAT69

Such practices explicitly stand in contempt of Article 5 of

the Universal Declaration of Rights which censures the use of torture or cruel treatment as

punishment Dr Manfred Nowak the UN Special Rapporteur on Torture stated that ―he was

struck by the strictness of prison discipline and a palpable level of fear and self-censorship when

talking to detainees following his brief assessment of Chinese and Tibetan prisons in 200570

The committee will be looked upon to review ways in which the situation can be monitored more

carefully and what responses if any can be cultivated to impede similar future actions by

China

The continued violations of religious freedom and implementation of policies designed to

diminish religious practices by the State to serve its political needs is a cause of concern Again

referring to the Universal Declaration of Human Rights Article 18 reads ―Everyone has the right

to freedom ofhellipreligion this right includes freedomhellipto manifest his religion or belief in

teaching practice worship and observance71

The policies implemented by Chinese authorities

through use of coercion violent repression and imprisonment impinge upon the freedom of

Tibetans to practice their religion freely China has also strictly enforced re-education programs

for dissident factors within the state The program is aimed at ―combating separatism protecting

stability and promoting development and is intended to reform the political ideology of people

who refuse to accept state control of what they perceive as vital aspects of their religious lives

and beliefs The committee will be expected to deliberate upon the protection of religious

freedom and practices of individuals as well as the validity of these re-education programs in

light of human rights and liberties

Tibet is not the only region where political tensions surrounding autonomy run high The

Kosovo-Serbian conflict is pertinent to recall The Republic of Kosovo declared itself to be an

independent entity on February 17 2008 As of 11 October 2011 85 UN states recognize the

independence of Kosovo However Serbia maintains that Kosovo is a UN governed entity under

67

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 68

httpwwwfreetibetorgabouttorture 69

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 70

Ibid 71

httpwwwunorgendocumentsudhr

UNHRC 19 of 44

its sovereignty Russia and China are among those who do not recognize the Republic while the

USA UK and France have recognized Kosovolsquos declaration of independence This highlights the

rift between the United Nations Security Council over the issue The case of Tibet is all the more

important in light of the fact that many such pockets exist in the world struggling for self-

determination

Media Links

httpwwwfreetibetorgnewsmedia2008-protests-summary

httpwwwguardiancoukworldgallery2008mar19tibetchinapicture=333178281ampindex=7

Chinarsquos Violation of Ethnic Minority Rights

One of the greatest blemishes on Chinalsquos human rights record is in the area of ethnic minorities

and the extent to which China protects ethnic minority rights On paper Chinalsquos policies are

based on ethnic equality and regional ethnic autonomy Ethnic minorities are supposed to be

benefitting from preferential policies in the political economic cultural and educational spheres

However the ground realities are infinitely different Questions have been raised over the extent

to which the government fairly provides services to these minorities and allocates resources

equally to them The Chinese government is seen to largely prefer its Han majority The

minorities claim they are exploited for their resources and in turn not even provided with the

same level of social services as the Han people China is an atheistic government and the fact

that many ethnicities garner their identity in major part from their religious affiliation leads to a

precarious situation The Mongols Tibetans and Uighurs all come to mind when discussing the

issue of China and ethnic minority rights

―Everyone is entitled to all the rights and freedoms set forth in this Declaration without

distinction of any kind such as race colour sex language religion political or other opinion

national or social origin property birth or other status Furthermore no distinction shall be

made on the basis of the political jurisdictional or international status of the country or

territory to which a person belongs whether it be independent trust non-self-governing or

under any other limitation of sovereignty

- Article 2 Universal Declaration of Human Rights

The International Convention on the Elimination of Racial Discrimination defines racial

discrimination as any distinction exclusion restriction or preference based on race colour

descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the

recognition enjoyment or exercise on an equal footing of human rights and fundamental

UNHRC 20 of 44

freedoms in the political economic social cultural or any other field of public life72

It is due to

this that the international community has adopted the norm of subsuming ethnicity under the

terminology of race

―The Peoples Republic of China is a united multi-ethnic country So far 56 ethnic groups have

been identified and recognized by the central government The population of various ethnic

groups differs greatly While the Han ethnic group has the largest population and that of the

other 55 ethnic groups is relatively small so they are customarily referred to as ethnic

minoritieslsquo According to the fifth national census conducted in 2000 the population of all the

55 ethnic minority groups totaled 10449 million accounting for 841 percent of the total

population of China73

Chinas official 55 minorities are located primarily in the south west

and north of China Only Tibet and Xinjiang have a majority population of official minorities

while all other provinces municipalities and regions of China have a Han majority

One of Chinalsquos autonomous regions is the Xinjiang Uighur Autonomous Region (XUAR)

located in western China The area is vast accounting for one sixth of Chinalsquos land and houses

around 13 major ethnicities including the Uighurs who are a predominantly Muslim people with

origins in Central Asia The Uighurs have had strained ties with the state and have often resisted

Chinese authority74

In turn the Chinese government has reacted sometimes violently against

restless factions in the region One of the most passive aggressive forms of response on the part

of the Peoplelsquos Republic has been the encouragement of the migration of the Han people ndash

Chinalsquos ethnic majority ndash to the XUAR75

Around 90 of Xinjiangs population comprised of

Uighurs in 1949 now it is estimated that Uighurs make up only about 45 of the population76

The policies in Xinjiang are said to be designed to ―promote economic development not

demographic change In reality though the influx of migrants has amplified Uighur discontent

as Han and Uighurs compete over limited jobs and natural resources77

The United Stateslsquo

Congressional-Executive Commission on China reported that in 2006 the XPCC (Xinjiang

Production and Construction Core) reserved approximately 800 of 840 civil servant job openings

for Han Chinese78

One of the causes of the Han monopoly in the employment sector is the

linguistic advantage afforded to them and perpetuated by the education system As part of its

efforts to implicitly impose a unified culture the language policy was altered by the state with

an increased focus on use of Mandarin in schools at the expense of the local languages

Methods of education special to the ethnic peoples of the XUAR including the Muslim Uighurs

are suppressed For example a campaign by the PRC in 2001 targeted religious teachers and

72

httpwww2ohchrorgenglishlawcerdhtm 73

httpenglishgovcnofficial2005-0728content_18127htm 74

httpwwwcfrorgchinaeast-turkestan-islamic-movement-etimp9179 75

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p8 76

httpnewsbbccouk2hiasia-pacific3330803stm 77

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p4 78

httpwwwcolumbiaeducunewsclips20080801UighursTWPOSTpdf

UNHRC 21 of 44

endeavored to sever ties between mosques and groups involved in allegedly ―separatist

activities Around 8000 imams were required to undergo ―political reeducation in this regard

and become ―patriotic religious personalities Ethnic minorities are educated in ways that do not

allow them to learn their own languages or practice their own religion In 2001 for example a

Muslim girl was expelled from school for praying 79

Moreover in an attempt to further its socialist agenda and bind ethnic minorities together

minority cultural activities are often hindered In its place nationalistic values are given a

premium and integrated into society so as to tie the entire country in a unified Chinese foldlsquo

Resultantly an asymmetry with regards to the provision of services and protection of cultural

identity can be found in almost every ethnic minority region in the country The repression

against minorities has wider implications on the human rights situation for all This leads to

creation of a vindictive attitude among the minorities not only against the government but also

the Han majority

In July 2009 this attitude manifested itself in

the form of severe riots between the Han and

Uighur communities in Xinjianglsquos capital city

Urumqi Ethnic tensions elevated to the point

that police involvement was made necessary

According to Chinese state media at least 150

people were killed and more than 800 were

injured The riots were reportedly sparked by a

Uighur protest over the ethnically motivated

killing of two Uighur workers in the southern

province of Guangdong

On the topic of allegations of separatism it is interesting to note that post 911 it has been noted

that the Chinese government has used concerns about terrorism as a method for suppressing

ethnic activity This is possible through the characterization of certain ethnicities as having

fundamental leanings The Muslim Uighurs fell under fire for this very reason after the

September 2001 attacks

One of the ways that the Chinese government with its Han leanings has asserted its presence in

the region is through the smokescreen of the XPCC The Peoplelsquos Liberation Army and the

XPCC are present in the region per the government to ―consolidate border defense accelerate

79

wwwminorityrightsorgdownloadphpid=29 Page 30

UNHRC 22 of 44

Xinjianglsquos development and reduce the economic burden on local governments and the local

people of all ethnic groups80

The heavy militarization of ethnic minority

regions also enables the Chinese government

to quickly respond to skirmishes between the

minorities and the Han For example clashes

between the Uighurs and the Han in the

XUAR are quickly clamped down upon The

response by Chinese authorities always

focuses on the minority groups in the region

The typical response includes a period of

strike hardlsquo security measures during which the minorities are subjected to police patrols of

crowded areas identity checks street searches increased criminal investigations and accelerated

trials The measures also include mandatory political indoctrination classes for the Uighur

population Swift Chinese response to ethnic dissidence precludes the possibility of trying

protestersrioters under due process This phenomenon also contributes to the controversy of

China and its policy of arbitrary imprisonment

Essential to any countrylsquos social progress is the protection and provision of the basic rights to all

its citizens For a country like China which has a significant standing in the international

community the degree to which human rights are upheld comes under added scrutiny Minorities

need to be guaranteed provision of not only fundamental rights but additional ones that grant

them equal opportunities

Recent Developments

3 November 2010 UN Secretary General pushes China on human rights

Ban Ki-moon the United Nations secretary general has called on China to respect human rights

after critics accused him of dodging the issue on a trip to Beijing The UN secretary general met

Hu Jintao the Chinese president but failed to challenge Mr Hu on the imprisonment of Liu

Xiaobo the democracy activist who was awarded this years Nobel Peace prize and raise the

issue of human rights81

80

httpwwwchinaorgcne-white200305269htm 81

httpwwwtelegraphcouknewsworldnewsasiachina8107148UN-Secretary-General-pushes-China-on-human-

rightshtml

UNHRC 23 of 44

5 November 2011 Yeqing Ji from Shanghai China will most likely not be able to have children

after she said two forced abortions physically impaired her uterus82

8 September 2011 The Chinese government has renewed Googlelsquos license to allow it to

continue operating its local website in the country83

13 November 2011 Seven months ago

Chinese police detained the countrylsquos most prominent artist Ai Weiwei at the airport and drove

him to a hidden location It was the beginning of what is to be a two-and-a-half month nightmare

for the architect and sculptor who is also a former darling of the Communist Party who later

turned into an outspoken government critic Ai was held on vague charges of economic crimes

was kept in isolation and subjected to Kafka-esque interrogations84

April 19 2011 Amnesty International a 21-year-old monk Phuntsog set himself on fire in an

apparent anti-government protest in March 2011 Instead of putting out the flames Chinese

police beat the young monk creating huge resentment in the monastery85

At least 11 ethnic

Tibetans have been detained for protesting against the event and against government policies

They are at risk of torture and other ill-treatment86

29 May 2011 300 Tibetan monks detained in Kirti monastery by Chinese security forces87

15 September 2011 Chinese Uighurs economic fears

Amid ethnic tensions minority regards modernization plans in Xinjiang as favoring Han Chinese

migrants88

20 November 2011 Another of Chinalsquos minorities the Hui Muslims in Ningxia do not feel

stigmatized

―There is an important reason why Hui and Han Chinese get along with each other Unlike

Muslims of the other ethnic minorities like Uighur Kazakh Kyrgyz and Tajik the Hui Muslims

speak Mandarin just like the Hans89

82

httpabcnewsgocomBusinesswoman-china-forced-abortions-leaves-unable-

childrenstoryid=14880884Tsia7LIk6so 83

httpwwwbbccouknewsbusiness-14832392 84

httpwwwthedailybeastcomnewsweek20111113ai-weiwei-speaks-out-on-his-detentionhtml 85

httphradvorgaggregatorsources10 86

httpwwwamnestyorgenlibraryassetASA170212011end75f7611-be66-4d5a-9391-

c80c43501d56asa170212011enhtml 87

httphumanrightshouseorgArticles16503html 88

httpwwwaljazeeracomvideoasia20110920119158016969449html 89

httpwwwtodayszamancomnews-263322-chinas-hui-muslims-do-not-feel-stigmatizedhtml

UNHRC 24 of 44

Conclusion

The United Nations Human Rights Council at LUMUN 2012 will be looked upon to provide a

framework for the resolution of these issues in a universal context The scope of the issues

should be expanded and applied to countries other than China The committee will have to make

recommendations which have universal application and resolve all aspects of the issue

comprehensively For any queries related to the study guide please do contact either (or both)

the committee directors at the given addresses

UNHRC 25 of 44

Topic Area B Abolishing the Death Penalty

Introduction to the Topic Area

The death penalty is formally defined as the execution of an offender sentenced to death after

conviction by a court of law of a criminal offenselsquo90

The concept of a capital crime is subjective

and states have made use of this practice in response to multiple forms of crime The use of the

death penalty has produced much controversy with regard to its apparent violation of

fundamental human rights as delineated in the Universal Declaration of Human Rights and

subsequent human rights charters and treaties It is asserted that the use of death penalty is in

contravention to the peopleslsquo right to life promised to every individual under Article 3 of the

Declaration91

Moreover Article 2 of the Charter of Fundamental Rights of the European Union

lucidly bars the imposition of death penalty as a form of punishment92

Arguments against the

use of death penalty are also made on the grounds of inhumane methods which are employed to

see out the process Historically multiple methods have been used which include death by

hanging severing of the head lethal injection shooting and electrocution93

94

As a response states have made keen efforts to abolish

the death penalty particularly in the last two decades as

can be interpreted from the graph on the right which

represents the number of states that have abolished the

death penalty Countries belonging to the European

region with the exclusion of Russia and Belarus have

sought to revoke the use of the practice The death

penalty is most commonly seen to be a formal practice

in most of the developing countries The trend is

apparent in Latin America Africa and Asia

96 countries have formally abandoned the use of death penalty 58 countries allow the use95

Other states have abolished the penalty in practice but the laws remain in place for the

imposition of the penalty as a response to certain crimes The imposition of the death penalty has

90

httpwwwbritannicacomEBcheckedtopic93902capital-punishment 91

httpwwwunorgendocumentsudhr 92

httpwwweuroparleuropaeucharterpdftext_enpdf 93

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffle

re-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 94

httpwwwdeathpenaltyinfoorgmethods-execution 95

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf

Figure 1 (Drag to enlarge)

UNHRC 26 of 44

seen a decline over the recent years with a fall in the number of executions that take place

annually It would however be incorrect to assume that the practice is not prevalent or widely in

effect Amnesty International reported that at least 2024 new death sentences were imposed in 67

countries in 2010 Moreover there were at least 17833 people sentenced to death worldwide at

the end of 201096

Again these are minimum figures which are the safest that can be inferred

from the given research There were 527 known executions carried out in 2010 globally97

This

figure however does not include the number of executions that took place in China where

analysts believe that more than a thousand people were put to death in the past year

The statistics represent the number of people executed through capital punishment One way to

formally define capital punishment is to regard it as the state sanctioned killing of an individual

through a judicial process as a punishment for a crime (defined as a capital crime by the state)98

Capital punishment is the most obvious and prevalent manifestation of the death penalty It is

often perceived as a statelsquos right in order to preserve law and order against any individual who

engages in serious crimes that threaten other individuals or the state Those who advocate against

the use of capital punishment label it as a symptom of a culture of violence not a solution to

itlsquo99

The controversy surrounding the topic is based on the legal ethical and moral acceptability

of the statelsquos right to an individuallsquos life The debate entails several social and economic factors

some of which will be reviewed in closer detail in the relevant section of this guide

One of the most striking aspects related to the issue is the imposition of the capital punishment

on juveniles The sentencing of juveniles to death is in clear breach of international law The

morality and validity of such a practice is often called into question and has been put under

relentless scrutiny despite all of which the practice is still carried out in a number of countries

Historically the United States China and Iran have the worst records relating to juvenile death

sentences100

The study guide also includes a separate section for the case of juveniles in which

the legal and social aspects of the problems are detailed

As stated states have made use of the death penalty to punish crimes of varying natures The use

of the death penalty is reserved for only the most seriouslsquo crimes as put forth in international

law101

The notion of a capital crime however is a subjective one states that have doled out

death sentences have defined it differently In certain countries the death penalty is only used to

charge criminals accused of war crimes In other countries the penalty is reserved for crimes like

96

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf 97

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010 98

httpusersrcncommwooddeathpenhtml 99

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 100

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 101

httpwwwunorgdocumentsecosocdocs1995e1995-78htm

UNHRC 27 of 44

murder rape or even robbery States also use the death penalty against individuals who are guilty

of treason The issue however is that many states practicing the death penalty impose the

punishment even when the crimes do not meet the threshold for the aforementioned most

seriouslsquo crimes The ability of states to define what constitutes as a capital crime has led to states

abusing their powers as has been observed in the sentences ordained by military courts

Moreover even the radicals who make the argument of the punishment fitting the crime agree

that in many instances individuals have been executed for softlsquo crimes crimes that were

certainly not tantamount to charges of murder or crimes against humanity The issue of apparent

violations of human rights is further exacerbated in these instances The study guide will discuss

the universal crimes that have resulted in the awarding of the death penalty and examine the

issue further The committee will be expected to discuss the feasibility of drawing up an

international definition of crimes which in isolated instances perhaps may be appropriate for a

sentence like the death penalty

Another pertinent aspect surrounding the debate is that of extrajudicial killings The execution of

a person by state authorities without the authority of a judicial proceeding is termed as an

extrajudicial killing Many states have used extrajudicial killings to establish their authority and

order without having to wade through the legal process By doing so they have deprived scores

of people of their fundamental right to free and fair trials Governments have also employed this

tactic to exercise political aggression and to suppress dissent A particular point of concern is the

fact that some states have made use of these killings even when they have officially revoked the

imposition of the death penalty Extrajudicial killings are carried out persistently in many

countries ndash the list includes countries like Iran Iraq Israel Philippines102

Most recently the

killing of Anwar al-Awlaki and Samir Khan in Yemen by a sanctioned National Security Council

move by the USA was an example of states embarking on such paths to eliminate threats to

national securitylsquo103

102

Multiple citations for each country can be found in the second paragraph article titled Extrajudicial killinglsquo on

Wikipedia 103

httpwwwtelegraphcouknewsworldnewsbarackobama7564581Barack-Obama-orders-killing-of-US-cleric-

Anwar-al-Awlakihtml

UNHRC 28 of 44

Wrongful convictions lead many to believe in the inherent incapacity of the death penalty to

serve justice On September 21 2011 US citizen Troy Davis was executed in Georgia after

which seven of the nine witnesses who testified against him in the case that led to his execution

recounted or retracted their evidences A petition with nearly one million signatures was put

forth to reconsider his case it was rejected On the same day a 17 year old boy was publicly

hanged in Iran for killing a popular athlete his justification based on self-defense was ignored

Also on the same day a Pakistani national was executed in China on grounds of drug trafficking

an offence that does not often result in capital punishment The need for the resolution of this

issue is pressing and the committee needs to deal with all aspects of the problem in a

comprehensive and enduring manner104

Capital Punishment

In 2010 23 countries implemented capital punishment A total of 527 executions (plus the 1000+

carried out in China alone) were known to have taken place with Iran Yemen USA and North

Korea meting out a significant number of sentences105

The figure is lower than the records

computed for years past There are more states which are now abolitionist either in law or in

practice with regard to the imposition of the punishment Gabon was officially the last country

to rescind the practice while bills calling for an end to capital punishment have been presented

to parliaments in Lebanon Mali Mongolia and South Korea106

Renewed efforts are

104

httpwwwamnestyorgennews-and-updatesus-executes-death-row-prisoner-troy-davis-2011-09-21 105

httpwwwguardiancouknewsdatablog2011mar29death-penalty-countries-world 106

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010

UNHRC 29 of 44

simultaneously being made on the international front to implement laws against capital

punishment A third resolution establishing a moratorium on the use of death penalty passed the

UN General Assembly on December 21 2010107

Despite the increasing momentum towards an eventual elimination of the practice the number of

executions taking place annually is a cause of major concern Advocates of the death penalty

assert that the practice is an effective means of deterring crime in society Public executions are

often held in Iran Afghanistan and Palestine for example to demonstrate the fate awaiting

those who commit similar crimes108

Arguments are made on the grounds of justice that it is

proper and fair to take an eye for an eye and a life for a life and that some individuals deserve

it for the crimes they commit

Those opposing the practice question the morality of an action sanctioned by the state which

endorses deprivation of the right to life a fundamental human right under the Universal

Declaration of Human Rights109

There are inescapable flaws within legal systems which are

aggravated by discrimination prosecutorial misconduct and inadequate legal representation

Moreover the risk of executing the innocent can never be eliminated110

An alternative is

presented in the form of imprisonment for life without parole which results in a parallel debate

is imprisonment for life a viable surrogate to the practice of death penalty A thread from this

debate also relates to the economic feasibility of carrying out a death sentence as opposed to the

feasibility of imprisonment for life

Deterrence

Capital punishment is often propagated as an adequate approach in the deterrence and prevention

of crime The logic is that if murderers are sentenced to death potential murderers will think

twice before killing for fear of losing their own life The deterrence theory presumes that the

once the punishment for a certain crime is established the criminal by committing the crime

voluntarily assumes the risk of receiving the prescribed punishment for the crime Only when the

most severe punishment has been set will there be a possibility of an individual evaluating their

actions in light of the consequences111

107

httpwwwundemocracycomA-RES-62-149pdf 108

httpwwwamnestyorgennews-and-updatessharp-rise-public-executions-iran-executes-first-juvenile-

offenders-2011-2011-04-27 109

wwwunorgendocumentsudhr 110

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 111

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 30 of 44

The death penalty it is asserted ensures that convicted criminals do not offend again moreover

it is deemed to be a just penalty for atrocious crimes It is further alleged that many criminals

who are set free even after lengthy sentences regress and go on to commit heinous crimes

Therefore there should never be the possibility of a release clause112

The deterrence theory is modeled on the grounds of human psychology logic and rationale As a

professor of jurisprudence Ernest van den Haag PhD wrote ―Common sense lately bolstered

by statistics tells us that the death penalty will deter murder if anything can People fear nothing

more than death Therefore nothing will deter a criminal more than the fear of death These

statements were further validated by a US Supreme Court Justice who said on record that

Prima facie the penalty of death is likely to have a stronger effect as a deterrent to normal

human beings than any other form of punishmentlsquo113

Numerous studies have been conducted on

the subject with varying results One of the most established studies was conducted in USA

using a panel data set of over 3000 counties from 1977 to 1996 which concluded that on

average one death sentence resulted in 18 fewer murders114

Delegates will be expected to be

familiar with other similar studies

These studies are commonly refuted as not crediblelsquo by opponents of the capital punishment

who also deny the correlation between crime and death penalty as a fabricated relationship which

cannot be empirically established115116

A study of the relationship between capital punishment

and the incidence of murder was conducted for the UN in 1988 and updated in 2002 The

conclusion was ―The investigation has not provided scientific proof that executions have more

deterrent effect than life imprisonment It is unlikely that such evidence will ever come

Deterrence hypothesis finds no support in the survey117

Another counter-argument asserts that crime is still a persistent feature of the societies that

continue to award the death penalty while many of the abolitionist states enjoy low crime rates

This can be evidenced by comparing the crime rate in USA or Pakistan with that of Canada or

some European state In Canada for example the homicide rate per 100000 fell from a peak of

309 in 1975 the year before the abolition of the death penalty for murder to 241 in 1980 and

in 2003 27 years after abolition the homicide rate was 173 per 100000 44 per cent lower than

in 1975118

112

httpwwwdeathpenaltyinfoorgfacts-about-deterrence-and-death-penalty 113

httpdeathpenaltyproconorgviewresourcephpresourceID=002000 114

httpdeathpenaltyproconorgsourcefilesThe20Deterrent20Effect20of20Capital20Punishmentpdf ndash

Delegates should carefully examine certain parts of this document to establish the credibility of the assertions made

They should also invest in trying to locate studies that refute the assertions made in this and similar studies 115

httpwwwdeathpenaltyinfoorglaw-enforcement-views-deterrencelawenforcement 116

httpwwwdeathpenaltyinfoorgDonohueDeterpdf 117

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 118

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml

UNHRC 31 of 44

The lack of evidence on the production of a unique deterrent effect points to the danger of

relying on the deterrence hypothesis as a basis for public policy on the death penalty

Retribution amp Morality

An important terminology that delegates need to familiarize themselves with is that of

―retributivism119

It is defined as ―a policy of criminal justice that sponsors the punishment of

criminals in retribution for the harm they have inflicted120

Criminals deserve to be punished in

proportion to the gravity of their crime regardless of whether the victim or anyone else desires

it we may all deeply regret having to carry out the punishment but consider it warrantedlsquo is

what many say in defense of the theory121

The need for the establishment of a visibly just state arises from the potential risks of not having

one As has been visible in many developing countries with shaky legal systems when criminals

are not adequately punished for their unlawful behavior the public takes the law into its own

hands and deals out vigilante justice It is asserted that retributivism is essential for a functioning

society where individuals respect the supremacy of law

The concept of retribution in society is also grounded in religious beliefs The concept of an eye

for an eye has been a part of all three Abrahamic traditions However in the modern world it is

Islamic nations that still retain the practice based on these grounds Similar traditions can be

found in Hinduism Christianity and Buddhism as well as other religions in different parts of the

world In many non-secular countries the constitutions and state laws are derived from religious

doctrines

Opponents dismiss this aspect of the argument as being emotionally charged with little rational

logic to support the contention They claim that the establishment of capital punishment gives

birth to a culture of violence endorsed by the state It perpetuates the cycle of aggression and

brutality something which the state should be actively inhibiting not endorsing

Wrongful Convictions

The death penalty carries with it the danger of wrongfully convicting an innocent person for

crimes he did not commit There is the potential for capital punishment to evolve into sheer

miscarriage of justice as in certain circumstances states are often seen to rush the trials and

convict the accused hastily This practice takes foremost apparently in military courts often in

119

Cavadino M amp Dignan J (1997) The Penal System An Introduction (2nd ed) p 39 London Sage 120

httpdictionaryreferencecombrowseretributivism 121

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 32 of 44

the developing or lesser-developed countries where the system of law is not properly established

It is not however exclusive to these countries Examples can be drawn from countries like

Philippines Thailand Iran and Palestine to name just a few where executions are carried out at

alarming pace removing the possibility of reviews

On 15 August 2004 Atefah Rajabi Sahaaleh was hanged in a public square in the Iranian city of

Neka Her death sentence was imposed for adultery and crimes against chastity122123

Atefah

was executed a week after the trial was run Following the execution the Judge for the case was

arrested for investigation by the Intelligence Ministry The media reported that in addition to the

confession of his rape of Atefeh Judge Rezai who served as judge jury and executioner also

confessed to torturing her during interrogations to extract names of others she had relations with

No transcripts from court proceedings were recorded The State alleged that Atefah was 22 at the

time of her execution A witness later claimed The judge just looked at her body because of

the developed physique and declared her as 22124

ndash her birth certificate revealed she was born

in 1988 Furthermore Atefah did not have access to a proper defense where she could contest

charges leveled against her This is one example of many such cases of miscarriage of justice

Something that recurs in these cases is the failure of the police or prosecuting authorities to

prevent the use of unreliable witnesses the misuse of evidence or confessions and the provision

of inadequate defense representation The advent of DNA profiling and the use of it as positive

evidence in criminal cases has resulted in the exoneration of multiple death row inmates on

grounds of forensic evidence or lack thereof Since 1973 138 people have been released from

death row in the United States after it was proven that they were innocent125

In 2009 Paul

House was cleared of murder and exonerated in Tennessee USA after having served 22 years

on death row His innocence was proclaimed in light of substantial additional DNA testing and

further investigationlsquo 126

Amnesty International has noted examples of wrongful convictions from elsewhere as well

including Jamaica Japan China Nigeria and Tanzania127

Paul G Cassell a former law clerk to

the Chief Justice of USA stated the mistaken release of guilty murderers should be of far greater

concern than the speculative and heretofore nonexistent risk of the mistaken execution of an

innocent personlsquo highlighting the case made by those who advocate the death penalty even in

light of wrongful convictions128

122

httpwwwcosmolearningcomdocumentariesexecution-of-a-teenage-girl1 123

httpnewsbbccouk2hi5217424stm 124

httpnewsbbccouk2hi5217424stm 125

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 126

httparticlescnncom2009-05-13justicetennesseeexonerated_1_death-row-inmate-dna-evidence-house-

arrest_s=PMCRIME 127

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 128

httpdeathpenaltycurriculumorgstudentcaboutargumentstestimony3bhtm

UNHRC 33 of 44

Alternative to Death Penalty

All abolitionist states have reverted to the practice of sentencing criminals to life imprisonment

(some without parole) which is also termed as death by incarceration Widely regarded as a more

humane course of action life imprisonment is also alleged to be a more economical practice

While ensuring public safety by keeping criminals away from society this system also saves the

lives of innocent people who have been falsely or wrongfully convicted The setup inhibits and

curbs the cycle of violence while retaining the deterrence factor it is strongly asserted

Advocates for the death penalty are averse towards life imprisonment for a number of reasons

They cite the unreliability of the system as one of the flaws which impedes the possibility of

such a sentence being successful A certain James Moore serves as a valid example in this case

In 1962 James Moore raped and strangled 14-year-old Pamela Moss The victimlsquos parents opted

out of capital punishment for Moore and he was instead sentenced to life in prison without

parole Twenty years later a change in sentencing laws in 1982 renders James Moore eligible for

parole every two years129130

Kenneth McDuff is another example McDuff was convicted and sentenced to life imprisonment

Years later due to the issue of overcrowding in prisons McDuff was released following which

he killed eight more people McDufflsquos example is of an individual from a developed country

with an established legal system in place131

Overcrowding is a feature of prisons in developing

or lesser developed countries In many such states criminals have also been known to easily

break out from penitentiaries

The economic aspect of the debate is murky at best There is a lack of empirical data on the

subject which is why the arguments of both these sides cannot be settled beyond doubt

Advocates of capital punishment insist that the overall costs of the practice are far lesser than the

costs of housing an inmate for a lifetime132

They also suggest that the life imprisonment allows

criminals to conceive new habeas corpus petitions which on legal grounds cannot be rejected

automatically resulting in more trials

On the other hand substantial arguments are made which stress that the cost of legal proceedings

in capital cases is in truth more than that of other cases States and nations spend a significant

portion of the taxpayerlsquos money in meting out such punishments133

Delegates when addressing

this portion of the debate will need to be aware of the financial aspects of the issue as it forms

for many states an important part of whether capital punishment should be revoked or

not

129

httpwesleylowecomcphtmldeter 130

httpwwwnytimescomkeywordparole 131

httpwesleylowecomcphtmldeter 132

Ibid ndash view section titled Capital Punishment and its costslsquo 133

httpwwwamnestyusaorgour-workissuesdeath-penaltyus-death-penalty-factsdeath-penalty-cost

UNHRC 34 of 44

Imposition of Death Penalty on Juveniles

The prohibition on the death penalty for crimes committed by juvenile offendersmdashpersons under

age 18 at the time of the offensemdashis well established in international law specifically in the

Convention on the Rights of Child

ldquoNo child shall be subjected to torture or other cruel inhuman or degrading treatment or

punishment Neither capital punishment nor life imprisonment without possibility of release shall

be imposed for offences committed by persons below eighteen years of agerdquo134

- Article 37(a) Convention on the Rights of Child

ldquoSentence of death shall not be imposed for crimes committed by persons below eighteen years

of age and shall not be carried out on pregnant womenrdquo135

- Article 6(5) International Covenant on Civil and Political Rights

The treaties are a unanimously agreed set of non-negotiable standards and obligations By

acceding to the treaties and ratifying them governments commit to protecting and ensuring

childrens rights and to holding themselves accountable for this commitment before the

international community

Even though the practice of capital punishment on juveniles is relatively rare however in clear

contravention of international law nine countries have executed offenders who were juveniles at

the time of their crimes between 1990 and 2005136

These countries include the Peoples Republic

of China (PRC) the Democratic Republic of the Congo Iran Nigeria Pakistan Saudi Arabia

Sudan the United States and Yemen137

The USA has since moved to implement a ban on capital

punishment for juveniles However in most other countries of the preceding list the practice is

still enshrined in the judicial system Iranlsquos record in particular has been abominable over the last

decade It has carried out 39 executions of persons under the age of 18 since 2005 Presently

over a hundred individuals are placed on death row for crimes committed as juveniles The

executions of Mahmoud Asgari Ayaz Marhoni and Makwan Moloudzadeh became international

symbols of Irans child capital punishment and the judicial system that hands down such

134

httpwww2ohchrorgenglishlawcrchtm 135

httpwww2ohchrorgenglishlawccprhtm 136

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf - This document by the Human Rights Watch

called The Last Holdoutslsquo is a good summary of juvenile executions and should be reviewed 137

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 - Contains a list with

statistics and details of countries which have allowed the imposition of death sentence to juveniles

UNHRC 35 of 44

sentences138139140

Saudi Arabia and China too have questionable records that need to be

scrutinized further

While regional treaties and charters usually substantiate international law the Arab Human

Rights Charter of 2004 is unique among regional and international treaties in that the ban on the

juvenile death penalty in it is not absolute but merely optional141

Furthermore national laws in states that observe such a practice are in violation of

international legally-binding charters In Iran and Saudi Arabia laws usually treat a child the

same way as an adult criminal offender would be treated Article 10(3) of the International

Covenant on Civil and Political Rights emphasizes the need for demarcation between the

handling of children and that of adults in stating ―Juvenile offenders shall be segregated from

adults and be accorded treatment appropriate to their age and legal status142

The definition of a child in these Muslim states is unclear as adulthood is associated with

attainment of puberty which is a relative concept The Committee on the Rights of the Child in

January 2005 censured the Saudi government for its practice of imposing the death penalty on

juveniles terming it a serious violation of the fundamental rights The committee was deeply

alarmed over the discretionary power judges hold to treat juveniles as adults as was stated in

the committeelsquos report Iran too was strongly condemned following the release of an

international report highlighting the dire situation in Iran by the International for Human Rights 143

138

httpwwwfoxnewscomstory0293329798200html 139

httpnewsbbccouk2himiddle_east7130380stm 140

httpenwikipediaorgwikiCapital_punishmentIran 141

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 142

httpwww2ohchrorgenglishlawccprhtm 143

httpwwwfidhorgIMGpdfRapport_Iran_finalpdf

UNHRC 36 of 44

On August 19 2008 Iranian authorities executed Seyyed Reza Hejazi at Isfahan Central Prison

for his role in a murder committed in 2003 when he was 15 Hejazi was tried as an adult by

Branch 106 of the Isfahan General Court even if he did not qualify as one under international

stipulations and sentenced to death on November 14 2005144

In Saudi Arabia Mu`id bin

Husayn bin Abu al-Qasim bin `Ali Hakami was executed on July 10 2007 for a murder he

allegedly committed three years earlier when he was 13 years old145

The judges in these states

because of the implementation of the Sharialsquo law have a large amount of discretion with regard

to their rulings This discretion is often abused in the interrogation and judicial proceedings In

Pakistan authorities hanged Mutaber Khan in Peshawar Central Prison on June 13 2006 on

charges of murder of five people The fact that he was held in the juvenile wing of Peshawar

Central prison and the evidence presented by the accused confirming that his age was below 18

at the time of the killings were not taken into account during the trials and Mutaber was charged

as an adult in the case146

While the above does not cover exhaustively the practice of capitally punishing juveniles the

committee is expected to be well read on the matter The committee will be required to devise

ways to strictly apply the existing international law on the subject to curtail further deaths of

juveniles by states A series of recommendations on better implementation of international

covenants will be expected from the committee Delegates at UNHRC will also have to

familiarize themselves with the stipulations in the national laws of countries practicing juvenile

death penalties (Iran Saudi Arabia Pakistan Nigeria Sudan Yemen and UAE among others) to

discuss how these states are constitutionally able to bend international law and mete out the

illegal punishments

144

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 145

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 146

See FIDH and Human Rights Commission of Pakistan ―Slow march to the gallows and ―Condemned Prisoner

Executed Dawn Newspaper Karachi June 14 2005 httpwwwdawncom20060614nat16htm

UNHRC 37 of 44

Universality of Laws Incurring the Death Penalty

In countries which have not abolished the death penalty capital punishment may be imposed

only for the most serious crimes it being understood that their scope should not go beyond

intentional crimes with lethal or other extremely grave consequences

- Safeguards guaranteeing protection of the rights of those facing the death penalty147

Laws incurring the death penalty or capital crimes have certain uniformity the world over This

is of course barring states that are religiously affiliated and whose law systems are not secular

in nature The list of capital crimes for those states with non-secular legal systems is slightly

different The Human Rights Commission had decided that the imposition in the State party of

the death penalty for offences which cannot be characterized as the most serious including

apostasy committing a third homosexual act illicit sex embezzlement by officials and theft by

force are incompatible with Article 6 of the Covenant Economic offences including

embezzlement drug related offences political offences and robbery were also referred to148

The reason why looking into capital crimes and trying to garner a global impression of them is

important is that the death penalty can only realistically be abolished in a piecemeal way This

process will entail shortening the list of capital crimes The UN formally notes that ―in order

fully to guarantee the right to life provided for in article 3 of the Universal Declaration of

Human Rights the main objective to be pursued is that of progressively restricting the number of

offences for which capital punishment may be imposed with a view to the desirability of

abolishing this punishment in all countries149

The first established death penalty laws date as far back as the Eighteenth Century BC in the

Code of King Hammaurabi of Babylon which codified the death penalty for 25 different crimes

By the 1700s 222 crimes were punishable by death in Britain including stealing cutting down a

tree and robbing a rabbit warren In the 19th

century the death penalty was eliminated for over

100 of the 222 crimes punishable by death 150

In modern times the UN Special Rapporteur on

extrajudicial summary or arbitrary executions has stated that the death penalty should be

eliminated for economic crimes and drug-related offences and that the restrictions to its use

―exclude the possibility of death sentences for so-called victimless offences ndash including acts of

treason espionage and other vaguely defined acts usually described as crimes against the Statelsquo

or disloyaltylsquo and ―actions primarily related to prevailing moral values such as adultery and

prostitution as well as matters of sexual orientation151

147

httpwww2ohchrorgenglishlawpdfprotectionpdf 148

httpwwwunhchrchtbsdocnsf0bc310a747155dff88025655300537faeOpendocument 149

General Assembly resolution 2857 httpwwwunodcorgpdfcompendiumcompendium_2006_part_01_05pdf 150

httpdeathpenaltycurriculumorgstudentcabouthistoryhistoryPDF 151

httpswwwabofimedia24259report10pdf

UNHRC 38 of 44

Contrary to the made recommendations even political dissent warrants a death sentence in

several countries most notably in China and Iran In 2010 nearly 20 Kurdish people were

executed for political offences in Iran The country is known for keeping dissent especially from

the Kurds suppressed Most are executed on the grounds of moharebeh or enmity against God

Moreover challenging the power of the Ayatollah is also punishable by death These charges are

neither explicit nor in line with international guidelines over what crimes are punishable

capitally In Iran judges must handle such cases carefully as Iranian law provides for only one

punishment if an individual is found to be guilty of treason Libya too thwarts political dissent

with firm laws in place for punishing by death those who illegally form groups organizations or

associations against the state152

Saudi Arabia too is worth note for its vaguely phrased laws governing capital punishment

Intentional murder and crimes that spread ―mischief in the land (Fasad fil-ardh) merit death In

2010 the government announced that it had executed 26 people all by beheading Crimes that

―spread mischief include witchcraft and sorcery153

How is one convicted of witchcraft in the

21st century What can the international community do when regarding countries such as these

Treason arguably along with murder is the capital crime that has yet to be phased out by many

countries In some such as Brazil treason during warfare is the only crime for which a person

can be sentenced to death In the Gaza Strip under Hamas any sort of cooperation with Israeli

forces during military actions is also punishable by death In others including Algeria Bahrain

Iran and Malaysia treason is punishable by death in all circumstances The United States too has

federal laws governing treason under which traitors ―shall suffer death154

Child sex abuse is another crime that is widely held to merit the death penalty In Russia for

example according to the Russian Public Opinion Research Center an overwhelming majority

consider the death penalty to be an acceptable punishment especially in relation to molestation

155 In 2009 however Russias Constitutional Court effectively abolished the death penalty by

extending indefinitely a 13-year-old moratorium on capital punishment156

Indonesia has some of the strictest penalties for drug related crimes in the world Roughly half of

those on death row are incriminated with drug-related charges157

In 2008 though the most high

profile executions were of terrorists Three of those found responsible for the 2002 Bali

bombings were executed by shooting158

Generally speaking however a significant proportion of

152

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 153

httpwwwstategovgdrlrlshrrpt2010nea154472htm 154

httpdeathpenaltyproconorgviewresourcephpresourceID=1172 155

httpenrianrutrenddeath_penalty 156

httpwwwreuterscomarticle20091119idUSLJ330478 157

httpwwwnytimescom20080711worldasia11iht-indo114421132html 158

httpnewsbbccouk2hiasia-pacific7718246stm

UNHRC 39 of 44

the executions or death sentences recorded (in 2010) in China Egypt Indonesia Iran Laos

Libya Thailand United Arab Emirates and Yemen were for drug-related offences In December

2010 the amended Anti-Narcotics law came into force in Iran extending the scope of the death

penalty to include additional categories of illegal drugs (for example crystal meth) possession

of which became punishable by death Also around the same time the National Assembly of

Gambia voted to extend the scope of the death penalty by making the possession of more than

250g of heroin or cocaine an offence punishable by death159

Several states allow for the death penalty for crimes of blasphemy and other crimes for

nonviolent expression and association In Pakistan Aasia Bibi a Christian mother of five was

charged with blasphemy and sentenced to death after a trial largely believed to be unfair on 8

November 2010 She is currently on death row The country is also noted for its laws concerning

capital crimes The list includes 27 crimes most of which go beyond the notion of ―most serious

crimes as recommended by the International Covenant on Civil and Political Rights Extra-

marital sex and blasphemy are examples of some capital crimes in the country In December

2007 Pakistan voted against a United Nation General Assembly resolution for a moratorium on

the death penalty The year before however the nation amended its law on rape and adultery

charges which are no longer punishable by death160

As far back as 1989 recommendations have been made as to how to abolish the death penalty

Member states (of the UN) have been urged ―to publish for each category of offence for which

the death penalty is authorized and if possible on an annual basis information about the use of

the death penalty including the number of persons sentenced to death the number of executions

actually carried out the number of persons under sentence of death the number of death

sentences reversed or commuted on appeal and the number of instances in which clemency has

been granted and to include information on the extent to which the safeguards referred to above

are incorporated in national law161

The committee must inspect how far this recommendation

has been adopted and should seek to rectify the weaknesses in the system of gradually

abolishing the death penalty Can a target year be designated by which crimes meriting the death

penalty could be made universal How can countries with non-secular legal systems be brought

into the fold of international law

159

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 160

httpwwwfiacatorgenIMGpdfdppakistan-enpdf 161

httpgraduateinstitutechfacultyclaphamhrdocdocsecosocresolutiondeathpen1989html

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 16: UNHRCFINAL

UNHRC 12 of 44

Victims included those writing about Liu Xiaobo the imprisoned human rights defender who

received the Nobel Peace Prize in 201039

According to statistics over 80 of Chinas netizens rely mainly on the Internet for news 40

With this state of affairs and increasing dependence the world over on the internet as a major

source of information discussing information monopolies is crucial To isolate a country of over

a billion and deny it access to information in the age of technology may not seem a palpable

physical or otherwise contravention of human rights however its consequences are

tremendous While one may think that media censorship is restricted to dictatorial regimes the

case of China serves to refute that line of thought Media censorship is prevalent even in

countries as varied as Indonesia India Mexico and Russia ndash all of whom rank relatively low on

the Press Freedom Index41

Looking at instances worldwide and the justifications given for

restricting rights will be a useful direction to take while researching

The following website is a useful tool to check the status of websites in China

httpwwwgreatfirewallofchinaorg

Political Prisoners in China and Illegal Detention

Political prisoners are those whose imprisonment is carried out arbitrarily on contestable and

controversial grounds Governments detain certain individuals on the basis of allegedly valid

grounds which are not always disclosed or declared Many detainees charge existence of ulterior

motives or extrajudicial reasons on part of the state for their detention The phenomenon of

political prisoners is often associated with closed regimes such as Burma and the DPRK

However the Peoplelsquos Republic of China too does not escape scrutiny when the topic of political

prisoners is at hand The phenomenon of political prisoners resonates so loudly in the

international spheres particularly because governments deny the existence of political prisoners

they claim that all detainees are lawfully held under criminal law The unfair detainment of

persons or the capture of people to serve the interests of a government contravenes many human

rights including freedom of expression association and assembly Indeed a countrylsquos political

imprisonment record is one of the crucial indicators of its human rights situation

Amnesty International views political prisoners as prisoners of conscience These are more

specifically ―people who have been jailed because of their political religious or other

conscientiously-held beliefs ethnic origin sex color language national or social origin

economic status birth sexual orientation or other status42

39

httpwwwcpjorgreports201105the-10-tools-of-online-oppressorsphp 40

httpchinaorgcngovernmentwhitepapernode_7093508htm 41

httpenrsforgpress-freedom-index-20101034html 42

httpwwwamnestyusaorgour-workissuesprisoners-and-people-at-riskprisoners-of-conscience

UNHRC 13 of 44

According to the (US) Congressional Executive Commission on China over 5000 cases of

politically or religiously motivated imprisonments have been made It has detailed documented

information on the status of 1452 of these prisoners and

notes that its information is far from complete and that the

true story of Chinalsquos political prisoners remains unknown 43

The plight of political prisoners in China is speculated upon

by various international organizations Among these is the

Human Rights Watch which has gone as far as labeling the

locations for holding political prisoners ―black jails and

―alleyways in hell Officially though the Chinese

government denies the existence of political prisoners Subsequent to Chinalsquos Universal Periodic

Review an outcome report was published which came under fire from various sides The Human

Rights Watch called the substance of the report to be ―manifestly so far removed from reality

that [it] would immediately discredit anybody that adopted them in a report 44

In the report of

the UNHRC Working Group subsequent to Chinalsquos UPR it is stated that the Chinese

government does not use ―state secrets to suppress human rights defenders 45

It is precisely this

situation that our simulation wishes to remedy discussion should be fact based

The ground realities are different In 2010 Chinese activist and human rights defender Mr Liu

Xiaobo was awarded the Nobel Peace Prize He was jailed by Chinese authorities for

distributing his ―Charter 08 a document that called for freedom of expression and of assembly

among other things The government incarcerated him for an 11 year time-period on the charge

of subversion Subsequent to the prize the Chinese government came down hard on other human

rights activists Indeed those celebrating the awarding of the prize to Mr Xiaobo were arrested

arbitrarily While distributing fliers celebrating the win many were imprisoned on the grounds of

―inciting subversion of state power The Report of the Special Rapporteur on the situation of

human rights defenders published in 2011 makes mention of these facts46

The Chinese

government labeled the award an ―obscenity It is vague allegations such as these that allow

governments to thwart dissidents As expected though according to the report of the HRC

Working Group No individual or press has been penalized for voicing their opinions or

views47

When discussing China and political prisoners it is important to mention the Falun Gong

movement It is a spiritual variant of Buddhism and originated in China on the basis of the

teachings of its founder Li Hongzhi The movement was supported within the Chinese

43

httpwwwceccgovpagesvictims20101010_PPD_AR10pdfPHPSESSID=705596c0e91f35e392e6f0ecbb78d6

7c 44

httpwwwhrworgennews20090610human-rights-watch-statement-upr-outcome-report-china 45

httpdaccess-dds-nyunorgdocUNDOCGENG0916299PDFG0916299pdfOpenElement 46

httpwww2ohchrorgenglishissuesdefendersdocsAHRC1644Add1_EFSonlypdf Page 63 47

httpdaccess-dds-nyunorgdocUNDOCGENG0916299PDFG0916299pdfOpenElement Para 71

UNHRC 14 of 44

officialdom initially However Falun Gonglsquos popularity within the masses as well as its

independence from the state and its spiritual teachings was soon perceived as a threat to the

government By the late 1990lsquos the Chinese government cracked down on the movement and

labeled it as a heretical organization Chinese legislation uses the expression ―Xiejiao zuzhi to

refer to a wide range of sectarian or unorthodox religious groups which do not meet official

approval The Falun Gong movement is included in this list48

The Falun Gong followers are the

worldlsquos largest group of prisoners of conscience The PRC often picks up practitioners and

accuses them of ―using an evil cult to destroy implementation of the law 49

China with its strict non-religious government did not take kindly to this new movement that

had garnered millions of followers both within China and internationally between 1992 and the

crackdown in 1999 Today Falun Gong is practiced freely in more than 70 countries around the

world with clubs and associations existing in a range of settings50

Beginning at the turn of the

millennium the authorities started to ban access to websites that contained material about the

movement Indeed a search on the movement on Chinalsquos Xinhua News Agency website will

even today yield nothing (It may be an interesting experiment for delegates to conduct) Those

who reported the initial crackdown were ―followed detained interrogated and threatened

according to a letter written in 1999 by The Foreign Correspondents Club (FCC) of China51

The Falun Gong movementlsquos official website deals with its persecution thus The complex

rationale behind the persecution can be broken into four elements a paranoid dictators fear of

Falun Gongs meteoric growth and soaring popularity that same dictators intense jealousy of

Falun Dafas popularity the inherent conflict between the communist regimes savage political

ideology and its polar oppositemdashFalun Dafas principles of Truthfulness Benevolence

Forbearance and the very nature of communism which to sustain itself requires periodically

labeling a small segment of the population as the class enemy to struggle against52

The Chinese crackdown on Falun Gong practitioners involved a ban on practicing it by the

Chinese Communist Party whose members as aforementioned were interestingly initially

adherents to the movement in significant numbers Indeed the party was divided from within

over their stance on the movement The government formulated an ―anti-cult law a few months

after issuing a warrant for the founderlsquos arrest ―During the first two years of the crackdown

between 150 and 450 group leaders and other members were tried for various crimes and

sentenced to prison terms of up to 18-20 years53

To this day ―central leaders turn a blind eye to

48

httpwwwamnestyorgenlibraryassetASA170112000en7a361a8e-df70-11dd-acaa-

7d9091d4638fasa170112000enhtml 49

httpwww2ohchrorgenglishissuesdefendersdocsAHRC1644Add1_EFSonlypdf 50

httpwwwfaluninfonettopic22 51

httpwwwamnestyorgenlibraryassetASA170112000en7a361a8e-df70-11dd-acaa-

7d9091d4638fasa170112000enhtml 52

httpwwwfalundafaorgengfaqshtmlpersecution 53

httpfpcstategovdocumentsorganization67820pdf Page 4

UNHRC 15 of 44

local methods of suppression against unrepentant practitioners including the reported use of

torture54

Also worth noting is the fact that Chinalsquos judicial system has been alleged to be anything but

conducive to providing justice to those using the system Indeed it is a repressive tool used by

the government to silence dissent China with its vast land mass and various provinces and

municipalities must work hard to keep its Centre strong Scores of individuals who are more

obscure than human rights activists and such are imprisoned by the government while ironically

seeking justice It has long been the custom for people of the countryside to seek justice in

Beijing if they felt that their local authorities had treated them unfairly However modern China

has not taken kindly to this tradition Local authorities are evaluated on the basis of the number

of complaints the Centre receives about them Thus they have a vested interest in thwarting the

reports of any complaints about them to Beijing Those who complain are whisked off to black

jails where ―detainees are denied access to legal counsel and in most cases contact with family

and friends They ―are kept under constant surveillance and subject to often arbitrary physical

and psychological abuse55

Chinalsquos record with regard to political prisoners and its tradition of suppressing dissent are

exacerbated by the sheer scale on which dissent is thwarted The aspect of potential torture of

prisoners further complicates the issue It is troubling that the issue of Chinese political prisoners

only gained international prominence with the case of Mr Liu Xiaobo It is not the only nation in

the world to adopt such strict policies in order to further its own ideology and the committee will

do well to ruminate upon how this tradition can be discontinued so as to allow people their

essential political freedoms

The Infringement of Rights in the Conflict with Tibet

Despite the furor that has been inconsistently directed towards its human rights record China

continues to impose tightening restrictions on rights of expression association and assembly

The Chinese government carries on devising social and economic changes that retain its firm

authority over its citizens which in turn enables a host of human rights violations In the context

of Tibet China has failed to address the grievances of the people there who have been made

victims of social discrimination and have unequal access to opportunities Scores of Tibetans are

marginalized and detained for their religious inclinations which are further suppressed by the

imposition of intense patriotic educationlsquo campaigns whereby socialism is furthered and all sorts

of religious or individualistic tendencies are thwarted

54

Ibid Page 5 55

httpwwwhrworgreports20091112alleyway-hell-0 Page 4

UNHRC 16 of 44

Despite its totalitarian approach China refuses to accept responsibility for the issue Instead it

blames westernlsquo forces for trying to instigate separatism56

The indifference on the part of

China with particular regard to Tibet is apparent with Chinese authoritieslsquo continuous rejection

of ―inconvenient requests by UN human rights experts for visits to the Tibet Autonomous

Region57

During 1912 and 1951 Tibet underwent a period of de facto independence58

While it was still

territorially a part of China it enjoyed relative freedom in its political discourse Tibetan

autonomy was confined within the context of Chinese suzerainty and should not be interpreted

as unrestrained political independence Since 1951 however the Chinese government has taken

steps to ensure its absolute and undeniable dominance over Tibet from which emanates the strife

under discussion Gross violations of human rights have taken place in China administered by

officials with the purpose of cultivating consent with regard to its control over the region

Suppression has led to the inevitable extensive discontent in Tibet a fury which was unleashed

in 2008 The Tibetan unrest of 2008 was a series of protests and demonstrations - not merely in

the Tibet Autonomous Region but elsewhere as well - that later transformed into rioting burning

looting and even killing59

The rioters set fire to state vehicles and clashed violently with the

police installed in the region The crackdown of Chinese authorities in response to the riots was

severe resulting in deaths on both sides and mass imprisonment by state authorities The degree

to which human rights were violated and abused during this crackdown cannot be overstated

The Chinese also revoked the freedom of sharing of information and imposed a ban on the entry

of media officials in the region to contain

information about the unrest and play down

protests60

A Tibetan Government in Exile has existed in India

since 1959 established by the 14th

Dalai Lama61

This Central Tibetan Administration considers the

issue as an illegitimate military occupation by the

Chinese state The Administration works with the

agendas of restoration of freedom in Tibet and rehabilitation of Tibetan refugees

Historical facts refute such a fallacy however The simple reality that the installation of the 14th Dalai Lama

needed the approval of the national government is sufficient proof that Tibet did not possess any independent power

during that period ndash (httpwwwchinaorgcne-whitetibet9-2htm)

56

httpwwwunhcrorgrefworldcountryAMNESTYCHN49b8dfc11a0html 57

Ibid 58

Grunfeld A Tom Reassessing Tibet Policy 2000 59

httpwwwnytimescom20080316worldasia16iht-tibet111134870html 60

Watts Jonathan Branigan Tania (March 18 2008) Tension rises as armed police mass in capital The

Guardian (London) Retrieved November 1 2011 61

httpwwwtibetnetenindexphpid=14

UNHRC 17 of 44

The censured freedom of expression is one of the multiple infringements on rights that are

imposed by China on Tibet Tibetans are denied the basic right to articulate their views through

political discourse Human rights activists advocate the freedom of speech for Tibetans under the

existing and future political arrangements Religious and political figures in Tibet are placed

under house arrest limiting their freedom of movement (in contradiction to article 13 of the

Universal Declaration of Human Rights)62

As was highlighted during the unrest in 2008 China

has often stripped the Tibetan population of its fundamental rights to associate and assemble In

2000 nine Tibetan prisoners in Kandze were charged for participating in a peaceful protest to

five-year prison terms in October 1999 (which were later increased to ten-year terms)63

This example leads us to another crop of abuse conducted overtly by Chinese authorities

arbitrary detention Article 9 of the Universal Declaration of Human Rights reads ―No one shall

be subjected to arbitrary arrest detention or exile64

Chinese law however permits authorities

to detain persons without formally arresting or charging them and persons may be sentenced

administratively to up to 3 years in reeducation-through-labor camps and other similar facilities

without a trial

Chinese authorities have been unresponsive to concerns expressed by the United Nations

Working Group on Arbitrary Detention No counter-explanation was given either over the case

of three Tibetans who had their sentences extended for staging a peaceful political protest during

the Working Groups visit to Drapchi in October 1997 despite international pressure65

Infinite

examples of arbitrary arrests and detentions exist in China international authorities have called

on China to cease this practice and release such detainees immediately absent evidence that they

have engaged in criminal acts No state can or should be able to hold anyone for engaging in

peaceful political activity All humans

should be granted internationally recognized

due-process protections which includes the

right to be informed of the charges leveled

against them66

The question of whether

these detainees are given an impartial trial if

one at all is not even raised

In addition to the arrests carried out in

violation of international law there are

grave evidences of abuses during detention

62

httpwwwhrworgnews20000612human-rights-violations-tibet 63

Ibid 64

httpwwwunorgendocumentsudhr 65

httpwwwhrworgnews20000612human-rights-violations-tibet 66

httpwwwhrworgnews20000612human-rights-violations-tibet

UNHRC 18 of 44

Incidences of beatings at time of arrest and torture (including the administration of electric

shocks and deprivation of food and medical treatment)67

during custody are widely reported

These are not isolated cases rather the product of a holistic policy of dealing with political

dissidents In one notable incident in May 1998 political prisoners in Drapchi staged major

protests to coincide with a visit from a European Union delegation The protests were non-

violent but the authorities reaction was severe several protestors were shot at and one monk

Lobsang Gelek subsequently died68

The Convention Against Torture (CAT ratified by China in 1988) requires the state to prevent

torture and punish those in violation of the law China has not amended its own laws to comply

with even the first article of CAT69

Such practices explicitly stand in contempt of Article 5 of

the Universal Declaration of Rights which censures the use of torture or cruel treatment as

punishment Dr Manfred Nowak the UN Special Rapporteur on Torture stated that ―he was

struck by the strictness of prison discipline and a palpable level of fear and self-censorship when

talking to detainees following his brief assessment of Chinese and Tibetan prisons in 200570

The committee will be looked upon to review ways in which the situation can be monitored more

carefully and what responses if any can be cultivated to impede similar future actions by

China

The continued violations of religious freedom and implementation of policies designed to

diminish religious practices by the State to serve its political needs is a cause of concern Again

referring to the Universal Declaration of Human Rights Article 18 reads ―Everyone has the right

to freedom ofhellipreligion this right includes freedomhellipto manifest his religion or belief in

teaching practice worship and observance71

The policies implemented by Chinese authorities

through use of coercion violent repression and imprisonment impinge upon the freedom of

Tibetans to practice their religion freely China has also strictly enforced re-education programs

for dissident factors within the state The program is aimed at ―combating separatism protecting

stability and promoting development and is intended to reform the political ideology of people

who refuse to accept state control of what they perceive as vital aspects of their religious lives

and beliefs The committee will be expected to deliberate upon the protection of religious

freedom and practices of individuals as well as the validity of these re-education programs in

light of human rights and liberties

Tibet is not the only region where political tensions surrounding autonomy run high The

Kosovo-Serbian conflict is pertinent to recall The Republic of Kosovo declared itself to be an

independent entity on February 17 2008 As of 11 October 2011 85 UN states recognize the

independence of Kosovo However Serbia maintains that Kosovo is a UN governed entity under

67

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 68

httpwwwfreetibetorgabouttorture 69

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 70

Ibid 71

httpwwwunorgendocumentsudhr

UNHRC 19 of 44

its sovereignty Russia and China are among those who do not recognize the Republic while the

USA UK and France have recognized Kosovolsquos declaration of independence This highlights the

rift between the United Nations Security Council over the issue The case of Tibet is all the more

important in light of the fact that many such pockets exist in the world struggling for self-

determination

Media Links

httpwwwfreetibetorgnewsmedia2008-protests-summary

httpwwwguardiancoukworldgallery2008mar19tibetchinapicture=333178281ampindex=7

Chinarsquos Violation of Ethnic Minority Rights

One of the greatest blemishes on Chinalsquos human rights record is in the area of ethnic minorities

and the extent to which China protects ethnic minority rights On paper Chinalsquos policies are

based on ethnic equality and regional ethnic autonomy Ethnic minorities are supposed to be

benefitting from preferential policies in the political economic cultural and educational spheres

However the ground realities are infinitely different Questions have been raised over the extent

to which the government fairly provides services to these minorities and allocates resources

equally to them The Chinese government is seen to largely prefer its Han majority The

minorities claim they are exploited for their resources and in turn not even provided with the

same level of social services as the Han people China is an atheistic government and the fact

that many ethnicities garner their identity in major part from their religious affiliation leads to a

precarious situation The Mongols Tibetans and Uighurs all come to mind when discussing the

issue of China and ethnic minority rights

―Everyone is entitled to all the rights and freedoms set forth in this Declaration without

distinction of any kind such as race colour sex language religion political or other opinion

national or social origin property birth or other status Furthermore no distinction shall be

made on the basis of the political jurisdictional or international status of the country or

territory to which a person belongs whether it be independent trust non-self-governing or

under any other limitation of sovereignty

- Article 2 Universal Declaration of Human Rights

The International Convention on the Elimination of Racial Discrimination defines racial

discrimination as any distinction exclusion restriction or preference based on race colour

descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the

recognition enjoyment or exercise on an equal footing of human rights and fundamental

UNHRC 20 of 44

freedoms in the political economic social cultural or any other field of public life72

It is due to

this that the international community has adopted the norm of subsuming ethnicity under the

terminology of race

―The Peoples Republic of China is a united multi-ethnic country So far 56 ethnic groups have

been identified and recognized by the central government The population of various ethnic

groups differs greatly While the Han ethnic group has the largest population and that of the

other 55 ethnic groups is relatively small so they are customarily referred to as ethnic

minoritieslsquo According to the fifth national census conducted in 2000 the population of all the

55 ethnic minority groups totaled 10449 million accounting for 841 percent of the total

population of China73

Chinas official 55 minorities are located primarily in the south west

and north of China Only Tibet and Xinjiang have a majority population of official minorities

while all other provinces municipalities and regions of China have a Han majority

One of Chinalsquos autonomous regions is the Xinjiang Uighur Autonomous Region (XUAR)

located in western China The area is vast accounting for one sixth of Chinalsquos land and houses

around 13 major ethnicities including the Uighurs who are a predominantly Muslim people with

origins in Central Asia The Uighurs have had strained ties with the state and have often resisted

Chinese authority74

In turn the Chinese government has reacted sometimes violently against

restless factions in the region One of the most passive aggressive forms of response on the part

of the Peoplelsquos Republic has been the encouragement of the migration of the Han people ndash

Chinalsquos ethnic majority ndash to the XUAR75

Around 90 of Xinjiangs population comprised of

Uighurs in 1949 now it is estimated that Uighurs make up only about 45 of the population76

The policies in Xinjiang are said to be designed to ―promote economic development not

demographic change In reality though the influx of migrants has amplified Uighur discontent

as Han and Uighurs compete over limited jobs and natural resources77

The United Stateslsquo

Congressional-Executive Commission on China reported that in 2006 the XPCC (Xinjiang

Production and Construction Core) reserved approximately 800 of 840 civil servant job openings

for Han Chinese78

One of the causes of the Han monopoly in the employment sector is the

linguistic advantage afforded to them and perpetuated by the education system As part of its

efforts to implicitly impose a unified culture the language policy was altered by the state with

an increased focus on use of Mandarin in schools at the expense of the local languages

Methods of education special to the ethnic peoples of the XUAR including the Muslim Uighurs

are suppressed For example a campaign by the PRC in 2001 targeted religious teachers and

72

httpwww2ohchrorgenglishlawcerdhtm 73

httpenglishgovcnofficial2005-0728content_18127htm 74

httpwwwcfrorgchinaeast-turkestan-islamic-movement-etimp9179 75

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p8 76

httpnewsbbccouk2hiasia-pacific3330803stm 77

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p4 78

httpwwwcolumbiaeducunewsclips20080801UighursTWPOSTpdf

UNHRC 21 of 44

endeavored to sever ties between mosques and groups involved in allegedly ―separatist

activities Around 8000 imams were required to undergo ―political reeducation in this regard

and become ―patriotic religious personalities Ethnic minorities are educated in ways that do not

allow them to learn their own languages or practice their own religion In 2001 for example a

Muslim girl was expelled from school for praying 79

Moreover in an attempt to further its socialist agenda and bind ethnic minorities together

minority cultural activities are often hindered In its place nationalistic values are given a

premium and integrated into society so as to tie the entire country in a unified Chinese foldlsquo

Resultantly an asymmetry with regards to the provision of services and protection of cultural

identity can be found in almost every ethnic minority region in the country The repression

against minorities has wider implications on the human rights situation for all This leads to

creation of a vindictive attitude among the minorities not only against the government but also

the Han majority

In July 2009 this attitude manifested itself in

the form of severe riots between the Han and

Uighur communities in Xinjianglsquos capital city

Urumqi Ethnic tensions elevated to the point

that police involvement was made necessary

According to Chinese state media at least 150

people were killed and more than 800 were

injured The riots were reportedly sparked by a

Uighur protest over the ethnically motivated

killing of two Uighur workers in the southern

province of Guangdong

On the topic of allegations of separatism it is interesting to note that post 911 it has been noted

that the Chinese government has used concerns about terrorism as a method for suppressing

ethnic activity This is possible through the characterization of certain ethnicities as having

fundamental leanings The Muslim Uighurs fell under fire for this very reason after the

September 2001 attacks

One of the ways that the Chinese government with its Han leanings has asserted its presence in

the region is through the smokescreen of the XPCC The Peoplelsquos Liberation Army and the

XPCC are present in the region per the government to ―consolidate border defense accelerate

79

wwwminorityrightsorgdownloadphpid=29 Page 30

UNHRC 22 of 44

Xinjianglsquos development and reduce the economic burden on local governments and the local

people of all ethnic groups80

The heavy militarization of ethnic minority

regions also enables the Chinese government

to quickly respond to skirmishes between the

minorities and the Han For example clashes

between the Uighurs and the Han in the

XUAR are quickly clamped down upon The

response by Chinese authorities always

focuses on the minority groups in the region

The typical response includes a period of

strike hardlsquo security measures during which the minorities are subjected to police patrols of

crowded areas identity checks street searches increased criminal investigations and accelerated

trials The measures also include mandatory political indoctrination classes for the Uighur

population Swift Chinese response to ethnic dissidence precludes the possibility of trying

protestersrioters under due process This phenomenon also contributes to the controversy of

China and its policy of arbitrary imprisonment

Essential to any countrylsquos social progress is the protection and provision of the basic rights to all

its citizens For a country like China which has a significant standing in the international

community the degree to which human rights are upheld comes under added scrutiny Minorities

need to be guaranteed provision of not only fundamental rights but additional ones that grant

them equal opportunities

Recent Developments

3 November 2010 UN Secretary General pushes China on human rights

Ban Ki-moon the United Nations secretary general has called on China to respect human rights

after critics accused him of dodging the issue on a trip to Beijing The UN secretary general met

Hu Jintao the Chinese president but failed to challenge Mr Hu on the imprisonment of Liu

Xiaobo the democracy activist who was awarded this years Nobel Peace prize and raise the

issue of human rights81

80

httpwwwchinaorgcne-white200305269htm 81

httpwwwtelegraphcouknewsworldnewsasiachina8107148UN-Secretary-General-pushes-China-on-human-

rightshtml

UNHRC 23 of 44

5 November 2011 Yeqing Ji from Shanghai China will most likely not be able to have children

after she said two forced abortions physically impaired her uterus82

8 September 2011 The Chinese government has renewed Googlelsquos license to allow it to

continue operating its local website in the country83

13 November 2011 Seven months ago

Chinese police detained the countrylsquos most prominent artist Ai Weiwei at the airport and drove

him to a hidden location It was the beginning of what is to be a two-and-a-half month nightmare

for the architect and sculptor who is also a former darling of the Communist Party who later

turned into an outspoken government critic Ai was held on vague charges of economic crimes

was kept in isolation and subjected to Kafka-esque interrogations84

April 19 2011 Amnesty International a 21-year-old monk Phuntsog set himself on fire in an

apparent anti-government protest in March 2011 Instead of putting out the flames Chinese

police beat the young monk creating huge resentment in the monastery85

At least 11 ethnic

Tibetans have been detained for protesting against the event and against government policies

They are at risk of torture and other ill-treatment86

29 May 2011 300 Tibetan monks detained in Kirti monastery by Chinese security forces87

15 September 2011 Chinese Uighurs economic fears

Amid ethnic tensions minority regards modernization plans in Xinjiang as favoring Han Chinese

migrants88

20 November 2011 Another of Chinalsquos minorities the Hui Muslims in Ningxia do not feel

stigmatized

―There is an important reason why Hui and Han Chinese get along with each other Unlike

Muslims of the other ethnic minorities like Uighur Kazakh Kyrgyz and Tajik the Hui Muslims

speak Mandarin just like the Hans89

82

httpabcnewsgocomBusinesswoman-china-forced-abortions-leaves-unable-

childrenstoryid=14880884Tsia7LIk6so 83

httpwwwbbccouknewsbusiness-14832392 84

httpwwwthedailybeastcomnewsweek20111113ai-weiwei-speaks-out-on-his-detentionhtml 85

httphradvorgaggregatorsources10 86

httpwwwamnestyorgenlibraryassetASA170212011end75f7611-be66-4d5a-9391-

c80c43501d56asa170212011enhtml 87

httphumanrightshouseorgArticles16503html 88

httpwwwaljazeeracomvideoasia20110920119158016969449html 89

httpwwwtodayszamancomnews-263322-chinas-hui-muslims-do-not-feel-stigmatizedhtml

UNHRC 24 of 44

Conclusion

The United Nations Human Rights Council at LUMUN 2012 will be looked upon to provide a

framework for the resolution of these issues in a universal context The scope of the issues

should be expanded and applied to countries other than China The committee will have to make

recommendations which have universal application and resolve all aspects of the issue

comprehensively For any queries related to the study guide please do contact either (or both)

the committee directors at the given addresses

UNHRC 25 of 44

Topic Area B Abolishing the Death Penalty

Introduction to the Topic Area

The death penalty is formally defined as the execution of an offender sentenced to death after

conviction by a court of law of a criminal offenselsquo90

The concept of a capital crime is subjective

and states have made use of this practice in response to multiple forms of crime The use of the

death penalty has produced much controversy with regard to its apparent violation of

fundamental human rights as delineated in the Universal Declaration of Human Rights and

subsequent human rights charters and treaties It is asserted that the use of death penalty is in

contravention to the peopleslsquo right to life promised to every individual under Article 3 of the

Declaration91

Moreover Article 2 of the Charter of Fundamental Rights of the European Union

lucidly bars the imposition of death penalty as a form of punishment92

Arguments against the

use of death penalty are also made on the grounds of inhumane methods which are employed to

see out the process Historically multiple methods have been used which include death by

hanging severing of the head lethal injection shooting and electrocution93

94

As a response states have made keen efforts to abolish

the death penalty particularly in the last two decades as

can be interpreted from the graph on the right which

represents the number of states that have abolished the

death penalty Countries belonging to the European

region with the exclusion of Russia and Belarus have

sought to revoke the use of the practice The death

penalty is most commonly seen to be a formal practice

in most of the developing countries The trend is

apparent in Latin America Africa and Asia

96 countries have formally abandoned the use of death penalty 58 countries allow the use95

Other states have abolished the penalty in practice but the laws remain in place for the

imposition of the penalty as a response to certain crimes The imposition of the death penalty has

90

httpwwwbritannicacomEBcheckedtopic93902capital-punishment 91

httpwwwunorgendocumentsudhr 92

httpwwweuroparleuropaeucharterpdftext_enpdf 93

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffle

re-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 94

httpwwwdeathpenaltyinfoorgmethods-execution 95

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf

Figure 1 (Drag to enlarge)

UNHRC 26 of 44

seen a decline over the recent years with a fall in the number of executions that take place

annually It would however be incorrect to assume that the practice is not prevalent or widely in

effect Amnesty International reported that at least 2024 new death sentences were imposed in 67

countries in 2010 Moreover there were at least 17833 people sentenced to death worldwide at

the end of 201096

Again these are minimum figures which are the safest that can be inferred

from the given research There were 527 known executions carried out in 2010 globally97

This

figure however does not include the number of executions that took place in China where

analysts believe that more than a thousand people were put to death in the past year

The statistics represent the number of people executed through capital punishment One way to

formally define capital punishment is to regard it as the state sanctioned killing of an individual

through a judicial process as a punishment for a crime (defined as a capital crime by the state)98

Capital punishment is the most obvious and prevalent manifestation of the death penalty It is

often perceived as a statelsquos right in order to preserve law and order against any individual who

engages in serious crimes that threaten other individuals or the state Those who advocate against

the use of capital punishment label it as a symptom of a culture of violence not a solution to

itlsquo99

The controversy surrounding the topic is based on the legal ethical and moral acceptability

of the statelsquos right to an individuallsquos life The debate entails several social and economic factors

some of which will be reviewed in closer detail in the relevant section of this guide

One of the most striking aspects related to the issue is the imposition of the capital punishment

on juveniles The sentencing of juveniles to death is in clear breach of international law The

morality and validity of such a practice is often called into question and has been put under

relentless scrutiny despite all of which the practice is still carried out in a number of countries

Historically the United States China and Iran have the worst records relating to juvenile death

sentences100

The study guide also includes a separate section for the case of juveniles in which

the legal and social aspects of the problems are detailed

As stated states have made use of the death penalty to punish crimes of varying natures The use

of the death penalty is reserved for only the most seriouslsquo crimes as put forth in international

law101

The notion of a capital crime however is a subjective one states that have doled out

death sentences have defined it differently In certain countries the death penalty is only used to

charge criminals accused of war crimes In other countries the penalty is reserved for crimes like

96

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf 97

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010 98

httpusersrcncommwooddeathpenhtml 99

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 100

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 101

httpwwwunorgdocumentsecosocdocs1995e1995-78htm

UNHRC 27 of 44

murder rape or even robbery States also use the death penalty against individuals who are guilty

of treason The issue however is that many states practicing the death penalty impose the

punishment even when the crimes do not meet the threshold for the aforementioned most

seriouslsquo crimes The ability of states to define what constitutes as a capital crime has led to states

abusing their powers as has been observed in the sentences ordained by military courts

Moreover even the radicals who make the argument of the punishment fitting the crime agree

that in many instances individuals have been executed for softlsquo crimes crimes that were

certainly not tantamount to charges of murder or crimes against humanity The issue of apparent

violations of human rights is further exacerbated in these instances The study guide will discuss

the universal crimes that have resulted in the awarding of the death penalty and examine the

issue further The committee will be expected to discuss the feasibility of drawing up an

international definition of crimes which in isolated instances perhaps may be appropriate for a

sentence like the death penalty

Another pertinent aspect surrounding the debate is that of extrajudicial killings The execution of

a person by state authorities without the authority of a judicial proceeding is termed as an

extrajudicial killing Many states have used extrajudicial killings to establish their authority and

order without having to wade through the legal process By doing so they have deprived scores

of people of their fundamental right to free and fair trials Governments have also employed this

tactic to exercise political aggression and to suppress dissent A particular point of concern is the

fact that some states have made use of these killings even when they have officially revoked the

imposition of the death penalty Extrajudicial killings are carried out persistently in many

countries ndash the list includes countries like Iran Iraq Israel Philippines102

Most recently the

killing of Anwar al-Awlaki and Samir Khan in Yemen by a sanctioned National Security Council

move by the USA was an example of states embarking on such paths to eliminate threats to

national securitylsquo103

102

Multiple citations for each country can be found in the second paragraph article titled Extrajudicial killinglsquo on

Wikipedia 103

httpwwwtelegraphcouknewsworldnewsbarackobama7564581Barack-Obama-orders-killing-of-US-cleric-

Anwar-al-Awlakihtml

UNHRC 28 of 44

Wrongful convictions lead many to believe in the inherent incapacity of the death penalty to

serve justice On September 21 2011 US citizen Troy Davis was executed in Georgia after

which seven of the nine witnesses who testified against him in the case that led to his execution

recounted or retracted their evidences A petition with nearly one million signatures was put

forth to reconsider his case it was rejected On the same day a 17 year old boy was publicly

hanged in Iran for killing a popular athlete his justification based on self-defense was ignored

Also on the same day a Pakistani national was executed in China on grounds of drug trafficking

an offence that does not often result in capital punishment The need for the resolution of this

issue is pressing and the committee needs to deal with all aspects of the problem in a

comprehensive and enduring manner104

Capital Punishment

In 2010 23 countries implemented capital punishment A total of 527 executions (plus the 1000+

carried out in China alone) were known to have taken place with Iran Yemen USA and North

Korea meting out a significant number of sentences105

The figure is lower than the records

computed for years past There are more states which are now abolitionist either in law or in

practice with regard to the imposition of the punishment Gabon was officially the last country

to rescind the practice while bills calling for an end to capital punishment have been presented

to parliaments in Lebanon Mali Mongolia and South Korea106

Renewed efforts are

104

httpwwwamnestyorgennews-and-updatesus-executes-death-row-prisoner-troy-davis-2011-09-21 105

httpwwwguardiancouknewsdatablog2011mar29death-penalty-countries-world 106

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010

UNHRC 29 of 44

simultaneously being made on the international front to implement laws against capital

punishment A third resolution establishing a moratorium on the use of death penalty passed the

UN General Assembly on December 21 2010107

Despite the increasing momentum towards an eventual elimination of the practice the number of

executions taking place annually is a cause of major concern Advocates of the death penalty

assert that the practice is an effective means of deterring crime in society Public executions are

often held in Iran Afghanistan and Palestine for example to demonstrate the fate awaiting

those who commit similar crimes108

Arguments are made on the grounds of justice that it is

proper and fair to take an eye for an eye and a life for a life and that some individuals deserve

it for the crimes they commit

Those opposing the practice question the morality of an action sanctioned by the state which

endorses deprivation of the right to life a fundamental human right under the Universal

Declaration of Human Rights109

There are inescapable flaws within legal systems which are

aggravated by discrimination prosecutorial misconduct and inadequate legal representation

Moreover the risk of executing the innocent can never be eliminated110

An alternative is

presented in the form of imprisonment for life without parole which results in a parallel debate

is imprisonment for life a viable surrogate to the practice of death penalty A thread from this

debate also relates to the economic feasibility of carrying out a death sentence as opposed to the

feasibility of imprisonment for life

Deterrence

Capital punishment is often propagated as an adequate approach in the deterrence and prevention

of crime The logic is that if murderers are sentenced to death potential murderers will think

twice before killing for fear of losing their own life The deterrence theory presumes that the

once the punishment for a certain crime is established the criminal by committing the crime

voluntarily assumes the risk of receiving the prescribed punishment for the crime Only when the

most severe punishment has been set will there be a possibility of an individual evaluating their

actions in light of the consequences111

107

httpwwwundemocracycomA-RES-62-149pdf 108

httpwwwamnestyorgennews-and-updatessharp-rise-public-executions-iran-executes-first-juvenile-

offenders-2011-2011-04-27 109

wwwunorgendocumentsudhr 110

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 111

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 30 of 44

The death penalty it is asserted ensures that convicted criminals do not offend again moreover

it is deemed to be a just penalty for atrocious crimes It is further alleged that many criminals

who are set free even after lengthy sentences regress and go on to commit heinous crimes

Therefore there should never be the possibility of a release clause112

The deterrence theory is modeled on the grounds of human psychology logic and rationale As a

professor of jurisprudence Ernest van den Haag PhD wrote ―Common sense lately bolstered

by statistics tells us that the death penalty will deter murder if anything can People fear nothing

more than death Therefore nothing will deter a criminal more than the fear of death These

statements were further validated by a US Supreme Court Justice who said on record that

Prima facie the penalty of death is likely to have a stronger effect as a deterrent to normal

human beings than any other form of punishmentlsquo113

Numerous studies have been conducted on

the subject with varying results One of the most established studies was conducted in USA

using a panel data set of over 3000 counties from 1977 to 1996 which concluded that on

average one death sentence resulted in 18 fewer murders114

Delegates will be expected to be

familiar with other similar studies

These studies are commonly refuted as not crediblelsquo by opponents of the capital punishment

who also deny the correlation between crime and death penalty as a fabricated relationship which

cannot be empirically established115116

A study of the relationship between capital punishment

and the incidence of murder was conducted for the UN in 1988 and updated in 2002 The

conclusion was ―The investigation has not provided scientific proof that executions have more

deterrent effect than life imprisonment It is unlikely that such evidence will ever come

Deterrence hypothesis finds no support in the survey117

Another counter-argument asserts that crime is still a persistent feature of the societies that

continue to award the death penalty while many of the abolitionist states enjoy low crime rates

This can be evidenced by comparing the crime rate in USA or Pakistan with that of Canada or

some European state In Canada for example the homicide rate per 100000 fell from a peak of

309 in 1975 the year before the abolition of the death penalty for murder to 241 in 1980 and

in 2003 27 years after abolition the homicide rate was 173 per 100000 44 per cent lower than

in 1975118

112

httpwwwdeathpenaltyinfoorgfacts-about-deterrence-and-death-penalty 113

httpdeathpenaltyproconorgviewresourcephpresourceID=002000 114

httpdeathpenaltyproconorgsourcefilesThe20Deterrent20Effect20of20Capital20Punishmentpdf ndash

Delegates should carefully examine certain parts of this document to establish the credibility of the assertions made

They should also invest in trying to locate studies that refute the assertions made in this and similar studies 115

httpwwwdeathpenaltyinfoorglaw-enforcement-views-deterrencelawenforcement 116

httpwwwdeathpenaltyinfoorgDonohueDeterpdf 117

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 118

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml

UNHRC 31 of 44

The lack of evidence on the production of a unique deterrent effect points to the danger of

relying on the deterrence hypothesis as a basis for public policy on the death penalty

Retribution amp Morality

An important terminology that delegates need to familiarize themselves with is that of

―retributivism119

It is defined as ―a policy of criminal justice that sponsors the punishment of

criminals in retribution for the harm they have inflicted120

Criminals deserve to be punished in

proportion to the gravity of their crime regardless of whether the victim or anyone else desires

it we may all deeply regret having to carry out the punishment but consider it warrantedlsquo is

what many say in defense of the theory121

The need for the establishment of a visibly just state arises from the potential risks of not having

one As has been visible in many developing countries with shaky legal systems when criminals

are not adequately punished for their unlawful behavior the public takes the law into its own

hands and deals out vigilante justice It is asserted that retributivism is essential for a functioning

society where individuals respect the supremacy of law

The concept of retribution in society is also grounded in religious beliefs The concept of an eye

for an eye has been a part of all three Abrahamic traditions However in the modern world it is

Islamic nations that still retain the practice based on these grounds Similar traditions can be

found in Hinduism Christianity and Buddhism as well as other religions in different parts of the

world In many non-secular countries the constitutions and state laws are derived from religious

doctrines

Opponents dismiss this aspect of the argument as being emotionally charged with little rational

logic to support the contention They claim that the establishment of capital punishment gives

birth to a culture of violence endorsed by the state It perpetuates the cycle of aggression and

brutality something which the state should be actively inhibiting not endorsing

Wrongful Convictions

The death penalty carries with it the danger of wrongfully convicting an innocent person for

crimes he did not commit There is the potential for capital punishment to evolve into sheer

miscarriage of justice as in certain circumstances states are often seen to rush the trials and

convict the accused hastily This practice takes foremost apparently in military courts often in

119

Cavadino M amp Dignan J (1997) The Penal System An Introduction (2nd ed) p 39 London Sage 120

httpdictionaryreferencecombrowseretributivism 121

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 32 of 44

the developing or lesser-developed countries where the system of law is not properly established

It is not however exclusive to these countries Examples can be drawn from countries like

Philippines Thailand Iran and Palestine to name just a few where executions are carried out at

alarming pace removing the possibility of reviews

On 15 August 2004 Atefah Rajabi Sahaaleh was hanged in a public square in the Iranian city of

Neka Her death sentence was imposed for adultery and crimes against chastity122123

Atefah

was executed a week after the trial was run Following the execution the Judge for the case was

arrested for investigation by the Intelligence Ministry The media reported that in addition to the

confession of his rape of Atefeh Judge Rezai who served as judge jury and executioner also

confessed to torturing her during interrogations to extract names of others she had relations with

No transcripts from court proceedings were recorded The State alleged that Atefah was 22 at the

time of her execution A witness later claimed The judge just looked at her body because of

the developed physique and declared her as 22124

ndash her birth certificate revealed she was born

in 1988 Furthermore Atefah did not have access to a proper defense where she could contest

charges leveled against her This is one example of many such cases of miscarriage of justice

Something that recurs in these cases is the failure of the police or prosecuting authorities to

prevent the use of unreliable witnesses the misuse of evidence or confessions and the provision

of inadequate defense representation The advent of DNA profiling and the use of it as positive

evidence in criminal cases has resulted in the exoneration of multiple death row inmates on

grounds of forensic evidence or lack thereof Since 1973 138 people have been released from

death row in the United States after it was proven that they were innocent125

In 2009 Paul

House was cleared of murder and exonerated in Tennessee USA after having served 22 years

on death row His innocence was proclaimed in light of substantial additional DNA testing and

further investigationlsquo 126

Amnesty International has noted examples of wrongful convictions from elsewhere as well

including Jamaica Japan China Nigeria and Tanzania127

Paul G Cassell a former law clerk to

the Chief Justice of USA stated the mistaken release of guilty murderers should be of far greater

concern than the speculative and heretofore nonexistent risk of the mistaken execution of an

innocent personlsquo highlighting the case made by those who advocate the death penalty even in

light of wrongful convictions128

122

httpwwwcosmolearningcomdocumentariesexecution-of-a-teenage-girl1 123

httpnewsbbccouk2hi5217424stm 124

httpnewsbbccouk2hi5217424stm 125

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 126

httparticlescnncom2009-05-13justicetennesseeexonerated_1_death-row-inmate-dna-evidence-house-

arrest_s=PMCRIME 127

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 128

httpdeathpenaltycurriculumorgstudentcaboutargumentstestimony3bhtm

UNHRC 33 of 44

Alternative to Death Penalty

All abolitionist states have reverted to the practice of sentencing criminals to life imprisonment

(some without parole) which is also termed as death by incarceration Widely regarded as a more

humane course of action life imprisonment is also alleged to be a more economical practice

While ensuring public safety by keeping criminals away from society this system also saves the

lives of innocent people who have been falsely or wrongfully convicted The setup inhibits and

curbs the cycle of violence while retaining the deterrence factor it is strongly asserted

Advocates for the death penalty are averse towards life imprisonment for a number of reasons

They cite the unreliability of the system as one of the flaws which impedes the possibility of

such a sentence being successful A certain James Moore serves as a valid example in this case

In 1962 James Moore raped and strangled 14-year-old Pamela Moss The victimlsquos parents opted

out of capital punishment for Moore and he was instead sentenced to life in prison without

parole Twenty years later a change in sentencing laws in 1982 renders James Moore eligible for

parole every two years129130

Kenneth McDuff is another example McDuff was convicted and sentenced to life imprisonment

Years later due to the issue of overcrowding in prisons McDuff was released following which

he killed eight more people McDufflsquos example is of an individual from a developed country

with an established legal system in place131

Overcrowding is a feature of prisons in developing

or lesser developed countries In many such states criminals have also been known to easily

break out from penitentiaries

The economic aspect of the debate is murky at best There is a lack of empirical data on the

subject which is why the arguments of both these sides cannot be settled beyond doubt

Advocates of capital punishment insist that the overall costs of the practice are far lesser than the

costs of housing an inmate for a lifetime132

They also suggest that the life imprisonment allows

criminals to conceive new habeas corpus petitions which on legal grounds cannot be rejected

automatically resulting in more trials

On the other hand substantial arguments are made which stress that the cost of legal proceedings

in capital cases is in truth more than that of other cases States and nations spend a significant

portion of the taxpayerlsquos money in meting out such punishments133

Delegates when addressing

this portion of the debate will need to be aware of the financial aspects of the issue as it forms

for many states an important part of whether capital punishment should be revoked or

not

129

httpwesleylowecomcphtmldeter 130

httpwwwnytimescomkeywordparole 131

httpwesleylowecomcphtmldeter 132

Ibid ndash view section titled Capital Punishment and its costslsquo 133

httpwwwamnestyusaorgour-workissuesdeath-penaltyus-death-penalty-factsdeath-penalty-cost

UNHRC 34 of 44

Imposition of Death Penalty on Juveniles

The prohibition on the death penalty for crimes committed by juvenile offendersmdashpersons under

age 18 at the time of the offensemdashis well established in international law specifically in the

Convention on the Rights of Child

ldquoNo child shall be subjected to torture or other cruel inhuman or degrading treatment or

punishment Neither capital punishment nor life imprisonment without possibility of release shall

be imposed for offences committed by persons below eighteen years of agerdquo134

- Article 37(a) Convention on the Rights of Child

ldquoSentence of death shall not be imposed for crimes committed by persons below eighteen years

of age and shall not be carried out on pregnant womenrdquo135

- Article 6(5) International Covenant on Civil and Political Rights

The treaties are a unanimously agreed set of non-negotiable standards and obligations By

acceding to the treaties and ratifying them governments commit to protecting and ensuring

childrens rights and to holding themselves accountable for this commitment before the

international community

Even though the practice of capital punishment on juveniles is relatively rare however in clear

contravention of international law nine countries have executed offenders who were juveniles at

the time of their crimes between 1990 and 2005136

These countries include the Peoples Republic

of China (PRC) the Democratic Republic of the Congo Iran Nigeria Pakistan Saudi Arabia

Sudan the United States and Yemen137

The USA has since moved to implement a ban on capital

punishment for juveniles However in most other countries of the preceding list the practice is

still enshrined in the judicial system Iranlsquos record in particular has been abominable over the last

decade It has carried out 39 executions of persons under the age of 18 since 2005 Presently

over a hundred individuals are placed on death row for crimes committed as juveniles The

executions of Mahmoud Asgari Ayaz Marhoni and Makwan Moloudzadeh became international

symbols of Irans child capital punishment and the judicial system that hands down such

134

httpwww2ohchrorgenglishlawcrchtm 135

httpwww2ohchrorgenglishlawccprhtm 136

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf - This document by the Human Rights Watch

called The Last Holdoutslsquo is a good summary of juvenile executions and should be reviewed 137

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 - Contains a list with

statistics and details of countries which have allowed the imposition of death sentence to juveniles

UNHRC 35 of 44

sentences138139140

Saudi Arabia and China too have questionable records that need to be

scrutinized further

While regional treaties and charters usually substantiate international law the Arab Human

Rights Charter of 2004 is unique among regional and international treaties in that the ban on the

juvenile death penalty in it is not absolute but merely optional141

Furthermore national laws in states that observe such a practice are in violation of

international legally-binding charters In Iran and Saudi Arabia laws usually treat a child the

same way as an adult criminal offender would be treated Article 10(3) of the International

Covenant on Civil and Political Rights emphasizes the need for demarcation between the

handling of children and that of adults in stating ―Juvenile offenders shall be segregated from

adults and be accorded treatment appropriate to their age and legal status142

The definition of a child in these Muslim states is unclear as adulthood is associated with

attainment of puberty which is a relative concept The Committee on the Rights of the Child in

January 2005 censured the Saudi government for its practice of imposing the death penalty on

juveniles terming it a serious violation of the fundamental rights The committee was deeply

alarmed over the discretionary power judges hold to treat juveniles as adults as was stated in

the committeelsquos report Iran too was strongly condemned following the release of an

international report highlighting the dire situation in Iran by the International for Human Rights 143

138

httpwwwfoxnewscomstory0293329798200html 139

httpnewsbbccouk2himiddle_east7130380stm 140

httpenwikipediaorgwikiCapital_punishmentIran 141

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 142

httpwww2ohchrorgenglishlawccprhtm 143

httpwwwfidhorgIMGpdfRapport_Iran_finalpdf

UNHRC 36 of 44

On August 19 2008 Iranian authorities executed Seyyed Reza Hejazi at Isfahan Central Prison

for his role in a murder committed in 2003 when he was 15 Hejazi was tried as an adult by

Branch 106 of the Isfahan General Court even if he did not qualify as one under international

stipulations and sentenced to death on November 14 2005144

In Saudi Arabia Mu`id bin

Husayn bin Abu al-Qasim bin `Ali Hakami was executed on July 10 2007 for a murder he

allegedly committed three years earlier when he was 13 years old145

The judges in these states

because of the implementation of the Sharialsquo law have a large amount of discretion with regard

to their rulings This discretion is often abused in the interrogation and judicial proceedings In

Pakistan authorities hanged Mutaber Khan in Peshawar Central Prison on June 13 2006 on

charges of murder of five people The fact that he was held in the juvenile wing of Peshawar

Central prison and the evidence presented by the accused confirming that his age was below 18

at the time of the killings were not taken into account during the trials and Mutaber was charged

as an adult in the case146

While the above does not cover exhaustively the practice of capitally punishing juveniles the

committee is expected to be well read on the matter The committee will be required to devise

ways to strictly apply the existing international law on the subject to curtail further deaths of

juveniles by states A series of recommendations on better implementation of international

covenants will be expected from the committee Delegates at UNHRC will also have to

familiarize themselves with the stipulations in the national laws of countries practicing juvenile

death penalties (Iran Saudi Arabia Pakistan Nigeria Sudan Yemen and UAE among others) to

discuss how these states are constitutionally able to bend international law and mete out the

illegal punishments

144

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 145

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 146

See FIDH and Human Rights Commission of Pakistan ―Slow march to the gallows and ―Condemned Prisoner

Executed Dawn Newspaper Karachi June 14 2005 httpwwwdawncom20060614nat16htm

UNHRC 37 of 44

Universality of Laws Incurring the Death Penalty

In countries which have not abolished the death penalty capital punishment may be imposed

only for the most serious crimes it being understood that their scope should not go beyond

intentional crimes with lethal or other extremely grave consequences

- Safeguards guaranteeing protection of the rights of those facing the death penalty147

Laws incurring the death penalty or capital crimes have certain uniformity the world over This

is of course barring states that are religiously affiliated and whose law systems are not secular

in nature The list of capital crimes for those states with non-secular legal systems is slightly

different The Human Rights Commission had decided that the imposition in the State party of

the death penalty for offences which cannot be characterized as the most serious including

apostasy committing a third homosexual act illicit sex embezzlement by officials and theft by

force are incompatible with Article 6 of the Covenant Economic offences including

embezzlement drug related offences political offences and robbery were also referred to148

The reason why looking into capital crimes and trying to garner a global impression of them is

important is that the death penalty can only realistically be abolished in a piecemeal way This

process will entail shortening the list of capital crimes The UN formally notes that ―in order

fully to guarantee the right to life provided for in article 3 of the Universal Declaration of

Human Rights the main objective to be pursued is that of progressively restricting the number of

offences for which capital punishment may be imposed with a view to the desirability of

abolishing this punishment in all countries149

The first established death penalty laws date as far back as the Eighteenth Century BC in the

Code of King Hammaurabi of Babylon which codified the death penalty for 25 different crimes

By the 1700s 222 crimes were punishable by death in Britain including stealing cutting down a

tree and robbing a rabbit warren In the 19th

century the death penalty was eliminated for over

100 of the 222 crimes punishable by death 150

In modern times the UN Special Rapporteur on

extrajudicial summary or arbitrary executions has stated that the death penalty should be

eliminated for economic crimes and drug-related offences and that the restrictions to its use

―exclude the possibility of death sentences for so-called victimless offences ndash including acts of

treason espionage and other vaguely defined acts usually described as crimes against the Statelsquo

or disloyaltylsquo and ―actions primarily related to prevailing moral values such as adultery and

prostitution as well as matters of sexual orientation151

147

httpwww2ohchrorgenglishlawpdfprotectionpdf 148

httpwwwunhchrchtbsdocnsf0bc310a747155dff88025655300537faeOpendocument 149

General Assembly resolution 2857 httpwwwunodcorgpdfcompendiumcompendium_2006_part_01_05pdf 150

httpdeathpenaltycurriculumorgstudentcabouthistoryhistoryPDF 151

httpswwwabofimedia24259report10pdf

UNHRC 38 of 44

Contrary to the made recommendations even political dissent warrants a death sentence in

several countries most notably in China and Iran In 2010 nearly 20 Kurdish people were

executed for political offences in Iran The country is known for keeping dissent especially from

the Kurds suppressed Most are executed on the grounds of moharebeh or enmity against God

Moreover challenging the power of the Ayatollah is also punishable by death These charges are

neither explicit nor in line with international guidelines over what crimes are punishable

capitally In Iran judges must handle such cases carefully as Iranian law provides for only one

punishment if an individual is found to be guilty of treason Libya too thwarts political dissent

with firm laws in place for punishing by death those who illegally form groups organizations or

associations against the state152

Saudi Arabia too is worth note for its vaguely phrased laws governing capital punishment

Intentional murder and crimes that spread ―mischief in the land (Fasad fil-ardh) merit death In

2010 the government announced that it had executed 26 people all by beheading Crimes that

―spread mischief include witchcraft and sorcery153

How is one convicted of witchcraft in the

21st century What can the international community do when regarding countries such as these

Treason arguably along with murder is the capital crime that has yet to be phased out by many

countries In some such as Brazil treason during warfare is the only crime for which a person

can be sentenced to death In the Gaza Strip under Hamas any sort of cooperation with Israeli

forces during military actions is also punishable by death In others including Algeria Bahrain

Iran and Malaysia treason is punishable by death in all circumstances The United States too has

federal laws governing treason under which traitors ―shall suffer death154

Child sex abuse is another crime that is widely held to merit the death penalty In Russia for

example according to the Russian Public Opinion Research Center an overwhelming majority

consider the death penalty to be an acceptable punishment especially in relation to molestation

155 In 2009 however Russias Constitutional Court effectively abolished the death penalty by

extending indefinitely a 13-year-old moratorium on capital punishment156

Indonesia has some of the strictest penalties for drug related crimes in the world Roughly half of

those on death row are incriminated with drug-related charges157

In 2008 though the most high

profile executions were of terrorists Three of those found responsible for the 2002 Bali

bombings were executed by shooting158

Generally speaking however a significant proportion of

152

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 153

httpwwwstategovgdrlrlshrrpt2010nea154472htm 154

httpdeathpenaltyproconorgviewresourcephpresourceID=1172 155

httpenrianrutrenddeath_penalty 156

httpwwwreuterscomarticle20091119idUSLJ330478 157

httpwwwnytimescom20080711worldasia11iht-indo114421132html 158

httpnewsbbccouk2hiasia-pacific7718246stm

UNHRC 39 of 44

the executions or death sentences recorded (in 2010) in China Egypt Indonesia Iran Laos

Libya Thailand United Arab Emirates and Yemen were for drug-related offences In December

2010 the amended Anti-Narcotics law came into force in Iran extending the scope of the death

penalty to include additional categories of illegal drugs (for example crystal meth) possession

of which became punishable by death Also around the same time the National Assembly of

Gambia voted to extend the scope of the death penalty by making the possession of more than

250g of heroin or cocaine an offence punishable by death159

Several states allow for the death penalty for crimes of blasphemy and other crimes for

nonviolent expression and association In Pakistan Aasia Bibi a Christian mother of five was

charged with blasphemy and sentenced to death after a trial largely believed to be unfair on 8

November 2010 She is currently on death row The country is also noted for its laws concerning

capital crimes The list includes 27 crimes most of which go beyond the notion of ―most serious

crimes as recommended by the International Covenant on Civil and Political Rights Extra-

marital sex and blasphemy are examples of some capital crimes in the country In December

2007 Pakistan voted against a United Nation General Assembly resolution for a moratorium on

the death penalty The year before however the nation amended its law on rape and adultery

charges which are no longer punishable by death160

As far back as 1989 recommendations have been made as to how to abolish the death penalty

Member states (of the UN) have been urged ―to publish for each category of offence for which

the death penalty is authorized and if possible on an annual basis information about the use of

the death penalty including the number of persons sentenced to death the number of executions

actually carried out the number of persons under sentence of death the number of death

sentences reversed or commuted on appeal and the number of instances in which clemency has

been granted and to include information on the extent to which the safeguards referred to above

are incorporated in national law161

The committee must inspect how far this recommendation

has been adopted and should seek to rectify the weaknesses in the system of gradually

abolishing the death penalty Can a target year be designated by which crimes meriting the death

penalty could be made universal How can countries with non-secular legal systems be brought

into the fold of international law

159

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 160

httpwwwfiacatorgenIMGpdfdppakistan-enpdf 161

httpgraduateinstitutechfacultyclaphamhrdocdocsecosocresolutiondeathpen1989html

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 17: UNHRCFINAL

UNHRC 13 of 44

According to the (US) Congressional Executive Commission on China over 5000 cases of

politically or religiously motivated imprisonments have been made It has detailed documented

information on the status of 1452 of these prisoners and

notes that its information is far from complete and that the

true story of Chinalsquos political prisoners remains unknown 43

The plight of political prisoners in China is speculated upon

by various international organizations Among these is the

Human Rights Watch which has gone as far as labeling the

locations for holding political prisoners ―black jails and

―alleyways in hell Officially though the Chinese

government denies the existence of political prisoners Subsequent to Chinalsquos Universal Periodic

Review an outcome report was published which came under fire from various sides The Human

Rights Watch called the substance of the report to be ―manifestly so far removed from reality

that [it] would immediately discredit anybody that adopted them in a report 44

In the report of

the UNHRC Working Group subsequent to Chinalsquos UPR it is stated that the Chinese

government does not use ―state secrets to suppress human rights defenders 45

It is precisely this

situation that our simulation wishes to remedy discussion should be fact based

The ground realities are different In 2010 Chinese activist and human rights defender Mr Liu

Xiaobo was awarded the Nobel Peace Prize He was jailed by Chinese authorities for

distributing his ―Charter 08 a document that called for freedom of expression and of assembly

among other things The government incarcerated him for an 11 year time-period on the charge

of subversion Subsequent to the prize the Chinese government came down hard on other human

rights activists Indeed those celebrating the awarding of the prize to Mr Xiaobo were arrested

arbitrarily While distributing fliers celebrating the win many were imprisoned on the grounds of

―inciting subversion of state power The Report of the Special Rapporteur on the situation of

human rights defenders published in 2011 makes mention of these facts46

The Chinese

government labeled the award an ―obscenity It is vague allegations such as these that allow

governments to thwart dissidents As expected though according to the report of the HRC

Working Group No individual or press has been penalized for voicing their opinions or

views47

When discussing China and political prisoners it is important to mention the Falun Gong

movement It is a spiritual variant of Buddhism and originated in China on the basis of the

teachings of its founder Li Hongzhi The movement was supported within the Chinese

43

httpwwwceccgovpagesvictims20101010_PPD_AR10pdfPHPSESSID=705596c0e91f35e392e6f0ecbb78d6

7c 44

httpwwwhrworgennews20090610human-rights-watch-statement-upr-outcome-report-china 45

httpdaccess-dds-nyunorgdocUNDOCGENG0916299PDFG0916299pdfOpenElement 46

httpwww2ohchrorgenglishissuesdefendersdocsAHRC1644Add1_EFSonlypdf Page 63 47

httpdaccess-dds-nyunorgdocUNDOCGENG0916299PDFG0916299pdfOpenElement Para 71

UNHRC 14 of 44

officialdom initially However Falun Gonglsquos popularity within the masses as well as its

independence from the state and its spiritual teachings was soon perceived as a threat to the

government By the late 1990lsquos the Chinese government cracked down on the movement and

labeled it as a heretical organization Chinese legislation uses the expression ―Xiejiao zuzhi to

refer to a wide range of sectarian or unorthodox religious groups which do not meet official

approval The Falun Gong movement is included in this list48

The Falun Gong followers are the

worldlsquos largest group of prisoners of conscience The PRC often picks up practitioners and

accuses them of ―using an evil cult to destroy implementation of the law 49

China with its strict non-religious government did not take kindly to this new movement that

had garnered millions of followers both within China and internationally between 1992 and the

crackdown in 1999 Today Falun Gong is practiced freely in more than 70 countries around the

world with clubs and associations existing in a range of settings50

Beginning at the turn of the

millennium the authorities started to ban access to websites that contained material about the

movement Indeed a search on the movement on Chinalsquos Xinhua News Agency website will

even today yield nothing (It may be an interesting experiment for delegates to conduct) Those

who reported the initial crackdown were ―followed detained interrogated and threatened

according to a letter written in 1999 by The Foreign Correspondents Club (FCC) of China51

The Falun Gong movementlsquos official website deals with its persecution thus The complex

rationale behind the persecution can be broken into four elements a paranoid dictators fear of

Falun Gongs meteoric growth and soaring popularity that same dictators intense jealousy of

Falun Dafas popularity the inherent conflict between the communist regimes savage political

ideology and its polar oppositemdashFalun Dafas principles of Truthfulness Benevolence

Forbearance and the very nature of communism which to sustain itself requires periodically

labeling a small segment of the population as the class enemy to struggle against52

The Chinese crackdown on Falun Gong practitioners involved a ban on practicing it by the

Chinese Communist Party whose members as aforementioned were interestingly initially

adherents to the movement in significant numbers Indeed the party was divided from within

over their stance on the movement The government formulated an ―anti-cult law a few months

after issuing a warrant for the founderlsquos arrest ―During the first two years of the crackdown

between 150 and 450 group leaders and other members were tried for various crimes and

sentenced to prison terms of up to 18-20 years53

To this day ―central leaders turn a blind eye to

48

httpwwwamnestyorgenlibraryassetASA170112000en7a361a8e-df70-11dd-acaa-

7d9091d4638fasa170112000enhtml 49

httpwww2ohchrorgenglishissuesdefendersdocsAHRC1644Add1_EFSonlypdf 50

httpwwwfaluninfonettopic22 51

httpwwwamnestyorgenlibraryassetASA170112000en7a361a8e-df70-11dd-acaa-

7d9091d4638fasa170112000enhtml 52

httpwwwfalundafaorgengfaqshtmlpersecution 53

httpfpcstategovdocumentsorganization67820pdf Page 4

UNHRC 15 of 44

local methods of suppression against unrepentant practitioners including the reported use of

torture54

Also worth noting is the fact that Chinalsquos judicial system has been alleged to be anything but

conducive to providing justice to those using the system Indeed it is a repressive tool used by

the government to silence dissent China with its vast land mass and various provinces and

municipalities must work hard to keep its Centre strong Scores of individuals who are more

obscure than human rights activists and such are imprisoned by the government while ironically

seeking justice It has long been the custom for people of the countryside to seek justice in

Beijing if they felt that their local authorities had treated them unfairly However modern China

has not taken kindly to this tradition Local authorities are evaluated on the basis of the number

of complaints the Centre receives about them Thus they have a vested interest in thwarting the

reports of any complaints about them to Beijing Those who complain are whisked off to black

jails where ―detainees are denied access to legal counsel and in most cases contact with family

and friends They ―are kept under constant surveillance and subject to often arbitrary physical

and psychological abuse55

Chinalsquos record with regard to political prisoners and its tradition of suppressing dissent are

exacerbated by the sheer scale on which dissent is thwarted The aspect of potential torture of

prisoners further complicates the issue It is troubling that the issue of Chinese political prisoners

only gained international prominence with the case of Mr Liu Xiaobo It is not the only nation in

the world to adopt such strict policies in order to further its own ideology and the committee will

do well to ruminate upon how this tradition can be discontinued so as to allow people their

essential political freedoms

The Infringement of Rights in the Conflict with Tibet

Despite the furor that has been inconsistently directed towards its human rights record China

continues to impose tightening restrictions on rights of expression association and assembly

The Chinese government carries on devising social and economic changes that retain its firm

authority over its citizens which in turn enables a host of human rights violations In the context

of Tibet China has failed to address the grievances of the people there who have been made

victims of social discrimination and have unequal access to opportunities Scores of Tibetans are

marginalized and detained for their religious inclinations which are further suppressed by the

imposition of intense patriotic educationlsquo campaigns whereby socialism is furthered and all sorts

of religious or individualistic tendencies are thwarted

54

Ibid Page 5 55

httpwwwhrworgreports20091112alleyway-hell-0 Page 4

UNHRC 16 of 44

Despite its totalitarian approach China refuses to accept responsibility for the issue Instead it

blames westernlsquo forces for trying to instigate separatism56

The indifference on the part of

China with particular regard to Tibet is apparent with Chinese authoritieslsquo continuous rejection

of ―inconvenient requests by UN human rights experts for visits to the Tibet Autonomous

Region57

During 1912 and 1951 Tibet underwent a period of de facto independence58

While it was still

territorially a part of China it enjoyed relative freedom in its political discourse Tibetan

autonomy was confined within the context of Chinese suzerainty and should not be interpreted

as unrestrained political independence Since 1951 however the Chinese government has taken

steps to ensure its absolute and undeniable dominance over Tibet from which emanates the strife

under discussion Gross violations of human rights have taken place in China administered by

officials with the purpose of cultivating consent with regard to its control over the region

Suppression has led to the inevitable extensive discontent in Tibet a fury which was unleashed

in 2008 The Tibetan unrest of 2008 was a series of protests and demonstrations - not merely in

the Tibet Autonomous Region but elsewhere as well - that later transformed into rioting burning

looting and even killing59

The rioters set fire to state vehicles and clashed violently with the

police installed in the region The crackdown of Chinese authorities in response to the riots was

severe resulting in deaths on both sides and mass imprisonment by state authorities The degree

to which human rights were violated and abused during this crackdown cannot be overstated

The Chinese also revoked the freedom of sharing of information and imposed a ban on the entry

of media officials in the region to contain

information about the unrest and play down

protests60

A Tibetan Government in Exile has existed in India

since 1959 established by the 14th

Dalai Lama61

This Central Tibetan Administration considers the

issue as an illegitimate military occupation by the

Chinese state The Administration works with the

agendas of restoration of freedom in Tibet and rehabilitation of Tibetan refugees

Historical facts refute such a fallacy however The simple reality that the installation of the 14th Dalai Lama

needed the approval of the national government is sufficient proof that Tibet did not possess any independent power

during that period ndash (httpwwwchinaorgcne-whitetibet9-2htm)

56

httpwwwunhcrorgrefworldcountryAMNESTYCHN49b8dfc11a0html 57

Ibid 58

Grunfeld A Tom Reassessing Tibet Policy 2000 59

httpwwwnytimescom20080316worldasia16iht-tibet111134870html 60

Watts Jonathan Branigan Tania (March 18 2008) Tension rises as armed police mass in capital The

Guardian (London) Retrieved November 1 2011 61

httpwwwtibetnetenindexphpid=14

UNHRC 17 of 44

The censured freedom of expression is one of the multiple infringements on rights that are

imposed by China on Tibet Tibetans are denied the basic right to articulate their views through

political discourse Human rights activists advocate the freedom of speech for Tibetans under the

existing and future political arrangements Religious and political figures in Tibet are placed

under house arrest limiting their freedom of movement (in contradiction to article 13 of the

Universal Declaration of Human Rights)62

As was highlighted during the unrest in 2008 China

has often stripped the Tibetan population of its fundamental rights to associate and assemble In

2000 nine Tibetan prisoners in Kandze were charged for participating in a peaceful protest to

five-year prison terms in October 1999 (which were later increased to ten-year terms)63

This example leads us to another crop of abuse conducted overtly by Chinese authorities

arbitrary detention Article 9 of the Universal Declaration of Human Rights reads ―No one shall

be subjected to arbitrary arrest detention or exile64

Chinese law however permits authorities

to detain persons without formally arresting or charging them and persons may be sentenced

administratively to up to 3 years in reeducation-through-labor camps and other similar facilities

without a trial

Chinese authorities have been unresponsive to concerns expressed by the United Nations

Working Group on Arbitrary Detention No counter-explanation was given either over the case

of three Tibetans who had their sentences extended for staging a peaceful political protest during

the Working Groups visit to Drapchi in October 1997 despite international pressure65

Infinite

examples of arbitrary arrests and detentions exist in China international authorities have called

on China to cease this practice and release such detainees immediately absent evidence that they

have engaged in criminal acts No state can or should be able to hold anyone for engaging in

peaceful political activity All humans

should be granted internationally recognized

due-process protections which includes the

right to be informed of the charges leveled

against them66

The question of whether

these detainees are given an impartial trial if

one at all is not even raised

In addition to the arrests carried out in

violation of international law there are

grave evidences of abuses during detention

62

httpwwwhrworgnews20000612human-rights-violations-tibet 63

Ibid 64

httpwwwunorgendocumentsudhr 65

httpwwwhrworgnews20000612human-rights-violations-tibet 66

httpwwwhrworgnews20000612human-rights-violations-tibet

UNHRC 18 of 44

Incidences of beatings at time of arrest and torture (including the administration of electric

shocks and deprivation of food and medical treatment)67

during custody are widely reported

These are not isolated cases rather the product of a holistic policy of dealing with political

dissidents In one notable incident in May 1998 political prisoners in Drapchi staged major

protests to coincide with a visit from a European Union delegation The protests were non-

violent but the authorities reaction was severe several protestors were shot at and one monk

Lobsang Gelek subsequently died68

The Convention Against Torture (CAT ratified by China in 1988) requires the state to prevent

torture and punish those in violation of the law China has not amended its own laws to comply

with even the first article of CAT69

Such practices explicitly stand in contempt of Article 5 of

the Universal Declaration of Rights which censures the use of torture or cruel treatment as

punishment Dr Manfred Nowak the UN Special Rapporteur on Torture stated that ―he was

struck by the strictness of prison discipline and a palpable level of fear and self-censorship when

talking to detainees following his brief assessment of Chinese and Tibetan prisons in 200570

The committee will be looked upon to review ways in which the situation can be monitored more

carefully and what responses if any can be cultivated to impede similar future actions by

China

The continued violations of religious freedom and implementation of policies designed to

diminish religious practices by the State to serve its political needs is a cause of concern Again

referring to the Universal Declaration of Human Rights Article 18 reads ―Everyone has the right

to freedom ofhellipreligion this right includes freedomhellipto manifest his religion or belief in

teaching practice worship and observance71

The policies implemented by Chinese authorities

through use of coercion violent repression and imprisonment impinge upon the freedom of

Tibetans to practice their religion freely China has also strictly enforced re-education programs

for dissident factors within the state The program is aimed at ―combating separatism protecting

stability and promoting development and is intended to reform the political ideology of people

who refuse to accept state control of what they perceive as vital aspects of their religious lives

and beliefs The committee will be expected to deliberate upon the protection of religious

freedom and practices of individuals as well as the validity of these re-education programs in

light of human rights and liberties

Tibet is not the only region where political tensions surrounding autonomy run high The

Kosovo-Serbian conflict is pertinent to recall The Republic of Kosovo declared itself to be an

independent entity on February 17 2008 As of 11 October 2011 85 UN states recognize the

independence of Kosovo However Serbia maintains that Kosovo is a UN governed entity under

67

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 68

httpwwwfreetibetorgabouttorture 69

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 70

Ibid 71

httpwwwunorgendocumentsudhr

UNHRC 19 of 44

its sovereignty Russia and China are among those who do not recognize the Republic while the

USA UK and France have recognized Kosovolsquos declaration of independence This highlights the

rift between the United Nations Security Council over the issue The case of Tibet is all the more

important in light of the fact that many such pockets exist in the world struggling for self-

determination

Media Links

httpwwwfreetibetorgnewsmedia2008-protests-summary

httpwwwguardiancoukworldgallery2008mar19tibetchinapicture=333178281ampindex=7

Chinarsquos Violation of Ethnic Minority Rights

One of the greatest blemishes on Chinalsquos human rights record is in the area of ethnic minorities

and the extent to which China protects ethnic minority rights On paper Chinalsquos policies are

based on ethnic equality and regional ethnic autonomy Ethnic minorities are supposed to be

benefitting from preferential policies in the political economic cultural and educational spheres

However the ground realities are infinitely different Questions have been raised over the extent

to which the government fairly provides services to these minorities and allocates resources

equally to them The Chinese government is seen to largely prefer its Han majority The

minorities claim they are exploited for their resources and in turn not even provided with the

same level of social services as the Han people China is an atheistic government and the fact

that many ethnicities garner their identity in major part from their religious affiliation leads to a

precarious situation The Mongols Tibetans and Uighurs all come to mind when discussing the

issue of China and ethnic minority rights

―Everyone is entitled to all the rights and freedoms set forth in this Declaration without

distinction of any kind such as race colour sex language religion political or other opinion

national or social origin property birth or other status Furthermore no distinction shall be

made on the basis of the political jurisdictional or international status of the country or

territory to which a person belongs whether it be independent trust non-self-governing or

under any other limitation of sovereignty

- Article 2 Universal Declaration of Human Rights

The International Convention on the Elimination of Racial Discrimination defines racial

discrimination as any distinction exclusion restriction or preference based on race colour

descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the

recognition enjoyment or exercise on an equal footing of human rights and fundamental

UNHRC 20 of 44

freedoms in the political economic social cultural or any other field of public life72

It is due to

this that the international community has adopted the norm of subsuming ethnicity under the

terminology of race

―The Peoples Republic of China is a united multi-ethnic country So far 56 ethnic groups have

been identified and recognized by the central government The population of various ethnic

groups differs greatly While the Han ethnic group has the largest population and that of the

other 55 ethnic groups is relatively small so they are customarily referred to as ethnic

minoritieslsquo According to the fifth national census conducted in 2000 the population of all the

55 ethnic minority groups totaled 10449 million accounting for 841 percent of the total

population of China73

Chinas official 55 minorities are located primarily in the south west

and north of China Only Tibet and Xinjiang have a majority population of official minorities

while all other provinces municipalities and regions of China have a Han majority

One of Chinalsquos autonomous regions is the Xinjiang Uighur Autonomous Region (XUAR)

located in western China The area is vast accounting for one sixth of Chinalsquos land and houses

around 13 major ethnicities including the Uighurs who are a predominantly Muslim people with

origins in Central Asia The Uighurs have had strained ties with the state and have often resisted

Chinese authority74

In turn the Chinese government has reacted sometimes violently against

restless factions in the region One of the most passive aggressive forms of response on the part

of the Peoplelsquos Republic has been the encouragement of the migration of the Han people ndash

Chinalsquos ethnic majority ndash to the XUAR75

Around 90 of Xinjiangs population comprised of

Uighurs in 1949 now it is estimated that Uighurs make up only about 45 of the population76

The policies in Xinjiang are said to be designed to ―promote economic development not

demographic change In reality though the influx of migrants has amplified Uighur discontent

as Han and Uighurs compete over limited jobs and natural resources77

The United Stateslsquo

Congressional-Executive Commission on China reported that in 2006 the XPCC (Xinjiang

Production and Construction Core) reserved approximately 800 of 840 civil servant job openings

for Han Chinese78

One of the causes of the Han monopoly in the employment sector is the

linguistic advantage afforded to them and perpetuated by the education system As part of its

efforts to implicitly impose a unified culture the language policy was altered by the state with

an increased focus on use of Mandarin in schools at the expense of the local languages

Methods of education special to the ethnic peoples of the XUAR including the Muslim Uighurs

are suppressed For example a campaign by the PRC in 2001 targeted religious teachers and

72

httpwww2ohchrorgenglishlawcerdhtm 73

httpenglishgovcnofficial2005-0728content_18127htm 74

httpwwwcfrorgchinaeast-turkestan-islamic-movement-etimp9179 75

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p8 76

httpnewsbbccouk2hiasia-pacific3330803stm 77

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p4 78

httpwwwcolumbiaeducunewsclips20080801UighursTWPOSTpdf

UNHRC 21 of 44

endeavored to sever ties between mosques and groups involved in allegedly ―separatist

activities Around 8000 imams were required to undergo ―political reeducation in this regard

and become ―patriotic religious personalities Ethnic minorities are educated in ways that do not

allow them to learn their own languages or practice their own religion In 2001 for example a

Muslim girl was expelled from school for praying 79

Moreover in an attempt to further its socialist agenda and bind ethnic minorities together

minority cultural activities are often hindered In its place nationalistic values are given a

premium and integrated into society so as to tie the entire country in a unified Chinese foldlsquo

Resultantly an asymmetry with regards to the provision of services and protection of cultural

identity can be found in almost every ethnic minority region in the country The repression

against minorities has wider implications on the human rights situation for all This leads to

creation of a vindictive attitude among the minorities not only against the government but also

the Han majority

In July 2009 this attitude manifested itself in

the form of severe riots between the Han and

Uighur communities in Xinjianglsquos capital city

Urumqi Ethnic tensions elevated to the point

that police involvement was made necessary

According to Chinese state media at least 150

people were killed and more than 800 were

injured The riots were reportedly sparked by a

Uighur protest over the ethnically motivated

killing of two Uighur workers in the southern

province of Guangdong

On the topic of allegations of separatism it is interesting to note that post 911 it has been noted

that the Chinese government has used concerns about terrorism as a method for suppressing

ethnic activity This is possible through the characterization of certain ethnicities as having

fundamental leanings The Muslim Uighurs fell under fire for this very reason after the

September 2001 attacks

One of the ways that the Chinese government with its Han leanings has asserted its presence in

the region is through the smokescreen of the XPCC The Peoplelsquos Liberation Army and the

XPCC are present in the region per the government to ―consolidate border defense accelerate

79

wwwminorityrightsorgdownloadphpid=29 Page 30

UNHRC 22 of 44

Xinjianglsquos development and reduce the economic burden on local governments and the local

people of all ethnic groups80

The heavy militarization of ethnic minority

regions also enables the Chinese government

to quickly respond to skirmishes between the

minorities and the Han For example clashes

between the Uighurs and the Han in the

XUAR are quickly clamped down upon The

response by Chinese authorities always

focuses on the minority groups in the region

The typical response includes a period of

strike hardlsquo security measures during which the minorities are subjected to police patrols of

crowded areas identity checks street searches increased criminal investigations and accelerated

trials The measures also include mandatory political indoctrination classes for the Uighur

population Swift Chinese response to ethnic dissidence precludes the possibility of trying

protestersrioters under due process This phenomenon also contributes to the controversy of

China and its policy of arbitrary imprisonment

Essential to any countrylsquos social progress is the protection and provision of the basic rights to all

its citizens For a country like China which has a significant standing in the international

community the degree to which human rights are upheld comes under added scrutiny Minorities

need to be guaranteed provision of not only fundamental rights but additional ones that grant

them equal opportunities

Recent Developments

3 November 2010 UN Secretary General pushes China on human rights

Ban Ki-moon the United Nations secretary general has called on China to respect human rights

after critics accused him of dodging the issue on a trip to Beijing The UN secretary general met

Hu Jintao the Chinese president but failed to challenge Mr Hu on the imprisonment of Liu

Xiaobo the democracy activist who was awarded this years Nobel Peace prize and raise the

issue of human rights81

80

httpwwwchinaorgcne-white200305269htm 81

httpwwwtelegraphcouknewsworldnewsasiachina8107148UN-Secretary-General-pushes-China-on-human-

rightshtml

UNHRC 23 of 44

5 November 2011 Yeqing Ji from Shanghai China will most likely not be able to have children

after she said two forced abortions physically impaired her uterus82

8 September 2011 The Chinese government has renewed Googlelsquos license to allow it to

continue operating its local website in the country83

13 November 2011 Seven months ago

Chinese police detained the countrylsquos most prominent artist Ai Weiwei at the airport and drove

him to a hidden location It was the beginning of what is to be a two-and-a-half month nightmare

for the architect and sculptor who is also a former darling of the Communist Party who later

turned into an outspoken government critic Ai was held on vague charges of economic crimes

was kept in isolation and subjected to Kafka-esque interrogations84

April 19 2011 Amnesty International a 21-year-old monk Phuntsog set himself on fire in an

apparent anti-government protest in March 2011 Instead of putting out the flames Chinese

police beat the young monk creating huge resentment in the monastery85

At least 11 ethnic

Tibetans have been detained for protesting against the event and against government policies

They are at risk of torture and other ill-treatment86

29 May 2011 300 Tibetan monks detained in Kirti monastery by Chinese security forces87

15 September 2011 Chinese Uighurs economic fears

Amid ethnic tensions minority regards modernization plans in Xinjiang as favoring Han Chinese

migrants88

20 November 2011 Another of Chinalsquos minorities the Hui Muslims in Ningxia do not feel

stigmatized

―There is an important reason why Hui and Han Chinese get along with each other Unlike

Muslims of the other ethnic minorities like Uighur Kazakh Kyrgyz and Tajik the Hui Muslims

speak Mandarin just like the Hans89

82

httpabcnewsgocomBusinesswoman-china-forced-abortions-leaves-unable-

childrenstoryid=14880884Tsia7LIk6so 83

httpwwwbbccouknewsbusiness-14832392 84

httpwwwthedailybeastcomnewsweek20111113ai-weiwei-speaks-out-on-his-detentionhtml 85

httphradvorgaggregatorsources10 86

httpwwwamnestyorgenlibraryassetASA170212011end75f7611-be66-4d5a-9391-

c80c43501d56asa170212011enhtml 87

httphumanrightshouseorgArticles16503html 88

httpwwwaljazeeracomvideoasia20110920119158016969449html 89

httpwwwtodayszamancomnews-263322-chinas-hui-muslims-do-not-feel-stigmatizedhtml

UNHRC 24 of 44

Conclusion

The United Nations Human Rights Council at LUMUN 2012 will be looked upon to provide a

framework for the resolution of these issues in a universal context The scope of the issues

should be expanded and applied to countries other than China The committee will have to make

recommendations which have universal application and resolve all aspects of the issue

comprehensively For any queries related to the study guide please do contact either (or both)

the committee directors at the given addresses

UNHRC 25 of 44

Topic Area B Abolishing the Death Penalty

Introduction to the Topic Area

The death penalty is formally defined as the execution of an offender sentenced to death after

conviction by a court of law of a criminal offenselsquo90

The concept of a capital crime is subjective

and states have made use of this practice in response to multiple forms of crime The use of the

death penalty has produced much controversy with regard to its apparent violation of

fundamental human rights as delineated in the Universal Declaration of Human Rights and

subsequent human rights charters and treaties It is asserted that the use of death penalty is in

contravention to the peopleslsquo right to life promised to every individual under Article 3 of the

Declaration91

Moreover Article 2 of the Charter of Fundamental Rights of the European Union

lucidly bars the imposition of death penalty as a form of punishment92

Arguments against the

use of death penalty are also made on the grounds of inhumane methods which are employed to

see out the process Historically multiple methods have been used which include death by

hanging severing of the head lethal injection shooting and electrocution93

94

As a response states have made keen efforts to abolish

the death penalty particularly in the last two decades as

can be interpreted from the graph on the right which

represents the number of states that have abolished the

death penalty Countries belonging to the European

region with the exclusion of Russia and Belarus have

sought to revoke the use of the practice The death

penalty is most commonly seen to be a formal practice

in most of the developing countries The trend is

apparent in Latin America Africa and Asia

96 countries have formally abandoned the use of death penalty 58 countries allow the use95

Other states have abolished the penalty in practice but the laws remain in place for the

imposition of the penalty as a response to certain crimes The imposition of the death penalty has

90

httpwwwbritannicacomEBcheckedtopic93902capital-punishment 91

httpwwwunorgendocumentsudhr 92

httpwwweuroparleuropaeucharterpdftext_enpdf 93

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffle

re-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 94

httpwwwdeathpenaltyinfoorgmethods-execution 95

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf

Figure 1 (Drag to enlarge)

UNHRC 26 of 44

seen a decline over the recent years with a fall in the number of executions that take place

annually It would however be incorrect to assume that the practice is not prevalent or widely in

effect Amnesty International reported that at least 2024 new death sentences were imposed in 67

countries in 2010 Moreover there were at least 17833 people sentenced to death worldwide at

the end of 201096

Again these are minimum figures which are the safest that can be inferred

from the given research There were 527 known executions carried out in 2010 globally97

This

figure however does not include the number of executions that took place in China where

analysts believe that more than a thousand people were put to death in the past year

The statistics represent the number of people executed through capital punishment One way to

formally define capital punishment is to regard it as the state sanctioned killing of an individual

through a judicial process as a punishment for a crime (defined as a capital crime by the state)98

Capital punishment is the most obvious and prevalent manifestation of the death penalty It is

often perceived as a statelsquos right in order to preserve law and order against any individual who

engages in serious crimes that threaten other individuals or the state Those who advocate against

the use of capital punishment label it as a symptom of a culture of violence not a solution to

itlsquo99

The controversy surrounding the topic is based on the legal ethical and moral acceptability

of the statelsquos right to an individuallsquos life The debate entails several social and economic factors

some of which will be reviewed in closer detail in the relevant section of this guide

One of the most striking aspects related to the issue is the imposition of the capital punishment

on juveniles The sentencing of juveniles to death is in clear breach of international law The

morality and validity of such a practice is often called into question and has been put under

relentless scrutiny despite all of which the practice is still carried out in a number of countries

Historically the United States China and Iran have the worst records relating to juvenile death

sentences100

The study guide also includes a separate section for the case of juveniles in which

the legal and social aspects of the problems are detailed

As stated states have made use of the death penalty to punish crimes of varying natures The use

of the death penalty is reserved for only the most seriouslsquo crimes as put forth in international

law101

The notion of a capital crime however is a subjective one states that have doled out

death sentences have defined it differently In certain countries the death penalty is only used to

charge criminals accused of war crimes In other countries the penalty is reserved for crimes like

96

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf 97

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010 98

httpusersrcncommwooddeathpenhtml 99

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 100

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 101

httpwwwunorgdocumentsecosocdocs1995e1995-78htm

UNHRC 27 of 44

murder rape or even robbery States also use the death penalty against individuals who are guilty

of treason The issue however is that many states practicing the death penalty impose the

punishment even when the crimes do not meet the threshold for the aforementioned most

seriouslsquo crimes The ability of states to define what constitutes as a capital crime has led to states

abusing their powers as has been observed in the sentences ordained by military courts

Moreover even the radicals who make the argument of the punishment fitting the crime agree

that in many instances individuals have been executed for softlsquo crimes crimes that were

certainly not tantamount to charges of murder or crimes against humanity The issue of apparent

violations of human rights is further exacerbated in these instances The study guide will discuss

the universal crimes that have resulted in the awarding of the death penalty and examine the

issue further The committee will be expected to discuss the feasibility of drawing up an

international definition of crimes which in isolated instances perhaps may be appropriate for a

sentence like the death penalty

Another pertinent aspect surrounding the debate is that of extrajudicial killings The execution of

a person by state authorities without the authority of a judicial proceeding is termed as an

extrajudicial killing Many states have used extrajudicial killings to establish their authority and

order without having to wade through the legal process By doing so they have deprived scores

of people of their fundamental right to free and fair trials Governments have also employed this

tactic to exercise political aggression and to suppress dissent A particular point of concern is the

fact that some states have made use of these killings even when they have officially revoked the

imposition of the death penalty Extrajudicial killings are carried out persistently in many

countries ndash the list includes countries like Iran Iraq Israel Philippines102

Most recently the

killing of Anwar al-Awlaki and Samir Khan in Yemen by a sanctioned National Security Council

move by the USA was an example of states embarking on such paths to eliminate threats to

national securitylsquo103

102

Multiple citations for each country can be found in the second paragraph article titled Extrajudicial killinglsquo on

Wikipedia 103

httpwwwtelegraphcouknewsworldnewsbarackobama7564581Barack-Obama-orders-killing-of-US-cleric-

Anwar-al-Awlakihtml

UNHRC 28 of 44

Wrongful convictions lead many to believe in the inherent incapacity of the death penalty to

serve justice On September 21 2011 US citizen Troy Davis was executed in Georgia after

which seven of the nine witnesses who testified against him in the case that led to his execution

recounted or retracted their evidences A petition with nearly one million signatures was put

forth to reconsider his case it was rejected On the same day a 17 year old boy was publicly

hanged in Iran for killing a popular athlete his justification based on self-defense was ignored

Also on the same day a Pakistani national was executed in China on grounds of drug trafficking

an offence that does not often result in capital punishment The need for the resolution of this

issue is pressing and the committee needs to deal with all aspects of the problem in a

comprehensive and enduring manner104

Capital Punishment

In 2010 23 countries implemented capital punishment A total of 527 executions (plus the 1000+

carried out in China alone) were known to have taken place with Iran Yemen USA and North

Korea meting out a significant number of sentences105

The figure is lower than the records

computed for years past There are more states which are now abolitionist either in law or in

practice with regard to the imposition of the punishment Gabon was officially the last country

to rescind the practice while bills calling for an end to capital punishment have been presented

to parliaments in Lebanon Mali Mongolia and South Korea106

Renewed efforts are

104

httpwwwamnestyorgennews-and-updatesus-executes-death-row-prisoner-troy-davis-2011-09-21 105

httpwwwguardiancouknewsdatablog2011mar29death-penalty-countries-world 106

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010

UNHRC 29 of 44

simultaneously being made on the international front to implement laws against capital

punishment A third resolution establishing a moratorium on the use of death penalty passed the

UN General Assembly on December 21 2010107

Despite the increasing momentum towards an eventual elimination of the practice the number of

executions taking place annually is a cause of major concern Advocates of the death penalty

assert that the practice is an effective means of deterring crime in society Public executions are

often held in Iran Afghanistan and Palestine for example to demonstrate the fate awaiting

those who commit similar crimes108

Arguments are made on the grounds of justice that it is

proper and fair to take an eye for an eye and a life for a life and that some individuals deserve

it for the crimes they commit

Those opposing the practice question the morality of an action sanctioned by the state which

endorses deprivation of the right to life a fundamental human right under the Universal

Declaration of Human Rights109

There are inescapable flaws within legal systems which are

aggravated by discrimination prosecutorial misconduct and inadequate legal representation

Moreover the risk of executing the innocent can never be eliminated110

An alternative is

presented in the form of imprisonment for life without parole which results in a parallel debate

is imprisonment for life a viable surrogate to the practice of death penalty A thread from this

debate also relates to the economic feasibility of carrying out a death sentence as opposed to the

feasibility of imprisonment for life

Deterrence

Capital punishment is often propagated as an adequate approach in the deterrence and prevention

of crime The logic is that if murderers are sentenced to death potential murderers will think

twice before killing for fear of losing their own life The deterrence theory presumes that the

once the punishment for a certain crime is established the criminal by committing the crime

voluntarily assumes the risk of receiving the prescribed punishment for the crime Only when the

most severe punishment has been set will there be a possibility of an individual evaluating their

actions in light of the consequences111

107

httpwwwundemocracycomA-RES-62-149pdf 108

httpwwwamnestyorgennews-and-updatessharp-rise-public-executions-iran-executes-first-juvenile-

offenders-2011-2011-04-27 109

wwwunorgendocumentsudhr 110

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 111

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 30 of 44

The death penalty it is asserted ensures that convicted criminals do not offend again moreover

it is deemed to be a just penalty for atrocious crimes It is further alleged that many criminals

who are set free even after lengthy sentences regress and go on to commit heinous crimes

Therefore there should never be the possibility of a release clause112

The deterrence theory is modeled on the grounds of human psychology logic and rationale As a

professor of jurisprudence Ernest van den Haag PhD wrote ―Common sense lately bolstered

by statistics tells us that the death penalty will deter murder if anything can People fear nothing

more than death Therefore nothing will deter a criminal more than the fear of death These

statements were further validated by a US Supreme Court Justice who said on record that

Prima facie the penalty of death is likely to have a stronger effect as a deterrent to normal

human beings than any other form of punishmentlsquo113

Numerous studies have been conducted on

the subject with varying results One of the most established studies was conducted in USA

using a panel data set of over 3000 counties from 1977 to 1996 which concluded that on

average one death sentence resulted in 18 fewer murders114

Delegates will be expected to be

familiar with other similar studies

These studies are commonly refuted as not crediblelsquo by opponents of the capital punishment

who also deny the correlation between crime and death penalty as a fabricated relationship which

cannot be empirically established115116

A study of the relationship between capital punishment

and the incidence of murder was conducted for the UN in 1988 and updated in 2002 The

conclusion was ―The investigation has not provided scientific proof that executions have more

deterrent effect than life imprisonment It is unlikely that such evidence will ever come

Deterrence hypothesis finds no support in the survey117

Another counter-argument asserts that crime is still a persistent feature of the societies that

continue to award the death penalty while many of the abolitionist states enjoy low crime rates

This can be evidenced by comparing the crime rate in USA or Pakistan with that of Canada or

some European state In Canada for example the homicide rate per 100000 fell from a peak of

309 in 1975 the year before the abolition of the death penalty for murder to 241 in 1980 and

in 2003 27 years after abolition the homicide rate was 173 per 100000 44 per cent lower than

in 1975118

112

httpwwwdeathpenaltyinfoorgfacts-about-deterrence-and-death-penalty 113

httpdeathpenaltyproconorgviewresourcephpresourceID=002000 114

httpdeathpenaltyproconorgsourcefilesThe20Deterrent20Effect20of20Capital20Punishmentpdf ndash

Delegates should carefully examine certain parts of this document to establish the credibility of the assertions made

They should also invest in trying to locate studies that refute the assertions made in this and similar studies 115

httpwwwdeathpenaltyinfoorglaw-enforcement-views-deterrencelawenforcement 116

httpwwwdeathpenaltyinfoorgDonohueDeterpdf 117

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 118

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml

UNHRC 31 of 44

The lack of evidence on the production of a unique deterrent effect points to the danger of

relying on the deterrence hypothesis as a basis for public policy on the death penalty

Retribution amp Morality

An important terminology that delegates need to familiarize themselves with is that of

―retributivism119

It is defined as ―a policy of criminal justice that sponsors the punishment of

criminals in retribution for the harm they have inflicted120

Criminals deserve to be punished in

proportion to the gravity of their crime regardless of whether the victim or anyone else desires

it we may all deeply regret having to carry out the punishment but consider it warrantedlsquo is

what many say in defense of the theory121

The need for the establishment of a visibly just state arises from the potential risks of not having

one As has been visible in many developing countries with shaky legal systems when criminals

are not adequately punished for their unlawful behavior the public takes the law into its own

hands and deals out vigilante justice It is asserted that retributivism is essential for a functioning

society where individuals respect the supremacy of law

The concept of retribution in society is also grounded in religious beliefs The concept of an eye

for an eye has been a part of all three Abrahamic traditions However in the modern world it is

Islamic nations that still retain the practice based on these grounds Similar traditions can be

found in Hinduism Christianity and Buddhism as well as other religions in different parts of the

world In many non-secular countries the constitutions and state laws are derived from religious

doctrines

Opponents dismiss this aspect of the argument as being emotionally charged with little rational

logic to support the contention They claim that the establishment of capital punishment gives

birth to a culture of violence endorsed by the state It perpetuates the cycle of aggression and

brutality something which the state should be actively inhibiting not endorsing

Wrongful Convictions

The death penalty carries with it the danger of wrongfully convicting an innocent person for

crimes he did not commit There is the potential for capital punishment to evolve into sheer

miscarriage of justice as in certain circumstances states are often seen to rush the trials and

convict the accused hastily This practice takes foremost apparently in military courts often in

119

Cavadino M amp Dignan J (1997) The Penal System An Introduction (2nd ed) p 39 London Sage 120

httpdictionaryreferencecombrowseretributivism 121

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 32 of 44

the developing or lesser-developed countries where the system of law is not properly established

It is not however exclusive to these countries Examples can be drawn from countries like

Philippines Thailand Iran and Palestine to name just a few where executions are carried out at

alarming pace removing the possibility of reviews

On 15 August 2004 Atefah Rajabi Sahaaleh was hanged in a public square in the Iranian city of

Neka Her death sentence was imposed for adultery and crimes against chastity122123

Atefah

was executed a week after the trial was run Following the execution the Judge for the case was

arrested for investigation by the Intelligence Ministry The media reported that in addition to the

confession of his rape of Atefeh Judge Rezai who served as judge jury and executioner also

confessed to torturing her during interrogations to extract names of others she had relations with

No transcripts from court proceedings were recorded The State alleged that Atefah was 22 at the

time of her execution A witness later claimed The judge just looked at her body because of

the developed physique and declared her as 22124

ndash her birth certificate revealed she was born

in 1988 Furthermore Atefah did not have access to a proper defense where she could contest

charges leveled against her This is one example of many such cases of miscarriage of justice

Something that recurs in these cases is the failure of the police or prosecuting authorities to

prevent the use of unreliable witnesses the misuse of evidence or confessions and the provision

of inadequate defense representation The advent of DNA profiling and the use of it as positive

evidence in criminal cases has resulted in the exoneration of multiple death row inmates on

grounds of forensic evidence or lack thereof Since 1973 138 people have been released from

death row in the United States after it was proven that they were innocent125

In 2009 Paul

House was cleared of murder and exonerated in Tennessee USA after having served 22 years

on death row His innocence was proclaimed in light of substantial additional DNA testing and

further investigationlsquo 126

Amnesty International has noted examples of wrongful convictions from elsewhere as well

including Jamaica Japan China Nigeria and Tanzania127

Paul G Cassell a former law clerk to

the Chief Justice of USA stated the mistaken release of guilty murderers should be of far greater

concern than the speculative and heretofore nonexistent risk of the mistaken execution of an

innocent personlsquo highlighting the case made by those who advocate the death penalty even in

light of wrongful convictions128

122

httpwwwcosmolearningcomdocumentariesexecution-of-a-teenage-girl1 123

httpnewsbbccouk2hi5217424stm 124

httpnewsbbccouk2hi5217424stm 125

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 126

httparticlescnncom2009-05-13justicetennesseeexonerated_1_death-row-inmate-dna-evidence-house-

arrest_s=PMCRIME 127

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 128

httpdeathpenaltycurriculumorgstudentcaboutargumentstestimony3bhtm

UNHRC 33 of 44

Alternative to Death Penalty

All abolitionist states have reverted to the practice of sentencing criminals to life imprisonment

(some without parole) which is also termed as death by incarceration Widely regarded as a more

humane course of action life imprisonment is also alleged to be a more economical practice

While ensuring public safety by keeping criminals away from society this system also saves the

lives of innocent people who have been falsely or wrongfully convicted The setup inhibits and

curbs the cycle of violence while retaining the deterrence factor it is strongly asserted

Advocates for the death penalty are averse towards life imprisonment for a number of reasons

They cite the unreliability of the system as one of the flaws which impedes the possibility of

such a sentence being successful A certain James Moore serves as a valid example in this case

In 1962 James Moore raped and strangled 14-year-old Pamela Moss The victimlsquos parents opted

out of capital punishment for Moore and he was instead sentenced to life in prison without

parole Twenty years later a change in sentencing laws in 1982 renders James Moore eligible for

parole every two years129130

Kenneth McDuff is another example McDuff was convicted and sentenced to life imprisonment

Years later due to the issue of overcrowding in prisons McDuff was released following which

he killed eight more people McDufflsquos example is of an individual from a developed country

with an established legal system in place131

Overcrowding is a feature of prisons in developing

or lesser developed countries In many such states criminals have also been known to easily

break out from penitentiaries

The economic aspect of the debate is murky at best There is a lack of empirical data on the

subject which is why the arguments of both these sides cannot be settled beyond doubt

Advocates of capital punishment insist that the overall costs of the practice are far lesser than the

costs of housing an inmate for a lifetime132

They also suggest that the life imprisonment allows

criminals to conceive new habeas corpus petitions which on legal grounds cannot be rejected

automatically resulting in more trials

On the other hand substantial arguments are made which stress that the cost of legal proceedings

in capital cases is in truth more than that of other cases States and nations spend a significant

portion of the taxpayerlsquos money in meting out such punishments133

Delegates when addressing

this portion of the debate will need to be aware of the financial aspects of the issue as it forms

for many states an important part of whether capital punishment should be revoked or

not

129

httpwesleylowecomcphtmldeter 130

httpwwwnytimescomkeywordparole 131

httpwesleylowecomcphtmldeter 132

Ibid ndash view section titled Capital Punishment and its costslsquo 133

httpwwwamnestyusaorgour-workissuesdeath-penaltyus-death-penalty-factsdeath-penalty-cost

UNHRC 34 of 44

Imposition of Death Penalty on Juveniles

The prohibition on the death penalty for crimes committed by juvenile offendersmdashpersons under

age 18 at the time of the offensemdashis well established in international law specifically in the

Convention on the Rights of Child

ldquoNo child shall be subjected to torture or other cruel inhuman or degrading treatment or

punishment Neither capital punishment nor life imprisonment without possibility of release shall

be imposed for offences committed by persons below eighteen years of agerdquo134

- Article 37(a) Convention on the Rights of Child

ldquoSentence of death shall not be imposed for crimes committed by persons below eighteen years

of age and shall not be carried out on pregnant womenrdquo135

- Article 6(5) International Covenant on Civil and Political Rights

The treaties are a unanimously agreed set of non-negotiable standards and obligations By

acceding to the treaties and ratifying them governments commit to protecting and ensuring

childrens rights and to holding themselves accountable for this commitment before the

international community

Even though the practice of capital punishment on juveniles is relatively rare however in clear

contravention of international law nine countries have executed offenders who were juveniles at

the time of their crimes between 1990 and 2005136

These countries include the Peoples Republic

of China (PRC) the Democratic Republic of the Congo Iran Nigeria Pakistan Saudi Arabia

Sudan the United States and Yemen137

The USA has since moved to implement a ban on capital

punishment for juveniles However in most other countries of the preceding list the practice is

still enshrined in the judicial system Iranlsquos record in particular has been abominable over the last

decade It has carried out 39 executions of persons under the age of 18 since 2005 Presently

over a hundred individuals are placed on death row for crimes committed as juveniles The

executions of Mahmoud Asgari Ayaz Marhoni and Makwan Moloudzadeh became international

symbols of Irans child capital punishment and the judicial system that hands down such

134

httpwww2ohchrorgenglishlawcrchtm 135

httpwww2ohchrorgenglishlawccprhtm 136

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf - This document by the Human Rights Watch

called The Last Holdoutslsquo is a good summary of juvenile executions and should be reviewed 137

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 - Contains a list with

statistics and details of countries which have allowed the imposition of death sentence to juveniles

UNHRC 35 of 44

sentences138139140

Saudi Arabia and China too have questionable records that need to be

scrutinized further

While regional treaties and charters usually substantiate international law the Arab Human

Rights Charter of 2004 is unique among regional and international treaties in that the ban on the

juvenile death penalty in it is not absolute but merely optional141

Furthermore national laws in states that observe such a practice are in violation of

international legally-binding charters In Iran and Saudi Arabia laws usually treat a child the

same way as an adult criminal offender would be treated Article 10(3) of the International

Covenant on Civil and Political Rights emphasizes the need for demarcation between the

handling of children and that of adults in stating ―Juvenile offenders shall be segregated from

adults and be accorded treatment appropriate to their age and legal status142

The definition of a child in these Muslim states is unclear as adulthood is associated with

attainment of puberty which is a relative concept The Committee on the Rights of the Child in

January 2005 censured the Saudi government for its practice of imposing the death penalty on

juveniles terming it a serious violation of the fundamental rights The committee was deeply

alarmed over the discretionary power judges hold to treat juveniles as adults as was stated in

the committeelsquos report Iran too was strongly condemned following the release of an

international report highlighting the dire situation in Iran by the International for Human Rights 143

138

httpwwwfoxnewscomstory0293329798200html 139

httpnewsbbccouk2himiddle_east7130380stm 140

httpenwikipediaorgwikiCapital_punishmentIran 141

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 142

httpwww2ohchrorgenglishlawccprhtm 143

httpwwwfidhorgIMGpdfRapport_Iran_finalpdf

UNHRC 36 of 44

On August 19 2008 Iranian authorities executed Seyyed Reza Hejazi at Isfahan Central Prison

for his role in a murder committed in 2003 when he was 15 Hejazi was tried as an adult by

Branch 106 of the Isfahan General Court even if he did not qualify as one under international

stipulations and sentenced to death on November 14 2005144

In Saudi Arabia Mu`id bin

Husayn bin Abu al-Qasim bin `Ali Hakami was executed on July 10 2007 for a murder he

allegedly committed three years earlier when he was 13 years old145

The judges in these states

because of the implementation of the Sharialsquo law have a large amount of discretion with regard

to their rulings This discretion is often abused in the interrogation and judicial proceedings In

Pakistan authorities hanged Mutaber Khan in Peshawar Central Prison on June 13 2006 on

charges of murder of five people The fact that he was held in the juvenile wing of Peshawar

Central prison and the evidence presented by the accused confirming that his age was below 18

at the time of the killings were not taken into account during the trials and Mutaber was charged

as an adult in the case146

While the above does not cover exhaustively the practice of capitally punishing juveniles the

committee is expected to be well read on the matter The committee will be required to devise

ways to strictly apply the existing international law on the subject to curtail further deaths of

juveniles by states A series of recommendations on better implementation of international

covenants will be expected from the committee Delegates at UNHRC will also have to

familiarize themselves with the stipulations in the national laws of countries practicing juvenile

death penalties (Iran Saudi Arabia Pakistan Nigeria Sudan Yemen and UAE among others) to

discuss how these states are constitutionally able to bend international law and mete out the

illegal punishments

144

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 145

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 146

See FIDH and Human Rights Commission of Pakistan ―Slow march to the gallows and ―Condemned Prisoner

Executed Dawn Newspaper Karachi June 14 2005 httpwwwdawncom20060614nat16htm

UNHRC 37 of 44

Universality of Laws Incurring the Death Penalty

In countries which have not abolished the death penalty capital punishment may be imposed

only for the most serious crimes it being understood that their scope should not go beyond

intentional crimes with lethal or other extremely grave consequences

- Safeguards guaranteeing protection of the rights of those facing the death penalty147

Laws incurring the death penalty or capital crimes have certain uniformity the world over This

is of course barring states that are religiously affiliated and whose law systems are not secular

in nature The list of capital crimes for those states with non-secular legal systems is slightly

different The Human Rights Commission had decided that the imposition in the State party of

the death penalty for offences which cannot be characterized as the most serious including

apostasy committing a third homosexual act illicit sex embezzlement by officials and theft by

force are incompatible with Article 6 of the Covenant Economic offences including

embezzlement drug related offences political offences and robbery were also referred to148

The reason why looking into capital crimes and trying to garner a global impression of them is

important is that the death penalty can only realistically be abolished in a piecemeal way This

process will entail shortening the list of capital crimes The UN formally notes that ―in order

fully to guarantee the right to life provided for in article 3 of the Universal Declaration of

Human Rights the main objective to be pursued is that of progressively restricting the number of

offences for which capital punishment may be imposed with a view to the desirability of

abolishing this punishment in all countries149

The first established death penalty laws date as far back as the Eighteenth Century BC in the

Code of King Hammaurabi of Babylon which codified the death penalty for 25 different crimes

By the 1700s 222 crimes were punishable by death in Britain including stealing cutting down a

tree and robbing a rabbit warren In the 19th

century the death penalty was eliminated for over

100 of the 222 crimes punishable by death 150

In modern times the UN Special Rapporteur on

extrajudicial summary or arbitrary executions has stated that the death penalty should be

eliminated for economic crimes and drug-related offences and that the restrictions to its use

―exclude the possibility of death sentences for so-called victimless offences ndash including acts of

treason espionage and other vaguely defined acts usually described as crimes against the Statelsquo

or disloyaltylsquo and ―actions primarily related to prevailing moral values such as adultery and

prostitution as well as matters of sexual orientation151

147

httpwww2ohchrorgenglishlawpdfprotectionpdf 148

httpwwwunhchrchtbsdocnsf0bc310a747155dff88025655300537faeOpendocument 149

General Assembly resolution 2857 httpwwwunodcorgpdfcompendiumcompendium_2006_part_01_05pdf 150

httpdeathpenaltycurriculumorgstudentcabouthistoryhistoryPDF 151

httpswwwabofimedia24259report10pdf

UNHRC 38 of 44

Contrary to the made recommendations even political dissent warrants a death sentence in

several countries most notably in China and Iran In 2010 nearly 20 Kurdish people were

executed for political offences in Iran The country is known for keeping dissent especially from

the Kurds suppressed Most are executed on the grounds of moharebeh or enmity against God

Moreover challenging the power of the Ayatollah is also punishable by death These charges are

neither explicit nor in line with international guidelines over what crimes are punishable

capitally In Iran judges must handle such cases carefully as Iranian law provides for only one

punishment if an individual is found to be guilty of treason Libya too thwarts political dissent

with firm laws in place for punishing by death those who illegally form groups organizations or

associations against the state152

Saudi Arabia too is worth note for its vaguely phrased laws governing capital punishment

Intentional murder and crimes that spread ―mischief in the land (Fasad fil-ardh) merit death In

2010 the government announced that it had executed 26 people all by beheading Crimes that

―spread mischief include witchcraft and sorcery153

How is one convicted of witchcraft in the

21st century What can the international community do when regarding countries such as these

Treason arguably along with murder is the capital crime that has yet to be phased out by many

countries In some such as Brazil treason during warfare is the only crime for which a person

can be sentenced to death In the Gaza Strip under Hamas any sort of cooperation with Israeli

forces during military actions is also punishable by death In others including Algeria Bahrain

Iran and Malaysia treason is punishable by death in all circumstances The United States too has

federal laws governing treason under which traitors ―shall suffer death154

Child sex abuse is another crime that is widely held to merit the death penalty In Russia for

example according to the Russian Public Opinion Research Center an overwhelming majority

consider the death penalty to be an acceptable punishment especially in relation to molestation

155 In 2009 however Russias Constitutional Court effectively abolished the death penalty by

extending indefinitely a 13-year-old moratorium on capital punishment156

Indonesia has some of the strictest penalties for drug related crimes in the world Roughly half of

those on death row are incriminated with drug-related charges157

In 2008 though the most high

profile executions were of terrorists Three of those found responsible for the 2002 Bali

bombings were executed by shooting158

Generally speaking however a significant proportion of

152

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 153

httpwwwstategovgdrlrlshrrpt2010nea154472htm 154

httpdeathpenaltyproconorgviewresourcephpresourceID=1172 155

httpenrianrutrenddeath_penalty 156

httpwwwreuterscomarticle20091119idUSLJ330478 157

httpwwwnytimescom20080711worldasia11iht-indo114421132html 158

httpnewsbbccouk2hiasia-pacific7718246stm

UNHRC 39 of 44

the executions or death sentences recorded (in 2010) in China Egypt Indonesia Iran Laos

Libya Thailand United Arab Emirates and Yemen were for drug-related offences In December

2010 the amended Anti-Narcotics law came into force in Iran extending the scope of the death

penalty to include additional categories of illegal drugs (for example crystal meth) possession

of which became punishable by death Also around the same time the National Assembly of

Gambia voted to extend the scope of the death penalty by making the possession of more than

250g of heroin or cocaine an offence punishable by death159

Several states allow for the death penalty for crimes of blasphemy and other crimes for

nonviolent expression and association In Pakistan Aasia Bibi a Christian mother of five was

charged with blasphemy and sentenced to death after a trial largely believed to be unfair on 8

November 2010 She is currently on death row The country is also noted for its laws concerning

capital crimes The list includes 27 crimes most of which go beyond the notion of ―most serious

crimes as recommended by the International Covenant on Civil and Political Rights Extra-

marital sex and blasphemy are examples of some capital crimes in the country In December

2007 Pakistan voted against a United Nation General Assembly resolution for a moratorium on

the death penalty The year before however the nation amended its law on rape and adultery

charges which are no longer punishable by death160

As far back as 1989 recommendations have been made as to how to abolish the death penalty

Member states (of the UN) have been urged ―to publish for each category of offence for which

the death penalty is authorized and if possible on an annual basis information about the use of

the death penalty including the number of persons sentenced to death the number of executions

actually carried out the number of persons under sentence of death the number of death

sentences reversed or commuted on appeal and the number of instances in which clemency has

been granted and to include information on the extent to which the safeguards referred to above

are incorporated in national law161

The committee must inspect how far this recommendation

has been adopted and should seek to rectify the weaknesses in the system of gradually

abolishing the death penalty Can a target year be designated by which crimes meriting the death

penalty could be made universal How can countries with non-secular legal systems be brought

into the fold of international law

159

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 160

httpwwwfiacatorgenIMGpdfdppakistan-enpdf 161

httpgraduateinstitutechfacultyclaphamhrdocdocsecosocresolutiondeathpen1989html

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 18: UNHRCFINAL

UNHRC 14 of 44

officialdom initially However Falun Gonglsquos popularity within the masses as well as its

independence from the state and its spiritual teachings was soon perceived as a threat to the

government By the late 1990lsquos the Chinese government cracked down on the movement and

labeled it as a heretical organization Chinese legislation uses the expression ―Xiejiao zuzhi to

refer to a wide range of sectarian or unorthodox religious groups which do not meet official

approval The Falun Gong movement is included in this list48

The Falun Gong followers are the

worldlsquos largest group of prisoners of conscience The PRC often picks up practitioners and

accuses them of ―using an evil cult to destroy implementation of the law 49

China with its strict non-religious government did not take kindly to this new movement that

had garnered millions of followers both within China and internationally between 1992 and the

crackdown in 1999 Today Falun Gong is practiced freely in more than 70 countries around the

world with clubs and associations existing in a range of settings50

Beginning at the turn of the

millennium the authorities started to ban access to websites that contained material about the

movement Indeed a search on the movement on Chinalsquos Xinhua News Agency website will

even today yield nothing (It may be an interesting experiment for delegates to conduct) Those

who reported the initial crackdown were ―followed detained interrogated and threatened

according to a letter written in 1999 by The Foreign Correspondents Club (FCC) of China51

The Falun Gong movementlsquos official website deals with its persecution thus The complex

rationale behind the persecution can be broken into four elements a paranoid dictators fear of

Falun Gongs meteoric growth and soaring popularity that same dictators intense jealousy of

Falun Dafas popularity the inherent conflict between the communist regimes savage political

ideology and its polar oppositemdashFalun Dafas principles of Truthfulness Benevolence

Forbearance and the very nature of communism which to sustain itself requires periodically

labeling a small segment of the population as the class enemy to struggle against52

The Chinese crackdown on Falun Gong practitioners involved a ban on practicing it by the

Chinese Communist Party whose members as aforementioned were interestingly initially

adherents to the movement in significant numbers Indeed the party was divided from within

over their stance on the movement The government formulated an ―anti-cult law a few months

after issuing a warrant for the founderlsquos arrest ―During the first two years of the crackdown

between 150 and 450 group leaders and other members were tried for various crimes and

sentenced to prison terms of up to 18-20 years53

To this day ―central leaders turn a blind eye to

48

httpwwwamnestyorgenlibraryassetASA170112000en7a361a8e-df70-11dd-acaa-

7d9091d4638fasa170112000enhtml 49

httpwww2ohchrorgenglishissuesdefendersdocsAHRC1644Add1_EFSonlypdf 50

httpwwwfaluninfonettopic22 51

httpwwwamnestyorgenlibraryassetASA170112000en7a361a8e-df70-11dd-acaa-

7d9091d4638fasa170112000enhtml 52

httpwwwfalundafaorgengfaqshtmlpersecution 53

httpfpcstategovdocumentsorganization67820pdf Page 4

UNHRC 15 of 44

local methods of suppression against unrepentant practitioners including the reported use of

torture54

Also worth noting is the fact that Chinalsquos judicial system has been alleged to be anything but

conducive to providing justice to those using the system Indeed it is a repressive tool used by

the government to silence dissent China with its vast land mass and various provinces and

municipalities must work hard to keep its Centre strong Scores of individuals who are more

obscure than human rights activists and such are imprisoned by the government while ironically

seeking justice It has long been the custom for people of the countryside to seek justice in

Beijing if they felt that their local authorities had treated them unfairly However modern China

has not taken kindly to this tradition Local authorities are evaluated on the basis of the number

of complaints the Centre receives about them Thus they have a vested interest in thwarting the

reports of any complaints about them to Beijing Those who complain are whisked off to black

jails where ―detainees are denied access to legal counsel and in most cases contact with family

and friends They ―are kept under constant surveillance and subject to often arbitrary physical

and psychological abuse55

Chinalsquos record with regard to political prisoners and its tradition of suppressing dissent are

exacerbated by the sheer scale on which dissent is thwarted The aspect of potential torture of

prisoners further complicates the issue It is troubling that the issue of Chinese political prisoners

only gained international prominence with the case of Mr Liu Xiaobo It is not the only nation in

the world to adopt such strict policies in order to further its own ideology and the committee will

do well to ruminate upon how this tradition can be discontinued so as to allow people their

essential political freedoms

The Infringement of Rights in the Conflict with Tibet

Despite the furor that has been inconsistently directed towards its human rights record China

continues to impose tightening restrictions on rights of expression association and assembly

The Chinese government carries on devising social and economic changes that retain its firm

authority over its citizens which in turn enables a host of human rights violations In the context

of Tibet China has failed to address the grievances of the people there who have been made

victims of social discrimination and have unequal access to opportunities Scores of Tibetans are

marginalized and detained for their religious inclinations which are further suppressed by the

imposition of intense patriotic educationlsquo campaigns whereby socialism is furthered and all sorts

of religious or individualistic tendencies are thwarted

54

Ibid Page 5 55

httpwwwhrworgreports20091112alleyway-hell-0 Page 4

UNHRC 16 of 44

Despite its totalitarian approach China refuses to accept responsibility for the issue Instead it

blames westernlsquo forces for trying to instigate separatism56

The indifference on the part of

China with particular regard to Tibet is apparent with Chinese authoritieslsquo continuous rejection

of ―inconvenient requests by UN human rights experts for visits to the Tibet Autonomous

Region57

During 1912 and 1951 Tibet underwent a period of de facto independence58

While it was still

territorially a part of China it enjoyed relative freedom in its political discourse Tibetan

autonomy was confined within the context of Chinese suzerainty and should not be interpreted

as unrestrained political independence Since 1951 however the Chinese government has taken

steps to ensure its absolute and undeniable dominance over Tibet from which emanates the strife

under discussion Gross violations of human rights have taken place in China administered by

officials with the purpose of cultivating consent with regard to its control over the region

Suppression has led to the inevitable extensive discontent in Tibet a fury which was unleashed

in 2008 The Tibetan unrest of 2008 was a series of protests and demonstrations - not merely in

the Tibet Autonomous Region but elsewhere as well - that later transformed into rioting burning

looting and even killing59

The rioters set fire to state vehicles and clashed violently with the

police installed in the region The crackdown of Chinese authorities in response to the riots was

severe resulting in deaths on both sides and mass imprisonment by state authorities The degree

to which human rights were violated and abused during this crackdown cannot be overstated

The Chinese also revoked the freedom of sharing of information and imposed a ban on the entry

of media officials in the region to contain

information about the unrest and play down

protests60

A Tibetan Government in Exile has existed in India

since 1959 established by the 14th

Dalai Lama61

This Central Tibetan Administration considers the

issue as an illegitimate military occupation by the

Chinese state The Administration works with the

agendas of restoration of freedom in Tibet and rehabilitation of Tibetan refugees

Historical facts refute such a fallacy however The simple reality that the installation of the 14th Dalai Lama

needed the approval of the national government is sufficient proof that Tibet did not possess any independent power

during that period ndash (httpwwwchinaorgcne-whitetibet9-2htm)

56

httpwwwunhcrorgrefworldcountryAMNESTYCHN49b8dfc11a0html 57

Ibid 58

Grunfeld A Tom Reassessing Tibet Policy 2000 59

httpwwwnytimescom20080316worldasia16iht-tibet111134870html 60

Watts Jonathan Branigan Tania (March 18 2008) Tension rises as armed police mass in capital The

Guardian (London) Retrieved November 1 2011 61

httpwwwtibetnetenindexphpid=14

UNHRC 17 of 44

The censured freedom of expression is one of the multiple infringements on rights that are

imposed by China on Tibet Tibetans are denied the basic right to articulate their views through

political discourse Human rights activists advocate the freedom of speech for Tibetans under the

existing and future political arrangements Religious and political figures in Tibet are placed

under house arrest limiting their freedom of movement (in contradiction to article 13 of the

Universal Declaration of Human Rights)62

As was highlighted during the unrest in 2008 China

has often stripped the Tibetan population of its fundamental rights to associate and assemble In

2000 nine Tibetan prisoners in Kandze were charged for participating in a peaceful protest to

five-year prison terms in October 1999 (which were later increased to ten-year terms)63

This example leads us to another crop of abuse conducted overtly by Chinese authorities

arbitrary detention Article 9 of the Universal Declaration of Human Rights reads ―No one shall

be subjected to arbitrary arrest detention or exile64

Chinese law however permits authorities

to detain persons without formally arresting or charging them and persons may be sentenced

administratively to up to 3 years in reeducation-through-labor camps and other similar facilities

without a trial

Chinese authorities have been unresponsive to concerns expressed by the United Nations

Working Group on Arbitrary Detention No counter-explanation was given either over the case

of three Tibetans who had their sentences extended for staging a peaceful political protest during

the Working Groups visit to Drapchi in October 1997 despite international pressure65

Infinite

examples of arbitrary arrests and detentions exist in China international authorities have called

on China to cease this practice and release such detainees immediately absent evidence that they

have engaged in criminal acts No state can or should be able to hold anyone for engaging in

peaceful political activity All humans

should be granted internationally recognized

due-process protections which includes the

right to be informed of the charges leveled

against them66

The question of whether

these detainees are given an impartial trial if

one at all is not even raised

In addition to the arrests carried out in

violation of international law there are

grave evidences of abuses during detention

62

httpwwwhrworgnews20000612human-rights-violations-tibet 63

Ibid 64

httpwwwunorgendocumentsudhr 65

httpwwwhrworgnews20000612human-rights-violations-tibet 66

httpwwwhrworgnews20000612human-rights-violations-tibet

UNHRC 18 of 44

Incidences of beatings at time of arrest and torture (including the administration of electric

shocks and deprivation of food and medical treatment)67

during custody are widely reported

These are not isolated cases rather the product of a holistic policy of dealing with political

dissidents In one notable incident in May 1998 political prisoners in Drapchi staged major

protests to coincide with a visit from a European Union delegation The protests were non-

violent but the authorities reaction was severe several protestors were shot at and one monk

Lobsang Gelek subsequently died68

The Convention Against Torture (CAT ratified by China in 1988) requires the state to prevent

torture and punish those in violation of the law China has not amended its own laws to comply

with even the first article of CAT69

Such practices explicitly stand in contempt of Article 5 of

the Universal Declaration of Rights which censures the use of torture or cruel treatment as

punishment Dr Manfred Nowak the UN Special Rapporteur on Torture stated that ―he was

struck by the strictness of prison discipline and a palpable level of fear and self-censorship when

talking to detainees following his brief assessment of Chinese and Tibetan prisons in 200570

The committee will be looked upon to review ways in which the situation can be monitored more

carefully and what responses if any can be cultivated to impede similar future actions by

China

The continued violations of religious freedom and implementation of policies designed to

diminish religious practices by the State to serve its political needs is a cause of concern Again

referring to the Universal Declaration of Human Rights Article 18 reads ―Everyone has the right

to freedom ofhellipreligion this right includes freedomhellipto manifest his religion or belief in

teaching practice worship and observance71

The policies implemented by Chinese authorities

through use of coercion violent repression and imprisonment impinge upon the freedom of

Tibetans to practice their religion freely China has also strictly enforced re-education programs

for dissident factors within the state The program is aimed at ―combating separatism protecting

stability and promoting development and is intended to reform the political ideology of people

who refuse to accept state control of what they perceive as vital aspects of their religious lives

and beliefs The committee will be expected to deliberate upon the protection of religious

freedom and practices of individuals as well as the validity of these re-education programs in

light of human rights and liberties

Tibet is not the only region where political tensions surrounding autonomy run high The

Kosovo-Serbian conflict is pertinent to recall The Republic of Kosovo declared itself to be an

independent entity on February 17 2008 As of 11 October 2011 85 UN states recognize the

independence of Kosovo However Serbia maintains that Kosovo is a UN governed entity under

67

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 68

httpwwwfreetibetorgabouttorture 69

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 70

Ibid 71

httpwwwunorgendocumentsudhr

UNHRC 19 of 44

its sovereignty Russia and China are among those who do not recognize the Republic while the

USA UK and France have recognized Kosovolsquos declaration of independence This highlights the

rift between the United Nations Security Council over the issue The case of Tibet is all the more

important in light of the fact that many such pockets exist in the world struggling for self-

determination

Media Links

httpwwwfreetibetorgnewsmedia2008-protests-summary

httpwwwguardiancoukworldgallery2008mar19tibetchinapicture=333178281ampindex=7

Chinarsquos Violation of Ethnic Minority Rights

One of the greatest blemishes on Chinalsquos human rights record is in the area of ethnic minorities

and the extent to which China protects ethnic minority rights On paper Chinalsquos policies are

based on ethnic equality and regional ethnic autonomy Ethnic minorities are supposed to be

benefitting from preferential policies in the political economic cultural and educational spheres

However the ground realities are infinitely different Questions have been raised over the extent

to which the government fairly provides services to these minorities and allocates resources

equally to them The Chinese government is seen to largely prefer its Han majority The

minorities claim they are exploited for their resources and in turn not even provided with the

same level of social services as the Han people China is an atheistic government and the fact

that many ethnicities garner their identity in major part from their religious affiliation leads to a

precarious situation The Mongols Tibetans and Uighurs all come to mind when discussing the

issue of China and ethnic minority rights

―Everyone is entitled to all the rights and freedoms set forth in this Declaration without

distinction of any kind such as race colour sex language religion political or other opinion

national or social origin property birth or other status Furthermore no distinction shall be

made on the basis of the political jurisdictional or international status of the country or

territory to which a person belongs whether it be independent trust non-self-governing or

under any other limitation of sovereignty

- Article 2 Universal Declaration of Human Rights

The International Convention on the Elimination of Racial Discrimination defines racial

discrimination as any distinction exclusion restriction or preference based on race colour

descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the

recognition enjoyment or exercise on an equal footing of human rights and fundamental

UNHRC 20 of 44

freedoms in the political economic social cultural or any other field of public life72

It is due to

this that the international community has adopted the norm of subsuming ethnicity under the

terminology of race

―The Peoples Republic of China is a united multi-ethnic country So far 56 ethnic groups have

been identified and recognized by the central government The population of various ethnic

groups differs greatly While the Han ethnic group has the largest population and that of the

other 55 ethnic groups is relatively small so they are customarily referred to as ethnic

minoritieslsquo According to the fifth national census conducted in 2000 the population of all the

55 ethnic minority groups totaled 10449 million accounting for 841 percent of the total

population of China73

Chinas official 55 minorities are located primarily in the south west

and north of China Only Tibet and Xinjiang have a majority population of official minorities

while all other provinces municipalities and regions of China have a Han majority

One of Chinalsquos autonomous regions is the Xinjiang Uighur Autonomous Region (XUAR)

located in western China The area is vast accounting for one sixth of Chinalsquos land and houses

around 13 major ethnicities including the Uighurs who are a predominantly Muslim people with

origins in Central Asia The Uighurs have had strained ties with the state and have often resisted

Chinese authority74

In turn the Chinese government has reacted sometimes violently against

restless factions in the region One of the most passive aggressive forms of response on the part

of the Peoplelsquos Republic has been the encouragement of the migration of the Han people ndash

Chinalsquos ethnic majority ndash to the XUAR75

Around 90 of Xinjiangs population comprised of

Uighurs in 1949 now it is estimated that Uighurs make up only about 45 of the population76

The policies in Xinjiang are said to be designed to ―promote economic development not

demographic change In reality though the influx of migrants has amplified Uighur discontent

as Han and Uighurs compete over limited jobs and natural resources77

The United Stateslsquo

Congressional-Executive Commission on China reported that in 2006 the XPCC (Xinjiang

Production and Construction Core) reserved approximately 800 of 840 civil servant job openings

for Han Chinese78

One of the causes of the Han monopoly in the employment sector is the

linguistic advantage afforded to them and perpetuated by the education system As part of its

efforts to implicitly impose a unified culture the language policy was altered by the state with

an increased focus on use of Mandarin in schools at the expense of the local languages

Methods of education special to the ethnic peoples of the XUAR including the Muslim Uighurs

are suppressed For example a campaign by the PRC in 2001 targeted religious teachers and

72

httpwww2ohchrorgenglishlawcerdhtm 73

httpenglishgovcnofficial2005-0728content_18127htm 74

httpwwwcfrorgchinaeast-turkestan-islamic-movement-etimp9179 75

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p8 76

httpnewsbbccouk2hiasia-pacific3330803stm 77

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p4 78

httpwwwcolumbiaeducunewsclips20080801UighursTWPOSTpdf

UNHRC 21 of 44

endeavored to sever ties between mosques and groups involved in allegedly ―separatist

activities Around 8000 imams were required to undergo ―political reeducation in this regard

and become ―patriotic religious personalities Ethnic minorities are educated in ways that do not

allow them to learn their own languages or practice their own religion In 2001 for example a

Muslim girl was expelled from school for praying 79

Moreover in an attempt to further its socialist agenda and bind ethnic minorities together

minority cultural activities are often hindered In its place nationalistic values are given a

premium and integrated into society so as to tie the entire country in a unified Chinese foldlsquo

Resultantly an asymmetry with regards to the provision of services and protection of cultural

identity can be found in almost every ethnic minority region in the country The repression

against minorities has wider implications on the human rights situation for all This leads to

creation of a vindictive attitude among the minorities not only against the government but also

the Han majority

In July 2009 this attitude manifested itself in

the form of severe riots between the Han and

Uighur communities in Xinjianglsquos capital city

Urumqi Ethnic tensions elevated to the point

that police involvement was made necessary

According to Chinese state media at least 150

people were killed and more than 800 were

injured The riots were reportedly sparked by a

Uighur protest over the ethnically motivated

killing of two Uighur workers in the southern

province of Guangdong

On the topic of allegations of separatism it is interesting to note that post 911 it has been noted

that the Chinese government has used concerns about terrorism as a method for suppressing

ethnic activity This is possible through the characterization of certain ethnicities as having

fundamental leanings The Muslim Uighurs fell under fire for this very reason after the

September 2001 attacks

One of the ways that the Chinese government with its Han leanings has asserted its presence in

the region is through the smokescreen of the XPCC The Peoplelsquos Liberation Army and the

XPCC are present in the region per the government to ―consolidate border defense accelerate

79

wwwminorityrightsorgdownloadphpid=29 Page 30

UNHRC 22 of 44

Xinjianglsquos development and reduce the economic burden on local governments and the local

people of all ethnic groups80

The heavy militarization of ethnic minority

regions also enables the Chinese government

to quickly respond to skirmishes between the

minorities and the Han For example clashes

between the Uighurs and the Han in the

XUAR are quickly clamped down upon The

response by Chinese authorities always

focuses on the minority groups in the region

The typical response includes a period of

strike hardlsquo security measures during which the minorities are subjected to police patrols of

crowded areas identity checks street searches increased criminal investigations and accelerated

trials The measures also include mandatory political indoctrination classes for the Uighur

population Swift Chinese response to ethnic dissidence precludes the possibility of trying

protestersrioters under due process This phenomenon also contributes to the controversy of

China and its policy of arbitrary imprisonment

Essential to any countrylsquos social progress is the protection and provision of the basic rights to all

its citizens For a country like China which has a significant standing in the international

community the degree to which human rights are upheld comes under added scrutiny Minorities

need to be guaranteed provision of not only fundamental rights but additional ones that grant

them equal opportunities

Recent Developments

3 November 2010 UN Secretary General pushes China on human rights

Ban Ki-moon the United Nations secretary general has called on China to respect human rights

after critics accused him of dodging the issue on a trip to Beijing The UN secretary general met

Hu Jintao the Chinese president but failed to challenge Mr Hu on the imprisonment of Liu

Xiaobo the democracy activist who was awarded this years Nobel Peace prize and raise the

issue of human rights81

80

httpwwwchinaorgcne-white200305269htm 81

httpwwwtelegraphcouknewsworldnewsasiachina8107148UN-Secretary-General-pushes-China-on-human-

rightshtml

UNHRC 23 of 44

5 November 2011 Yeqing Ji from Shanghai China will most likely not be able to have children

after she said two forced abortions physically impaired her uterus82

8 September 2011 The Chinese government has renewed Googlelsquos license to allow it to

continue operating its local website in the country83

13 November 2011 Seven months ago

Chinese police detained the countrylsquos most prominent artist Ai Weiwei at the airport and drove

him to a hidden location It was the beginning of what is to be a two-and-a-half month nightmare

for the architect and sculptor who is also a former darling of the Communist Party who later

turned into an outspoken government critic Ai was held on vague charges of economic crimes

was kept in isolation and subjected to Kafka-esque interrogations84

April 19 2011 Amnesty International a 21-year-old monk Phuntsog set himself on fire in an

apparent anti-government protest in March 2011 Instead of putting out the flames Chinese

police beat the young monk creating huge resentment in the monastery85

At least 11 ethnic

Tibetans have been detained for protesting against the event and against government policies

They are at risk of torture and other ill-treatment86

29 May 2011 300 Tibetan monks detained in Kirti monastery by Chinese security forces87

15 September 2011 Chinese Uighurs economic fears

Amid ethnic tensions minority regards modernization plans in Xinjiang as favoring Han Chinese

migrants88

20 November 2011 Another of Chinalsquos minorities the Hui Muslims in Ningxia do not feel

stigmatized

―There is an important reason why Hui and Han Chinese get along with each other Unlike

Muslims of the other ethnic minorities like Uighur Kazakh Kyrgyz and Tajik the Hui Muslims

speak Mandarin just like the Hans89

82

httpabcnewsgocomBusinesswoman-china-forced-abortions-leaves-unable-

childrenstoryid=14880884Tsia7LIk6so 83

httpwwwbbccouknewsbusiness-14832392 84

httpwwwthedailybeastcomnewsweek20111113ai-weiwei-speaks-out-on-his-detentionhtml 85

httphradvorgaggregatorsources10 86

httpwwwamnestyorgenlibraryassetASA170212011end75f7611-be66-4d5a-9391-

c80c43501d56asa170212011enhtml 87

httphumanrightshouseorgArticles16503html 88

httpwwwaljazeeracomvideoasia20110920119158016969449html 89

httpwwwtodayszamancomnews-263322-chinas-hui-muslims-do-not-feel-stigmatizedhtml

UNHRC 24 of 44

Conclusion

The United Nations Human Rights Council at LUMUN 2012 will be looked upon to provide a

framework for the resolution of these issues in a universal context The scope of the issues

should be expanded and applied to countries other than China The committee will have to make

recommendations which have universal application and resolve all aspects of the issue

comprehensively For any queries related to the study guide please do contact either (or both)

the committee directors at the given addresses

UNHRC 25 of 44

Topic Area B Abolishing the Death Penalty

Introduction to the Topic Area

The death penalty is formally defined as the execution of an offender sentenced to death after

conviction by a court of law of a criminal offenselsquo90

The concept of a capital crime is subjective

and states have made use of this practice in response to multiple forms of crime The use of the

death penalty has produced much controversy with regard to its apparent violation of

fundamental human rights as delineated in the Universal Declaration of Human Rights and

subsequent human rights charters and treaties It is asserted that the use of death penalty is in

contravention to the peopleslsquo right to life promised to every individual under Article 3 of the

Declaration91

Moreover Article 2 of the Charter of Fundamental Rights of the European Union

lucidly bars the imposition of death penalty as a form of punishment92

Arguments against the

use of death penalty are also made on the grounds of inhumane methods which are employed to

see out the process Historically multiple methods have been used which include death by

hanging severing of the head lethal injection shooting and electrocution93

94

As a response states have made keen efforts to abolish

the death penalty particularly in the last two decades as

can be interpreted from the graph on the right which

represents the number of states that have abolished the

death penalty Countries belonging to the European

region with the exclusion of Russia and Belarus have

sought to revoke the use of the practice The death

penalty is most commonly seen to be a formal practice

in most of the developing countries The trend is

apparent in Latin America Africa and Asia

96 countries have formally abandoned the use of death penalty 58 countries allow the use95

Other states have abolished the penalty in practice but the laws remain in place for the

imposition of the penalty as a response to certain crimes The imposition of the death penalty has

90

httpwwwbritannicacomEBcheckedtopic93902capital-punishment 91

httpwwwunorgendocumentsudhr 92

httpwwweuroparleuropaeucharterpdftext_enpdf 93

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffle

re-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 94

httpwwwdeathpenaltyinfoorgmethods-execution 95

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf

Figure 1 (Drag to enlarge)

UNHRC 26 of 44

seen a decline over the recent years with a fall in the number of executions that take place

annually It would however be incorrect to assume that the practice is not prevalent or widely in

effect Amnesty International reported that at least 2024 new death sentences were imposed in 67

countries in 2010 Moreover there were at least 17833 people sentenced to death worldwide at

the end of 201096

Again these are minimum figures which are the safest that can be inferred

from the given research There were 527 known executions carried out in 2010 globally97

This

figure however does not include the number of executions that took place in China where

analysts believe that more than a thousand people were put to death in the past year

The statistics represent the number of people executed through capital punishment One way to

formally define capital punishment is to regard it as the state sanctioned killing of an individual

through a judicial process as a punishment for a crime (defined as a capital crime by the state)98

Capital punishment is the most obvious and prevalent manifestation of the death penalty It is

often perceived as a statelsquos right in order to preserve law and order against any individual who

engages in serious crimes that threaten other individuals or the state Those who advocate against

the use of capital punishment label it as a symptom of a culture of violence not a solution to

itlsquo99

The controversy surrounding the topic is based on the legal ethical and moral acceptability

of the statelsquos right to an individuallsquos life The debate entails several social and economic factors

some of which will be reviewed in closer detail in the relevant section of this guide

One of the most striking aspects related to the issue is the imposition of the capital punishment

on juveniles The sentencing of juveniles to death is in clear breach of international law The

morality and validity of such a practice is often called into question and has been put under

relentless scrutiny despite all of which the practice is still carried out in a number of countries

Historically the United States China and Iran have the worst records relating to juvenile death

sentences100

The study guide also includes a separate section for the case of juveniles in which

the legal and social aspects of the problems are detailed

As stated states have made use of the death penalty to punish crimes of varying natures The use

of the death penalty is reserved for only the most seriouslsquo crimes as put forth in international

law101

The notion of a capital crime however is a subjective one states that have doled out

death sentences have defined it differently In certain countries the death penalty is only used to

charge criminals accused of war crimes In other countries the penalty is reserved for crimes like

96

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf 97

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010 98

httpusersrcncommwooddeathpenhtml 99

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 100

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 101

httpwwwunorgdocumentsecosocdocs1995e1995-78htm

UNHRC 27 of 44

murder rape or even robbery States also use the death penalty against individuals who are guilty

of treason The issue however is that many states practicing the death penalty impose the

punishment even when the crimes do not meet the threshold for the aforementioned most

seriouslsquo crimes The ability of states to define what constitutes as a capital crime has led to states

abusing their powers as has been observed in the sentences ordained by military courts

Moreover even the radicals who make the argument of the punishment fitting the crime agree

that in many instances individuals have been executed for softlsquo crimes crimes that were

certainly not tantamount to charges of murder or crimes against humanity The issue of apparent

violations of human rights is further exacerbated in these instances The study guide will discuss

the universal crimes that have resulted in the awarding of the death penalty and examine the

issue further The committee will be expected to discuss the feasibility of drawing up an

international definition of crimes which in isolated instances perhaps may be appropriate for a

sentence like the death penalty

Another pertinent aspect surrounding the debate is that of extrajudicial killings The execution of

a person by state authorities without the authority of a judicial proceeding is termed as an

extrajudicial killing Many states have used extrajudicial killings to establish their authority and

order without having to wade through the legal process By doing so they have deprived scores

of people of their fundamental right to free and fair trials Governments have also employed this

tactic to exercise political aggression and to suppress dissent A particular point of concern is the

fact that some states have made use of these killings even when they have officially revoked the

imposition of the death penalty Extrajudicial killings are carried out persistently in many

countries ndash the list includes countries like Iran Iraq Israel Philippines102

Most recently the

killing of Anwar al-Awlaki and Samir Khan in Yemen by a sanctioned National Security Council

move by the USA was an example of states embarking on such paths to eliminate threats to

national securitylsquo103

102

Multiple citations for each country can be found in the second paragraph article titled Extrajudicial killinglsquo on

Wikipedia 103

httpwwwtelegraphcouknewsworldnewsbarackobama7564581Barack-Obama-orders-killing-of-US-cleric-

Anwar-al-Awlakihtml

UNHRC 28 of 44

Wrongful convictions lead many to believe in the inherent incapacity of the death penalty to

serve justice On September 21 2011 US citizen Troy Davis was executed in Georgia after

which seven of the nine witnesses who testified against him in the case that led to his execution

recounted or retracted their evidences A petition with nearly one million signatures was put

forth to reconsider his case it was rejected On the same day a 17 year old boy was publicly

hanged in Iran for killing a popular athlete his justification based on self-defense was ignored

Also on the same day a Pakistani national was executed in China on grounds of drug trafficking

an offence that does not often result in capital punishment The need for the resolution of this

issue is pressing and the committee needs to deal with all aspects of the problem in a

comprehensive and enduring manner104

Capital Punishment

In 2010 23 countries implemented capital punishment A total of 527 executions (plus the 1000+

carried out in China alone) were known to have taken place with Iran Yemen USA and North

Korea meting out a significant number of sentences105

The figure is lower than the records

computed for years past There are more states which are now abolitionist either in law or in

practice with regard to the imposition of the punishment Gabon was officially the last country

to rescind the practice while bills calling for an end to capital punishment have been presented

to parliaments in Lebanon Mali Mongolia and South Korea106

Renewed efforts are

104

httpwwwamnestyorgennews-and-updatesus-executes-death-row-prisoner-troy-davis-2011-09-21 105

httpwwwguardiancouknewsdatablog2011mar29death-penalty-countries-world 106

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010

UNHRC 29 of 44

simultaneously being made on the international front to implement laws against capital

punishment A third resolution establishing a moratorium on the use of death penalty passed the

UN General Assembly on December 21 2010107

Despite the increasing momentum towards an eventual elimination of the practice the number of

executions taking place annually is a cause of major concern Advocates of the death penalty

assert that the practice is an effective means of deterring crime in society Public executions are

often held in Iran Afghanistan and Palestine for example to demonstrate the fate awaiting

those who commit similar crimes108

Arguments are made on the grounds of justice that it is

proper and fair to take an eye for an eye and a life for a life and that some individuals deserve

it for the crimes they commit

Those opposing the practice question the morality of an action sanctioned by the state which

endorses deprivation of the right to life a fundamental human right under the Universal

Declaration of Human Rights109

There are inescapable flaws within legal systems which are

aggravated by discrimination prosecutorial misconduct and inadequate legal representation

Moreover the risk of executing the innocent can never be eliminated110

An alternative is

presented in the form of imprisonment for life without parole which results in a parallel debate

is imprisonment for life a viable surrogate to the practice of death penalty A thread from this

debate also relates to the economic feasibility of carrying out a death sentence as opposed to the

feasibility of imprisonment for life

Deterrence

Capital punishment is often propagated as an adequate approach in the deterrence and prevention

of crime The logic is that if murderers are sentenced to death potential murderers will think

twice before killing for fear of losing their own life The deterrence theory presumes that the

once the punishment for a certain crime is established the criminal by committing the crime

voluntarily assumes the risk of receiving the prescribed punishment for the crime Only when the

most severe punishment has been set will there be a possibility of an individual evaluating their

actions in light of the consequences111

107

httpwwwundemocracycomA-RES-62-149pdf 108

httpwwwamnestyorgennews-and-updatessharp-rise-public-executions-iran-executes-first-juvenile-

offenders-2011-2011-04-27 109

wwwunorgendocumentsudhr 110

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 111

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 30 of 44

The death penalty it is asserted ensures that convicted criminals do not offend again moreover

it is deemed to be a just penalty for atrocious crimes It is further alleged that many criminals

who are set free even after lengthy sentences regress and go on to commit heinous crimes

Therefore there should never be the possibility of a release clause112

The deterrence theory is modeled on the grounds of human psychology logic and rationale As a

professor of jurisprudence Ernest van den Haag PhD wrote ―Common sense lately bolstered

by statistics tells us that the death penalty will deter murder if anything can People fear nothing

more than death Therefore nothing will deter a criminal more than the fear of death These

statements were further validated by a US Supreme Court Justice who said on record that

Prima facie the penalty of death is likely to have a stronger effect as a deterrent to normal

human beings than any other form of punishmentlsquo113

Numerous studies have been conducted on

the subject with varying results One of the most established studies was conducted in USA

using a panel data set of over 3000 counties from 1977 to 1996 which concluded that on

average one death sentence resulted in 18 fewer murders114

Delegates will be expected to be

familiar with other similar studies

These studies are commonly refuted as not crediblelsquo by opponents of the capital punishment

who also deny the correlation between crime and death penalty as a fabricated relationship which

cannot be empirically established115116

A study of the relationship between capital punishment

and the incidence of murder was conducted for the UN in 1988 and updated in 2002 The

conclusion was ―The investigation has not provided scientific proof that executions have more

deterrent effect than life imprisonment It is unlikely that such evidence will ever come

Deterrence hypothesis finds no support in the survey117

Another counter-argument asserts that crime is still a persistent feature of the societies that

continue to award the death penalty while many of the abolitionist states enjoy low crime rates

This can be evidenced by comparing the crime rate in USA or Pakistan with that of Canada or

some European state In Canada for example the homicide rate per 100000 fell from a peak of

309 in 1975 the year before the abolition of the death penalty for murder to 241 in 1980 and

in 2003 27 years after abolition the homicide rate was 173 per 100000 44 per cent lower than

in 1975118

112

httpwwwdeathpenaltyinfoorgfacts-about-deterrence-and-death-penalty 113

httpdeathpenaltyproconorgviewresourcephpresourceID=002000 114

httpdeathpenaltyproconorgsourcefilesThe20Deterrent20Effect20of20Capital20Punishmentpdf ndash

Delegates should carefully examine certain parts of this document to establish the credibility of the assertions made

They should also invest in trying to locate studies that refute the assertions made in this and similar studies 115

httpwwwdeathpenaltyinfoorglaw-enforcement-views-deterrencelawenforcement 116

httpwwwdeathpenaltyinfoorgDonohueDeterpdf 117

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 118

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml

UNHRC 31 of 44

The lack of evidence on the production of a unique deterrent effect points to the danger of

relying on the deterrence hypothesis as a basis for public policy on the death penalty

Retribution amp Morality

An important terminology that delegates need to familiarize themselves with is that of

―retributivism119

It is defined as ―a policy of criminal justice that sponsors the punishment of

criminals in retribution for the harm they have inflicted120

Criminals deserve to be punished in

proportion to the gravity of their crime regardless of whether the victim or anyone else desires

it we may all deeply regret having to carry out the punishment but consider it warrantedlsquo is

what many say in defense of the theory121

The need for the establishment of a visibly just state arises from the potential risks of not having

one As has been visible in many developing countries with shaky legal systems when criminals

are not adequately punished for their unlawful behavior the public takes the law into its own

hands and deals out vigilante justice It is asserted that retributivism is essential for a functioning

society where individuals respect the supremacy of law

The concept of retribution in society is also grounded in religious beliefs The concept of an eye

for an eye has been a part of all three Abrahamic traditions However in the modern world it is

Islamic nations that still retain the practice based on these grounds Similar traditions can be

found in Hinduism Christianity and Buddhism as well as other religions in different parts of the

world In many non-secular countries the constitutions and state laws are derived from religious

doctrines

Opponents dismiss this aspect of the argument as being emotionally charged with little rational

logic to support the contention They claim that the establishment of capital punishment gives

birth to a culture of violence endorsed by the state It perpetuates the cycle of aggression and

brutality something which the state should be actively inhibiting not endorsing

Wrongful Convictions

The death penalty carries with it the danger of wrongfully convicting an innocent person for

crimes he did not commit There is the potential for capital punishment to evolve into sheer

miscarriage of justice as in certain circumstances states are often seen to rush the trials and

convict the accused hastily This practice takes foremost apparently in military courts often in

119

Cavadino M amp Dignan J (1997) The Penal System An Introduction (2nd ed) p 39 London Sage 120

httpdictionaryreferencecombrowseretributivism 121

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 32 of 44

the developing or lesser-developed countries where the system of law is not properly established

It is not however exclusive to these countries Examples can be drawn from countries like

Philippines Thailand Iran and Palestine to name just a few where executions are carried out at

alarming pace removing the possibility of reviews

On 15 August 2004 Atefah Rajabi Sahaaleh was hanged in a public square in the Iranian city of

Neka Her death sentence was imposed for adultery and crimes against chastity122123

Atefah

was executed a week after the trial was run Following the execution the Judge for the case was

arrested for investigation by the Intelligence Ministry The media reported that in addition to the

confession of his rape of Atefeh Judge Rezai who served as judge jury and executioner also

confessed to torturing her during interrogations to extract names of others she had relations with

No transcripts from court proceedings were recorded The State alleged that Atefah was 22 at the

time of her execution A witness later claimed The judge just looked at her body because of

the developed physique and declared her as 22124

ndash her birth certificate revealed she was born

in 1988 Furthermore Atefah did not have access to a proper defense where she could contest

charges leveled against her This is one example of many such cases of miscarriage of justice

Something that recurs in these cases is the failure of the police or prosecuting authorities to

prevent the use of unreliable witnesses the misuse of evidence or confessions and the provision

of inadequate defense representation The advent of DNA profiling and the use of it as positive

evidence in criminal cases has resulted in the exoneration of multiple death row inmates on

grounds of forensic evidence or lack thereof Since 1973 138 people have been released from

death row in the United States after it was proven that they were innocent125

In 2009 Paul

House was cleared of murder and exonerated in Tennessee USA after having served 22 years

on death row His innocence was proclaimed in light of substantial additional DNA testing and

further investigationlsquo 126

Amnesty International has noted examples of wrongful convictions from elsewhere as well

including Jamaica Japan China Nigeria and Tanzania127

Paul G Cassell a former law clerk to

the Chief Justice of USA stated the mistaken release of guilty murderers should be of far greater

concern than the speculative and heretofore nonexistent risk of the mistaken execution of an

innocent personlsquo highlighting the case made by those who advocate the death penalty even in

light of wrongful convictions128

122

httpwwwcosmolearningcomdocumentariesexecution-of-a-teenage-girl1 123

httpnewsbbccouk2hi5217424stm 124

httpnewsbbccouk2hi5217424stm 125

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 126

httparticlescnncom2009-05-13justicetennesseeexonerated_1_death-row-inmate-dna-evidence-house-

arrest_s=PMCRIME 127

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 128

httpdeathpenaltycurriculumorgstudentcaboutargumentstestimony3bhtm

UNHRC 33 of 44

Alternative to Death Penalty

All abolitionist states have reverted to the practice of sentencing criminals to life imprisonment

(some without parole) which is also termed as death by incarceration Widely regarded as a more

humane course of action life imprisonment is also alleged to be a more economical practice

While ensuring public safety by keeping criminals away from society this system also saves the

lives of innocent people who have been falsely or wrongfully convicted The setup inhibits and

curbs the cycle of violence while retaining the deterrence factor it is strongly asserted

Advocates for the death penalty are averse towards life imprisonment for a number of reasons

They cite the unreliability of the system as one of the flaws which impedes the possibility of

such a sentence being successful A certain James Moore serves as a valid example in this case

In 1962 James Moore raped and strangled 14-year-old Pamela Moss The victimlsquos parents opted

out of capital punishment for Moore and he was instead sentenced to life in prison without

parole Twenty years later a change in sentencing laws in 1982 renders James Moore eligible for

parole every two years129130

Kenneth McDuff is another example McDuff was convicted and sentenced to life imprisonment

Years later due to the issue of overcrowding in prisons McDuff was released following which

he killed eight more people McDufflsquos example is of an individual from a developed country

with an established legal system in place131

Overcrowding is a feature of prisons in developing

or lesser developed countries In many such states criminals have also been known to easily

break out from penitentiaries

The economic aspect of the debate is murky at best There is a lack of empirical data on the

subject which is why the arguments of both these sides cannot be settled beyond doubt

Advocates of capital punishment insist that the overall costs of the practice are far lesser than the

costs of housing an inmate for a lifetime132

They also suggest that the life imprisonment allows

criminals to conceive new habeas corpus petitions which on legal grounds cannot be rejected

automatically resulting in more trials

On the other hand substantial arguments are made which stress that the cost of legal proceedings

in capital cases is in truth more than that of other cases States and nations spend a significant

portion of the taxpayerlsquos money in meting out such punishments133

Delegates when addressing

this portion of the debate will need to be aware of the financial aspects of the issue as it forms

for many states an important part of whether capital punishment should be revoked or

not

129

httpwesleylowecomcphtmldeter 130

httpwwwnytimescomkeywordparole 131

httpwesleylowecomcphtmldeter 132

Ibid ndash view section titled Capital Punishment and its costslsquo 133

httpwwwamnestyusaorgour-workissuesdeath-penaltyus-death-penalty-factsdeath-penalty-cost

UNHRC 34 of 44

Imposition of Death Penalty on Juveniles

The prohibition on the death penalty for crimes committed by juvenile offendersmdashpersons under

age 18 at the time of the offensemdashis well established in international law specifically in the

Convention on the Rights of Child

ldquoNo child shall be subjected to torture or other cruel inhuman or degrading treatment or

punishment Neither capital punishment nor life imprisonment without possibility of release shall

be imposed for offences committed by persons below eighteen years of agerdquo134

- Article 37(a) Convention on the Rights of Child

ldquoSentence of death shall not be imposed for crimes committed by persons below eighteen years

of age and shall not be carried out on pregnant womenrdquo135

- Article 6(5) International Covenant on Civil and Political Rights

The treaties are a unanimously agreed set of non-negotiable standards and obligations By

acceding to the treaties and ratifying them governments commit to protecting and ensuring

childrens rights and to holding themselves accountable for this commitment before the

international community

Even though the practice of capital punishment on juveniles is relatively rare however in clear

contravention of international law nine countries have executed offenders who were juveniles at

the time of their crimes between 1990 and 2005136

These countries include the Peoples Republic

of China (PRC) the Democratic Republic of the Congo Iran Nigeria Pakistan Saudi Arabia

Sudan the United States and Yemen137

The USA has since moved to implement a ban on capital

punishment for juveniles However in most other countries of the preceding list the practice is

still enshrined in the judicial system Iranlsquos record in particular has been abominable over the last

decade It has carried out 39 executions of persons under the age of 18 since 2005 Presently

over a hundred individuals are placed on death row for crimes committed as juveniles The

executions of Mahmoud Asgari Ayaz Marhoni and Makwan Moloudzadeh became international

symbols of Irans child capital punishment and the judicial system that hands down such

134

httpwww2ohchrorgenglishlawcrchtm 135

httpwww2ohchrorgenglishlawccprhtm 136

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf - This document by the Human Rights Watch

called The Last Holdoutslsquo is a good summary of juvenile executions and should be reviewed 137

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 - Contains a list with

statistics and details of countries which have allowed the imposition of death sentence to juveniles

UNHRC 35 of 44

sentences138139140

Saudi Arabia and China too have questionable records that need to be

scrutinized further

While regional treaties and charters usually substantiate international law the Arab Human

Rights Charter of 2004 is unique among regional and international treaties in that the ban on the

juvenile death penalty in it is not absolute but merely optional141

Furthermore national laws in states that observe such a practice are in violation of

international legally-binding charters In Iran and Saudi Arabia laws usually treat a child the

same way as an adult criminal offender would be treated Article 10(3) of the International

Covenant on Civil and Political Rights emphasizes the need for demarcation between the

handling of children and that of adults in stating ―Juvenile offenders shall be segregated from

adults and be accorded treatment appropriate to their age and legal status142

The definition of a child in these Muslim states is unclear as adulthood is associated with

attainment of puberty which is a relative concept The Committee on the Rights of the Child in

January 2005 censured the Saudi government for its practice of imposing the death penalty on

juveniles terming it a serious violation of the fundamental rights The committee was deeply

alarmed over the discretionary power judges hold to treat juveniles as adults as was stated in

the committeelsquos report Iran too was strongly condemned following the release of an

international report highlighting the dire situation in Iran by the International for Human Rights 143

138

httpwwwfoxnewscomstory0293329798200html 139

httpnewsbbccouk2himiddle_east7130380stm 140

httpenwikipediaorgwikiCapital_punishmentIran 141

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 142

httpwww2ohchrorgenglishlawccprhtm 143

httpwwwfidhorgIMGpdfRapport_Iran_finalpdf

UNHRC 36 of 44

On August 19 2008 Iranian authorities executed Seyyed Reza Hejazi at Isfahan Central Prison

for his role in a murder committed in 2003 when he was 15 Hejazi was tried as an adult by

Branch 106 of the Isfahan General Court even if he did not qualify as one under international

stipulations and sentenced to death on November 14 2005144

In Saudi Arabia Mu`id bin

Husayn bin Abu al-Qasim bin `Ali Hakami was executed on July 10 2007 for a murder he

allegedly committed three years earlier when he was 13 years old145

The judges in these states

because of the implementation of the Sharialsquo law have a large amount of discretion with regard

to their rulings This discretion is often abused in the interrogation and judicial proceedings In

Pakistan authorities hanged Mutaber Khan in Peshawar Central Prison on June 13 2006 on

charges of murder of five people The fact that he was held in the juvenile wing of Peshawar

Central prison and the evidence presented by the accused confirming that his age was below 18

at the time of the killings were not taken into account during the trials and Mutaber was charged

as an adult in the case146

While the above does not cover exhaustively the practice of capitally punishing juveniles the

committee is expected to be well read on the matter The committee will be required to devise

ways to strictly apply the existing international law on the subject to curtail further deaths of

juveniles by states A series of recommendations on better implementation of international

covenants will be expected from the committee Delegates at UNHRC will also have to

familiarize themselves with the stipulations in the national laws of countries practicing juvenile

death penalties (Iran Saudi Arabia Pakistan Nigeria Sudan Yemen and UAE among others) to

discuss how these states are constitutionally able to bend international law and mete out the

illegal punishments

144

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 145

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 146

See FIDH and Human Rights Commission of Pakistan ―Slow march to the gallows and ―Condemned Prisoner

Executed Dawn Newspaper Karachi June 14 2005 httpwwwdawncom20060614nat16htm

UNHRC 37 of 44

Universality of Laws Incurring the Death Penalty

In countries which have not abolished the death penalty capital punishment may be imposed

only for the most serious crimes it being understood that their scope should not go beyond

intentional crimes with lethal or other extremely grave consequences

- Safeguards guaranteeing protection of the rights of those facing the death penalty147

Laws incurring the death penalty or capital crimes have certain uniformity the world over This

is of course barring states that are religiously affiliated and whose law systems are not secular

in nature The list of capital crimes for those states with non-secular legal systems is slightly

different The Human Rights Commission had decided that the imposition in the State party of

the death penalty for offences which cannot be characterized as the most serious including

apostasy committing a third homosexual act illicit sex embezzlement by officials and theft by

force are incompatible with Article 6 of the Covenant Economic offences including

embezzlement drug related offences political offences and robbery were also referred to148

The reason why looking into capital crimes and trying to garner a global impression of them is

important is that the death penalty can only realistically be abolished in a piecemeal way This

process will entail shortening the list of capital crimes The UN formally notes that ―in order

fully to guarantee the right to life provided for in article 3 of the Universal Declaration of

Human Rights the main objective to be pursued is that of progressively restricting the number of

offences for which capital punishment may be imposed with a view to the desirability of

abolishing this punishment in all countries149

The first established death penalty laws date as far back as the Eighteenth Century BC in the

Code of King Hammaurabi of Babylon which codified the death penalty for 25 different crimes

By the 1700s 222 crimes were punishable by death in Britain including stealing cutting down a

tree and robbing a rabbit warren In the 19th

century the death penalty was eliminated for over

100 of the 222 crimes punishable by death 150

In modern times the UN Special Rapporteur on

extrajudicial summary or arbitrary executions has stated that the death penalty should be

eliminated for economic crimes and drug-related offences and that the restrictions to its use

―exclude the possibility of death sentences for so-called victimless offences ndash including acts of

treason espionage and other vaguely defined acts usually described as crimes against the Statelsquo

or disloyaltylsquo and ―actions primarily related to prevailing moral values such as adultery and

prostitution as well as matters of sexual orientation151

147

httpwww2ohchrorgenglishlawpdfprotectionpdf 148

httpwwwunhchrchtbsdocnsf0bc310a747155dff88025655300537faeOpendocument 149

General Assembly resolution 2857 httpwwwunodcorgpdfcompendiumcompendium_2006_part_01_05pdf 150

httpdeathpenaltycurriculumorgstudentcabouthistoryhistoryPDF 151

httpswwwabofimedia24259report10pdf

UNHRC 38 of 44

Contrary to the made recommendations even political dissent warrants a death sentence in

several countries most notably in China and Iran In 2010 nearly 20 Kurdish people were

executed for political offences in Iran The country is known for keeping dissent especially from

the Kurds suppressed Most are executed on the grounds of moharebeh or enmity against God

Moreover challenging the power of the Ayatollah is also punishable by death These charges are

neither explicit nor in line with international guidelines over what crimes are punishable

capitally In Iran judges must handle such cases carefully as Iranian law provides for only one

punishment if an individual is found to be guilty of treason Libya too thwarts political dissent

with firm laws in place for punishing by death those who illegally form groups organizations or

associations against the state152

Saudi Arabia too is worth note for its vaguely phrased laws governing capital punishment

Intentional murder and crimes that spread ―mischief in the land (Fasad fil-ardh) merit death In

2010 the government announced that it had executed 26 people all by beheading Crimes that

―spread mischief include witchcraft and sorcery153

How is one convicted of witchcraft in the

21st century What can the international community do when regarding countries such as these

Treason arguably along with murder is the capital crime that has yet to be phased out by many

countries In some such as Brazil treason during warfare is the only crime for which a person

can be sentenced to death In the Gaza Strip under Hamas any sort of cooperation with Israeli

forces during military actions is also punishable by death In others including Algeria Bahrain

Iran and Malaysia treason is punishable by death in all circumstances The United States too has

federal laws governing treason under which traitors ―shall suffer death154

Child sex abuse is another crime that is widely held to merit the death penalty In Russia for

example according to the Russian Public Opinion Research Center an overwhelming majority

consider the death penalty to be an acceptable punishment especially in relation to molestation

155 In 2009 however Russias Constitutional Court effectively abolished the death penalty by

extending indefinitely a 13-year-old moratorium on capital punishment156

Indonesia has some of the strictest penalties for drug related crimes in the world Roughly half of

those on death row are incriminated with drug-related charges157

In 2008 though the most high

profile executions were of terrorists Three of those found responsible for the 2002 Bali

bombings were executed by shooting158

Generally speaking however a significant proportion of

152

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 153

httpwwwstategovgdrlrlshrrpt2010nea154472htm 154

httpdeathpenaltyproconorgviewresourcephpresourceID=1172 155

httpenrianrutrenddeath_penalty 156

httpwwwreuterscomarticle20091119idUSLJ330478 157

httpwwwnytimescom20080711worldasia11iht-indo114421132html 158

httpnewsbbccouk2hiasia-pacific7718246stm

UNHRC 39 of 44

the executions or death sentences recorded (in 2010) in China Egypt Indonesia Iran Laos

Libya Thailand United Arab Emirates and Yemen were for drug-related offences In December

2010 the amended Anti-Narcotics law came into force in Iran extending the scope of the death

penalty to include additional categories of illegal drugs (for example crystal meth) possession

of which became punishable by death Also around the same time the National Assembly of

Gambia voted to extend the scope of the death penalty by making the possession of more than

250g of heroin or cocaine an offence punishable by death159

Several states allow for the death penalty for crimes of blasphemy and other crimes for

nonviolent expression and association In Pakistan Aasia Bibi a Christian mother of five was

charged with blasphemy and sentenced to death after a trial largely believed to be unfair on 8

November 2010 She is currently on death row The country is also noted for its laws concerning

capital crimes The list includes 27 crimes most of which go beyond the notion of ―most serious

crimes as recommended by the International Covenant on Civil and Political Rights Extra-

marital sex and blasphemy are examples of some capital crimes in the country In December

2007 Pakistan voted against a United Nation General Assembly resolution for a moratorium on

the death penalty The year before however the nation amended its law on rape and adultery

charges which are no longer punishable by death160

As far back as 1989 recommendations have been made as to how to abolish the death penalty

Member states (of the UN) have been urged ―to publish for each category of offence for which

the death penalty is authorized and if possible on an annual basis information about the use of

the death penalty including the number of persons sentenced to death the number of executions

actually carried out the number of persons under sentence of death the number of death

sentences reversed or commuted on appeal and the number of instances in which clemency has

been granted and to include information on the extent to which the safeguards referred to above

are incorporated in national law161

The committee must inspect how far this recommendation

has been adopted and should seek to rectify the weaknesses in the system of gradually

abolishing the death penalty Can a target year be designated by which crimes meriting the death

penalty could be made universal How can countries with non-secular legal systems be brought

into the fold of international law

159

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 160

httpwwwfiacatorgenIMGpdfdppakistan-enpdf 161

httpgraduateinstitutechfacultyclaphamhrdocdocsecosocresolutiondeathpen1989html

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 19: UNHRCFINAL

UNHRC 15 of 44

local methods of suppression against unrepentant practitioners including the reported use of

torture54

Also worth noting is the fact that Chinalsquos judicial system has been alleged to be anything but

conducive to providing justice to those using the system Indeed it is a repressive tool used by

the government to silence dissent China with its vast land mass and various provinces and

municipalities must work hard to keep its Centre strong Scores of individuals who are more

obscure than human rights activists and such are imprisoned by the government while ironically

seeking justice It has long been the custom for people of the countryside to seek justice in

Beijing if they felt that their local authorities had treated them unfairly However modern China

has not taken kindly to this tradition Local authorities are evaluated on the basis of the number

of complaints the Centre receives about them Thus they have a vested interest in thwarting the

reports of any complaints about them to Beijing Those who complain are whisked off to black

jails where ―detainees are denied access to legal counsel and in most cases contact with family

and friends They ―are kept under constant surveillance and subject to often arbitrary physical

and psychological abuse55

Chinalsquos record with regard to political prisoners and its tradition of suppressing dissent are

exacerbated by the sheer scale on which dissent is thwarted The aspect of potential torture of

prisoners further complicates the issue It is troubling that the issue of Chinese political prisoners

only gained international prominence with the case of Mr Liu Xiaobo It is not the only nation in

the world to adopt such strict policies in order to further its own ideology and the committee will

do well to ruminate upon how this tradition can be discontinued so as to allow people their

essential political freedoms

The Infringement of Rights in the Conflict with Tibet

Despite the furor that has been inconsistently directed towards its human rights record China

continues to impose tightening restrictions on rights of expression association and assembly

The Chinese government carries on devising social and economic changes that retain its firm

authority over its citizens which in turn enables a host of human rights violations In the context

of Tibet China has failed to address the grievances of the people there who have been made

victims of social discrimination and have unequal access to opportunities Scores of Tibetans are

marginalized and detained for their religious inclinations which are further suppressed by the

imposition of intense patriotic educationlsquo campaigns whereby socialism is furthered and all sorts

of religious or individualistic tendencies are thwarted

54

Ibid Page 5 55

httpwwwhrworgreports20091112alleyway-hell-0 Page 4

UNHRC 16 of 44

Despite its totalitarian approach China refuses to accept responsibility for the issue Instead it

blames westernlsquo forces for trying to instigate separatism56

The indifference on the part of

China with particular regard to Tibet is apparent with Chinese authoritieslsquo continuous rejection

of ―inconvenient requests by UN human rights experts for visits to the Tibet Autonomous

Region57

During 1912 and 1951 Tibet underwent a period of de facto independence58

While it was still

territorially a part of China it enjoyed relative freedom in its political discourse Tibetan

autonomy was confined within the context of Chinese suzerainty and should not be interpreted

as unrestrained political independence Since 1951 however the Chinese government has taken

steps to ensure its absolute and undeniable dominance over Tibet from which emanates the strife

under discussion Gross violations of human rights have taken place in China administered by

officials with the purpose of cultivating consent with regard to its control over the region

Suppression has led to the inevitable extensive discontent in Tibet a fury which was unleashed

in 2008 The Tibetan unrest of 2008 was a series of protests and demonstrations - not merely in

the Tibet Autonomous Region but elsewhere as well - that later transformed into rioting burning

looting and even killing59

The rioters set fire to state vehicles and clashed violently with the

police installed in the region The crackdown of Chinese authorities in response to the riots was

severe resulting in deaths on both sides and mass imprisonment by state authorities The degree

to which human rights were violated and abused during this crackdown cannot be overstated

The Chinese also revoked the freedom of sharing of information and imposed a ban on the entry

of media officials in the region to contain

information about the unrest and play down

protests60

A Tibetan Government in Exile has existed in India

since 1959 established by the 14th

Dalai Lama61

This Central Tibetan Administration considers the

issue as an illegitimate military occupation by the

Chinese state The Administration works with the

agendas of restoration of freedom in Tibet and rehabilitation of Tibetan refugees

Historical facts refute such a fallacy however The simple reality that the installation of the 14th Dalai Lama

needed the approval of the national government is sufficient proof that Tibet did not possess any independent power

during that period ndash (httpwwwchinaorgcne-whitetibet9-2htm)

56

httpwwwunhcrorgrefworldcountryAMNESTYCHN49b8dfc11a0html 57

Ibid 58

Grunfeld A Tom Reassessing Tibet Policy 2000 59

httpwwwnytimescom20080316worldasia16iht-tibet111134870html 60

Watts Jonathan Branigan Tania (March 18 2008) Tension rises as armed police mass in capital The

Guardian (London) Retrieved November 1 2011 61

httpwwwtibetnetenindexphpid=14

UNHRC 17 of 44

The censured freedom of expression is one of the multiple infringements on rights that are

imposed by China on Tibet Tibetans are denied the basic right to articulate their views through

political discourse Human rights activists advocate the freedom of speech for Tibetans under the

existing and future political arrangements Religious and political figures in Tibet are placed

under house arrest limiting their freedom of movement (in contradiction to article 13 of the

Universal Declaration of Human Rights)62

As was highlighted during the unrest in 2008 China

has often stripped the Tibetan population of its fundamental rights to associate and assemble In

2000 nine Tibetan prisoners in Kandze were charged for participating in a peaceful protest to

five-year prison terms in October 1999 (which were later increased to ten-year terms)63

This example leads us to another crop of abuse conducted overtly by Chinese authorities

arbitrary detention Article 9 of the Universal Declaration of Human Rights reads ―No one shall

be subjected to arbitrary arrest detention or exile64

Chinese law however permits authorities

to detain persons without formally arresting or charging them and persons may be sentenced

administratively to up to 3 years in reeducation-through-labor camps and other similar facilities

without a trial

Chinese authorities have been unresponsive to concerns expressed by the United Nations

Working Group on Arbitrary Detention No counter-explanation was given either over the case

of three Tibetans who had their sentences extended for staging a peaceful political protest during

the Working Groups visit to Drapchi in October 1997 despite international pressure65

Infinite

examples of arbitrary arrests and detentions exist in China international authorities have called

on China to cease this practice and release such detainees immediately absent evidence that they

have engaged in criminal acts No state can or should be able to hold anyone for engaging in

peaceful political activity All humans

should be granted internationally recognized

due-process protections which includes the

right to be informed of the charges leveled

against them66

The question of whether

these detainees are given an impartial trial if

one at all is not even raised

In addition to the arrests carried out in

violation of international law there are

grave evidences of abuses during detention

62

httpwwwhrworgnews20000612human-rights-violations-tibet 63

Ibid 64

httpwwwunorgendocumentsudhr 65

httpwwwhrworgnews20000612human-rights-violations-tibet 66

httpwwwhrworgnews20000612human-rights-violations-tibet

UNHRC 18 of 44

Incidences of beatings at time of arrest and torture (including the administration of electric

shocks and deprivation of food and medical treatment)67

during custody are widely reported

These are not isolated cases rather the product of a holistic policy of dealing with political

dissidents In one notable incident in May 1998 political prisoners in Drapchi staged major

protests to coincide with a visit from a European Union delegation The protests were non-

violent but the authorities reaction was severe several protestors were shot at and one monk

Lobsang Gelek subsequently died68

The Convention Against Torture (CAT ratified by China in 1988) requires the state to prevent

torture and punish those in violation of the law China has not amended its own laws to comply

with even the first article of CAT69

Such practices explicitly stand in contempt of Article 5 of

the Universal Declaration of Rights which censures the use of torture or cruel treatment as

punishment Dr Manfred Nowak the UN Special Rapporteur on Torture stated that ―he was

struck by the strictness of prison discipline and a palpable level of fear and self-censorship when

talking to detainees following his brief assessment of Chinese and Tibetan prisons in 200570

The committee will be looked upon to review ways in which the situation can be monitored more

carefully and what responses if any can be cultivated to impede similar future actions by

China

The continued violations of religious freedom and implementation of policies designed to

diminish religious practices by the State to serve its political needs is a cause of concern Again

referring to the Universal Declaration of Human Rights Article 18 reads ―Everyone has the right

to freedom ofhellipreligion this right includes freedomhellipto manifest his religion or belief in

teaching practice worship and observance71

The policies implemented by Chinese authorities

through use of coercion violent repression and imprisonment impinge upon the freedom of

Tibetans to practice their religion freely China has also strictly enforced re-education programs

for dissident factors within the state The program is aimed at ―combating separatism protecting

stability and promoting development and is intended to reform the political ideology of people

who refuse to accept state control of what they perceive as vital aspects of their religious lives

and beliefs The committee will be expected to deliberate upon the protection of religious

freedom and practices of individuals as well as the validity of these re-education programs in

light of human rights and liberties

Tibet is not the only region where political tensions surrounding autonomy run high The

Kosovo-Serbian conflict is pertinent to recall The Republic of Kosovo declared itself to be an

independent entity on February 17 2008 As of 11 October 2011 85 UN states recognize the

independence of Kosovo However Serbia maintains that Kosovo is a UN governed entity under

67

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 68

httpwwwfreetibetorgabouttorture 69

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 70

Ibid 71

httpwwwunorgendocumentsudhr

UNHRC 19 of 44

its sovereignty Russia and China are among those who do not recognize the Republic while the

USA UK and France have recognized Kosovolsquos declaration of independence This highlights the

rift between the United Nations Security Council over the issue The case of Tibet is all the more

important in light of the fact that many such pockets exist in the world struggling for self-

determination

Media Links

httpwwwfreetibetorgnewsmedia2008-protests-summary

httpwwwguardiancoukworldgallery2008mar19tibetchinapicture=333178281ampindex=7

Chinarsquos Violation of Ethnic Minority Rights

One of the greatest blemishes on Chinalsquos human rights record is in the area of ethnic minorities

and the extent to which China protects ethnic minority rights On paper Chinalsquos policies are

based on ethnic equality and regional ethnic autonomy Ethnic minorities are supposed to be

benefitting from preferential policies in the political economic cultural and educational spheres

However the ground realities are infinitely different Questions have been raised over the extent

to which the government fairly provides services to these minorities and allocates resources

equally to them The Chinese government is seen to largely prefer its Han majority The

minorities claim they are exploited for their resources and in turn not even provided with the

same level of social services as the Han people China is an atheistic government and the fact

that many ethnicities garner their identity in major part from their religious affiliation leads to a

precarious situation The Mongols Tibetans and Uighurs all come to mind when discussing the

issue of China and ethnic minority rights

―Everyone is entitled to all the rights and freedoms set forth in this Declaration without

distinction of any kind such as race colour sex language religion political or other opinion

national or social origin property birth or other status Furthermore no distinction shall be

made on the basis of the political jurisdictional or international status of the country or

territory to which a person belongs whether it be independent trust non-self-governing or

under any other limitation of sovereignty

- Article 2 Universal Declaration of Human Rights

The International Convention on the Elimination of Racial Discrimination defines racial

discrimination as any distinction exclusion restriction or preference based on race colour

descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the

recognition enjoyment or exercise on an equal footing of human rights and fundamental

UNHRC 20 of 44

freedoms in the political economic social cultural or any other field of public life72

It is due to

this that the international community has adopted the norm of subsuming ethnicity under the

terminology of race

―The Peoples Republic of China is a united multi-ethnic country So far 56 ethnic groups have

been identified and recognized by the central government The population of various ethnic

groups differs greatly While the Han ethnic group has the largest population and that of the

other 55 ethnic groups is relatively small so they are customarily referred to as ethnic

minoritieslsquo According to the fifth national census conducted in 2000 the population of all the

55 ethnic minority groups totaled 10449 million accounting for 841 percent of the total

population of China73

Chinas official 55 minorities are located primarily in the south west

and north of China Only Tibet and Xinjiang have a majority population of official minorities

while all other provinces municipalities and regions of China have a Han majority

One of Chinalsquos autonomous regions is the Xinjiang Uighur Autonomous Region (XUAR)

located in western China The area is vast accounting for one sixth of Chinalsquos land and houses

around 13 major ethnicities including the Uighurs who are a predominantly Muslim people with

origins in Central Asia The Uighurs have had strained ties with the state and have often resisted

Chinese authority74

In turn the Chinese government has reacted sometimes violently against

restless factions in the region One of the most passive aggressive forms of response on the part

of the Peoplelsquos Republic has been the encouragement of the migration of the Han people ndash

Chinalsquos ethnic majority ndash to the XUAR75

Around 90 of Xinjiangs population comprised of

Uighurs in 1949 now it is estimated that Uighurs make up only about 45 of the population76

The policies in Xinjiang are said to be designed to ―promote economic development not

demographic change In reality though the influx of migrants has amplified Uighur discontent

as Han and Uighurs compete over limited jobs and natural resources77

The United Stateslsquo

Congressional-Executive Commission on China reported that in 2006 the XPCC (Xinjiang

Production and Construction Core) reserved approximately 800 of 840 civil servant job openings

for Han Chinese78

One of the causes of the Han monopoly in the employment sector is the

linguistic advantage afforded to them and perpetuated by the education system As part of its

efforts to implicitly impose a unified culture the language policy was altered by the state with

an increased focus on use of Mandarin in schools at the expense of the local languages

Methods of education special to the ethnic peoples of the XUAR including the Muslim Uighurs

are suppressed For example a campaign by the PRC in 2001 targeted religious teachers and

72

httpwww2ohchrorgenglishlawcerdhtm 73

httpenglishgovcnofficial2005-0728content_18127htm 74

httpwwwcfrorgchinaeast-turkestan-islamic-movement-etimp9179 75

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p8 76

httpnewsbbccouk2hiasia-pacific3330803stm 77

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p4 78

httpwwwcolumbiaeducunewsclips20080801UighursTWPOSTpdf

UNHRC 21 of 44

endeavored to sever ties between mosques and groups involved in allegedly ―separatist

activities Around 8000 imams were required to undergo ―political reeducation in this regard

and become ―patriotic religious personalities Ethnic minorities are educated in ways that do not

allow them to learn their own languages or practice their own religion In 2001 for example a

Muslim girl was expelled from school for praying 79

Moreover in an attempt to further its socialist agenda and bind ethnic minorities together

minority cultural activities are often hindered In its place nationalistic values are given a

premium and integrated into society so as to tie the entire country in a unified Chinese foldlsquo

Resultantly an asymmetry with regards to the provision of services and protection of cultural

identity can be found in almost every ethnic minority region in the country The repression

against minorities has wider implications on the human rights situation for all This leads to

creation of a vindictive attitude among the minorities not only against the government but also

the Han majority

In July 2009 this attitude manifested itself in

the form of severe riots between the Han and

Uighur communities in Xinjianglsquos capital city

Urumqi Ethnic tensions elevated to the point

that police involvement was made necessary

According to Chinese state media at least 150

people were killed and more than 800 were

injured The riots were reportedly sparked by a

Uighur protest over the ethnically motivated

killing of two Uighur workers in the southern

province of Guangdong

On the topic of allegations of separatism it is interesting to note that post 911 it has been noted

that the Chinese government has used concerns about terrorism as a method for suppressing

ethnic activity This is possible through the characterization of certain ethnicities as having

fundamental leanings The Muslim Uighurs fell under fire for this very reason after the

September 2001 attacks

One of the ways that the Chinese government with its Han leanings has asserted its presence in

the region is through the smokescreen of the XPCC The Peoplelsquos Liberation Army and the

XPCC are present in the region per the government to ―consolidate border defense accelerate

79

wwwminorityrightsorgdownloadphpid=29 Page 30

UNHRC 22 of 44

Xinjianglsquos development and reduce the economic burden on local governments and the local

people of all ethnic groups80

The heavy militarization of ethnic minority

regions also enables the Chinese government

to quickly respond to skirmishes between the

minorities and the Han For example clashes

between the Uighurs and the Han in the

XUAR are quickly clamped down upon The

response by Chinese authorities always

focuses on the minority groups in the region

The typical response includes a period of

strike hardlsquo security measures during which the minorities are subjected to police patrols of

crowded areas identity checks street searches increased criminal investigations and accelerated

trials The measures also include mandatory political indoctrination classes for the Uighur

population Swift Chinese response to ethnic dissidence precludes the possibility of trying

protestersrioters under due process This phenomenon also contributes to the controversy of

China and its policy of arbitrary imprisonment

Essential to any countrylsquos social progress is the protection and provision of the basic rights to all

its citizens For a country like China which has a significant standing in the international

community the degree to which human rights are upheld comes under added scrutiny Minorities

need to be guaranteed provision of not only fundamental rights but additional ones that grant

them equal opportunities

Recent Developments

3 November 2010 UN Secretary General pushes China on human rights

Ban Ki-moon the United Nations secretary general has called on China to respect human rights

after critics accused him of dodging the issue on a trip to Beijing The UN secretary general met

Hu Jintao the Chinese president but failed to challenge Mr Hu on the imprisonment of Liu

Xiaobo the democracy activist who was awarded this years Nobel Peace prize and raise the

issue of human rights81

80

httpwwwchinaorgcne-white200305269htm 81

httpwwwtelegraphcouknewsworldnewsasiachina8107148UN-Secretary-General-pushes-China-on-human-

rightshtml

UNHRC 23 of 44

5 November 2011 Yeqing Ji from Shanghai China will most likely not be able to have children

after she said two forced abortions physically impaired her uterus82

8 September 2011 The Chinese government has renewed Googlelsquos license to allow it to

continue operating its local website in the country83

13 November 2011 Seven months ago

Chinese police detained the countrylsquos most prominent artist Ai Weiwei at the airport and drove

him to a hidden location It was the beginning of what is to be a two-and-a-half month nightmare

for the architect and sculptor who is also a former darling of the Communist Party who later

turned into an outspoken government critic Ai was held on vague charges of economic crimes

was kept in isolation and subjected to Kafka-esque interrogations84

April 19 2011 Amnesty International a 21-year-old monk Phuntsog set himself on fire in an

apparent anti-government protest in March 2011 Instead of putting out the flames Chinese

police beat the young monk creating huge resentment in the monastery85

At least 11 ethnic

Tibetans have been detained for protesting against the event and against government policies

They are at risk of torture and other ill-treatment86

29 May 2011 300 Tibetan monks detained in Kirti monastery by Chinese security forces87

15 September 2011 Chinese Uighurs economic fears

Amid ethnic tensions minority regards modernization plans in Xinjiang as favoring Han Chinese

migrants88

20 November 2011 Another of Chinalsquos minorities the Hui Muslims in Ningxia do not feel

stigmatized

―There is an important reason why Hui and Han Chinese get along with each other Unlike

Muslims of the other ethnic minorities like Uighur Kazakh Kyrgyz and Tajik the Hui Muslims

speak Mandarin just like the Hans89

82

httpabcnewsgocomBusinesswoman-china-forced-abortions-leaves-unable-

childrenstoryid=14880884Tsia7LIk6so 83

httpwwwbbccouknewsbusiness-14832392 84

httpwwwthedailybeastcomnewsweek20111113ai-weiwei-speaks-out-on-his-detentionhtml 85

httphradvorgaggregatorsources10 86

httpwwwamnestyorgenlibraryassetASA170212011end75f7611-be66-4d5a-9391-

c80c43501d56asa170212011enhtml 87

httphumanrightshouseorgArticles16503html 88

httpwwwaljazeeracomvideoasia20110920119158016969449html 89

httpwwwtodayszamancomnews-263322-chinas-hui-muslims-do-not-feel-stigmatizedhtml

UNHRC 24 of 44

Conclusion

The United Nations Human Rights Council at LUMUN 2012 will be looked upon to provide a

framework for the resolution of these issues in a universal context The scope of the issues

should be expanded and applied to countries other than China The committee will have to make

recommendations which have universal application and resolve all aspects of the issue

comprehensively For any queries related to the study guide please do contact either (or both)

the committee directors at the given addresses

UNHRC 25 of 44

Topic Area B Abolishing the Death Penalty

Introduction to the Topic Area

The death penalty is formally defined as the execution of an offender sentenced to death after

conviction by a court of law of a criminal offenselsquo90

The concept of a capital crime is subjective

and states have made use of this practice in response to multiple forms of crime The use of the

death penalty has produced much controversy with regard to its apparent violation of

fundamental human rights as delineated in the Universal Declaration of Human Rights and

subsequent human rights charters and treaties It is asserted that the use of death penalty is in

contravention to the peopleslsquo right to life promised to every individual under Article 3 of the

Declaration91

Moreover Article 2 of the Charter of Fundamental Rights of the European Union

lucidly bars the imposition of death penalty as a form of punishment92

Arguments against the

use of death penalty are also made on the grounds of inhumane methods which are employed to

see out the process Historically multiple methods have been used which include death by

hanging severing of the head lethal injection shooting and electrocution93

94

As a response states have made keen efforts to abolish

the death penalty particularly in the last two decades as

can be interpreted from the graph on the right which

represents the number of states that have abolished the

death penalty Countries belonging to the European

region with the exclusion of Russia and Belarus have

sought to revoke the use of the practice The death

penalty is most commonly seen to be a formal practice

in most of the developing countries The trend is

apparent in Latin America Africa and Asia

96 countries have formally abandoned the use of death penalty 58 countries allow the use95

Other states have abolished the penalty in practice but the laws remain in place for the

imposition of the penalty as a response to certain crimes The imposition of the death penalty has

90

httpwwwbritannicacomEBcheckedtopic93902capital-punishment 91

httpwwwunorgendocumentsudhr 92

httpwwweuroparleuropaeucharterpdftext_enpdf 93

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffle

re-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 94

httpwwwdeathpenaltyinfoorgmethods-execution 95

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf

Figure 1 (Drag to enlarge)

UNHRC 26 of 44

seen a decline over the recent years with a fall in the number of executions that take place

annually It would however be incorrect to assume that the practice is not prevalent or widely in

effect Amnesty International reported that at least 2024 new death sentences were imposed in 67

countries in 2010 Moreover there were at least 17833 people sentenced to death worldwide at

the end of 201096

Again these are minimum figures which are the safest that can be inferred

from the given research There were 527 known executions carried out in 2010 globally97

This

figure however does not include the number of executions that took place in China where

analysts believe that more than a thousand people were put to death in the past year

The statistics represent the number of people executed through capital punishment One way to

formally define capital punishment is to regard it as the state sanctioned killing of an individual

through a judicial process as a punishment for a crime (defined as a capital crime by the state)98

Capital punishment is the most obvious and prevalent manifestation of the death penalty It is

often perceived as a statelsquos right in order to preserve law and order against any individual who

engages in serious crimes that threaten other individuals or the state Those who advocate against

the use of capital punishment label it as a symptom of a culture of violence not a solution to

itlsquo99

The controversy surrounding the topic is based on the legal ethical and moral acceptability

of the statelsquos right to an individuallsquos life The debate entails several social and economic factors

some of which will be reviewed in closer detail in the relevant section of this guide

One of the most striking aspects related to the issue is the imposition of the capital punishment

on juveniles The sentencing of juveniles to death is in clear breach of international law The

morality and validity of such a practice is often called into question and has been put under

relentless scrutiny despite all of which the practice is still carried out in a number of countries

Historically the United States China and Iran have the worst records relating to juvenile death

sentences100

The study guide also includes a separate section for the case of juveniles in which

the legal and social aspects of the problems are detailed

As stated states have made use of the death penalty to punish crimes of varying natures The use

of the death penalty is reserved for only the most seriouslsquo crimes as put forth in international

law101

The notion of a capital crime however is a subjective one states that have doled out

death sentences have defined it differently In certain countries the death penalty is only used to

charge criminals accused of war crimes In other countries the penalty is reserved for crimes like

96

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf 97

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010 98

httpusersrcncommwooddeathpenhtml 99

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 100

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 101

httpwwwunorgdocumentsecosocdocs1995e1995-78htm

UNHRC 27 of 44

murder rape or even robbery States also use the death penalty against individuals who are guilty

of treason The issue however is that many states practicing the death penalty impose the

punishment even when the crimes do not meet the threshold for the aforementioned most

seriouslsquo crimes The ability of states to define what constitutes as a capital crime has led to states

abusing their powers as has been observed in the sentences ordained by military courts

Moreover even the radicals who make the argument of the punishment fitting the crime agree

that in many instances individuals have been executed for softlsquo crimes crimes that were

certainly not tantamount to charges of murder or crimes against humanity The issue of apparent

violations of human rights is further exacerbated in these instances The study guide will discuss

the universal crimes that have resulted in the awarding of the death penalty and examine the

issue further The committee will be expected to discuss the feasibility of drawing up an

international definition of crimes which in isolated instances perhaps may be appropriate for a

sentence like the death penalty

Another pertinent aspect surrounding the debate is that of extrajudicial killings The execution of

a person by state authorities without the authority of a judicial proceeding is termed as an

extrajudicial killing Many states have used extrajudicial killings to establish their authority and

order without having to wade through the legal process By doing so they have deprived scores

of people of their fundamental right to free and fair trials Governments have also employed this

tactic to exercise political aggression and to suppress dissent A particular point of concern is the

fact that some states have made use of these killings even when they have officially revoked the

imposition of the death penalty Extrajudicial killings are carried out persistently in many

countries ndash the list includes countries like Iran Iraq Israel Philippines102

Most recently the

killing of Anwar al-Awlaki and Samir Khan in Yemen by a sanctioned National Security Council

move by the USA was an example of states embarking on such paths to eliminate threats to

national securitylsquo103

102

Multiple citations for each country can be found in the second paragraph article titled Extrajudicial killinglsquo on

Wikipedia 103

httpwwwtelegraphcouknewsworldnewsbarackobama7564581Barack-Obama-orders-killing-of-US-cleric-

Anwar-al-Awlakihtml

UNHRC 28 of 44

Wrongful convictions lead many to believe in the inherent incapacity of the death penalty to

serve justice On September 21 2011 US citizen Troy Davis was executed in Georgia after

which seven of the nine witnesses who testified against him in the case that led to his execution

recounted or retracted their evidences A petition with nearly one million signatures was put

forth to reconsider his case it was rejected On the same day a 17 year old boy was publicly

hanged in Iran for killing a popular athlete his justification based on self-defense was ignored

Also on the same day a Pakistani national was executed in China on grounds of drug trafficking

an offence that does not often result in capital punishment The need for the resolution of this

issue is pressing and the committee needs to deal with all aspects of the problem in a

comprehensive and enduring manner104

Capital Punishment

In 2010 23 countries implemented capital punishment A total of 527 executions (plus the 1000+

carried out in China alone) were known to have taken place with Iran Yemen USA and North

Korea meting out a significant number of sentences105

The figure is lower than the records

computed for years past There are more states which are now abolitionist either in law or in

practice with regard to the imposition of the punishment Gabon was officially the last country

to rescind the practice while bills calling for an end to capital punishment have been presented

to parliaments in Lebanon Mali Mongolia and South Korea106

Renewed efforts are

104

httpwwwamnestyorgennews-and-updatesus-executes-death-row-prisoner-troy-davis-2011-09-21 105

httpwwwguardiancouknewsdatablog2011mar29death-penalty-countries-world 106

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010

UNHRC 29 of 44

simultaneously being made on the international front to implement laws against capital

punishment A third resolution establishing a moratorium on the use of death penalty passed the

UN General Assembly on December 21 2010107

Despite the increasing momentum towards an eventual elimination of the practice the number of

executions taking place annually is a cause of major concern Advocates of the death penalty

assert that the practice is an effective means of deterring crime in society Public executions are

often held in Iran Afghanistan and Palestine for example to demonstrate the fate awaiting

those who commit similar crimes108

Arguments are made on the grounds of justice that it is

proper and fair to take an eye for an eye and a life for a life and that some individuals deserve

it for the crimes they commit

Those opposing the practice question the morality of an action sanctioned by the state which

endorses deprivation of the right to life a fundamental human right under the Universal

Declaration of Human Rights109

There are inescapable flaws within legal systems which are

aggravated by discrimination prosecutorial misconduct and inadequate legal representation

Moreover the risk of executing the innocent can never be eliminated110

An alternative is

presented in the form of imprisonment for life without parole which results in a parallel debate

is imprisonment for life a viable surrogate to the practice of death penalty A thread from this

debate also relates to the economic feasibility of carrying out a death sentence as opposed to the

feasibility of imprisonment for life

Deterrence

Capital punishment is often propagated as an adequate approach in the deterrence and prevention

of crime The logic is that if murderers are sentenced to death potential murderers will think

twice before killing for fear of losing their own life The deterrence theory presumes that the

once the punishment for a certain crime is established the criminal by committing the crime

voluntarily assumes the risk of receiving the prescribed punishment for the crime Only when the

most severe punishment has been set will there be a possibility of an individual evaluating their

actions in light of the consequences111

107

httpwwwundemocracycomA-RES-62-149pdf 108

httpwwwamnestyorgennews-and-updatessharp-rise-public-executions-iran-executes-first-juvenile-

offenders-2011-2011-04-27 109

wwwunorgendocumentsudhr 110

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 111

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 30 of 44

The death penalty it is asserted ensures that convicted criminals do not offend again moreover

it is deemed to be a just penalty for atrocious crimes It is further alleged that many criminals

who are set free even after lengthy sentences regress and go on to commit heinous crimes

Therefore there should never be the possibility of a release clause112

The deterrence theory is modeled on the grounds of human psychology logic and rationale As a

professor of jurisprudence Ernest van den Haag PhD wrote ―Common sense lately bolstered

by statistics tells us that the death penalty will deter murder if anything can People fear nothing

more than death Therefore nothing will deter a criminal more than the fear of death These

statements were further validated by a US Supreme Court Justice who said on record that

Prima facie the penalty of death is likely to have a stronger effect as a deterrent to normal

human beings than any other form of punishmentlsquo113

Numerous studies have been conducted on

the subject with varying results One of the most established studies was conducted in USA

using a panel data set of over 3000 counties from 1977 to 1996 which concluded that on

average one death sentence resulted in 18 fewer murders114

Delegates will be expected to be

familiar with other similar studies

These studies are commonly refuted as not crediblelsquo by opponents of the capital punishment

who also deny the correlation between crime and death penalty as a fabricated relationship which

cannot be empirically established115116

A study of the relationship between capital punishment

and the incidence of murder was conducted for the UN in 1988 and updated in 2002 The

conclusion was ―The investigation has not provided scientific proof that executions have more

deterrent effect than life imprisonment It is unlikely that such evidence will ever come

Deterrence hypothesis finds no support in the survey117

Another counter-argument asserts that crime is still a persistent feature of the societies that

continue to award the death penalty while many of the abolitionist states enjoy low crime rates

This can be evidenced by comparing the crime rate in USA or Pakistan with that of Canada or

some European state In Canada for example the homicide rate per 100000 fell from a peak of

309 in 1975 the year before the abolition of the death penalty for murder to 241 in 1980 and

in 2003 27 years after abolition the homicide rate was 173 per 100000 44 per cent lower than

in 1975118

112

httpwwwdeathpenaltyinfoorgfacts-about-deterrence-and-death-penalty 113

httpdeathpenaltyproconorgviewresourcephpresourceID=002000 114

httpdeathpenaltyproconorgsourcefilesThe20Deterrent20Effect20of20Capital20Punishmentpdf ndash

Delegates should carefully examine certain parts of this document to establish the credibility of the assertions made

They should also invest in trying to locate studies that refute the assertions made in this and similar studies 115

httpwwwdeathpenaltyinfoorglaw-enforcement-views-deterrencelawenforcement 116

httpwwwdeathpenaltyinfoorgDonohueDeterpdf 117

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 118

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml

UNHRC 31 of 44

The lack of evidence on the production of a unique deterrent effect points to the danger of

relying on the deterrence hypothesis as a basis for public policy on the death penalty

Retribution amp Morality

An important terminology that delegates need to familiarize themselves with is that of

―retributivism119

It is defined as ―a policy of criminal justice that sponsors the punishment of

criminals in retribution for the harm they have inflicted120

Criminals deserve to be punished in

proportion to the gravity of their crime regardless of whether the victim or anyone else desires

it we may all deeply regret having to carry out the punishment but consider it warrantedlsquo is

what many say in defense of the theory121

The need for the establishment of a visibly just state arises from the potential risks of not having

one As has been visible in many developing countries with shaky legal systems when criminals

are not adequately punished for their unlawful behavior the public takes the law into its own

hands and deals out vigilante justice It is asserted that retributivism is essential for a functioning

society where individuals respect the supremacy of law

The concept of retribution in society is also grounded in religious beliefs The concept of an eye

for an eye has been a part of all three Abrahamic traditions However in the modern world it is

Islamic nations that still retain the practice based on these grounds Similar traditions can be

found in Hinduism Christianity and Buddhism as well as other religions in different parts of the

world In many non-secular countries the constitutions and state laws are derived from religious

doctrines

Opponents dismiss this aspect of the argument as being emotionally charged with little rational

logic to support the contention They claim that the establishment of capital punishment gives

birth to a culture of violence endorsed by the state It perpetuates the cycle of aggression and

brutality something which the state should be actively inhibiting not endorsing

Wrongful Convictions

The death penalty carries with it the danger of wrongfully convicting an innocent person for

crimes he did not commit There is the potential for capital punishment to evolve into sheer

miscarriage of justice as in certain circumstances states are often seen to rush the trials and

convict the accused hastily This practice takes foremost apparently in military courts often in

119

Cavadino M amp Dignan J (1997) The Penal System An Introduction (2nd ed) p 39 London Sage 120

httpdictionaryreferencecombrowseretributivism 121

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 32 of 44

the developing or lesser-developed countries where the system of law is not properly established

It is not however exclusive to these countries Examples can be drawn from countries like

Philippines Thailand Iran and Palestine to name just a few where executions are carried out at

alarming pace removing the possibility of reviews

On 15 August 2004 Atefah Rajabi Sahaaleh was hanged in a public square in the Iranian city of

Neka Her death sentence was imposed for adultery and crimes against chastity122123

Atefah

was executed a week after the trial was run Following the execution the Judge for the case was

arrested for investigation by the Intelligence Ministry The media reported that in addition to the

confession of his rape of Atefeh Judge Rezai who served as judge jury and executioner also

confessed to torturing her during interrogations to extract names of others she had relations with

No transcripts from court proceedings were recorded The State alleged that Atefah was 22 at the

time of her execution A witness later claimed The judge just looked at her body because of

the developed physique and declared her as 22124

ndash her birth certificate revealed she was born

in 1988 Furthermore Atefah did not have access to a proper defense where she could contest

charges leveled against her This is one example of many such cases of miscarriage of justice

Something that recurs in these cases is the failure of the police or prosecuting authorities to

prevent the use of unreliable witnesses the misuse of evidence or confessions and the provision

of inadequate defense representation The advent of DNA profiling and the use of it as positive

evidence in criminal cases has resulted in the exoneration of multiple death row inmates on

grounds of forensic evidence or lack thereof Since 1973 138 people have been released from

death row in the United States after it was proven that they were innocent125

In 2009 Paul

House was cleared of murder and exonerated in Tennessee USA after having served 22 years

on death row His innocence was proclaimed in light of substantial additional DNA testing and

further investigationlsquo 126

Amnesty International has noted examples of wrongful convictions from elsewhere as well

including Jamaica Japan China Nigeria and Tanzania127

Paul G Cassell a former law clerk to

the Chief Justice of USA stated the mistaken release of guilty murderers should be of far greater

concern than the speculative and heretofore nonexistent risk of the mistaken execution of an

innocent personlsquo highlighting the case made by those who advocate the death penalty even in

light of wrongful convictions128

122

httpwwwcosmolearningcomdocumentariesexecution-of-a-teenage-girl1 123

httpnewsbbccouk2hi5217424stm 124

httpnewsbbccouk2hi5217424stm 125

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 126

httparticlescnncom2009-05-13justicetennesseeexonerated_1_death-row-inmate-dna-evidence-house-

arrest_s=PMCRIME 127

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 128

httpdeathpenaltycurriculumorgstudentcaboutargumentstestimony3bhtm

UNHRC 33 of 44

Alternative to Death Penalty

All abolitionist states have reverted to the practice of sentencing criminals to life imprisonment

(some without parole) which is also termed as death by incarceration Widely regarded as a more

humane course of action life imprisonment is also alleged to be a more economical practice

While ensuring public safety by keeping criminals away from society this system also saves the

lives of innocent people who have been falsely or wrongfully convicted The setup inhibits and

curbs the cycle of violence while retaining the deterrence factor it is strongly asserted

Advocates for the death penalty are averse towards life imprisonment for a number of reasons

They cite the unreliability of the system as one of the flaws which impedes the possibility of

such a sentence being successful A certain James Moore serves as a valid example in this case

In 1962 James Moore raped and strangled 14-year-old Pamela Moss The victimlsquos parents opted

out of capital punishment for Moore and he was instead sentenced to life in prison without

parole Twenty years later a change in sentencing laws in 1982 renders James Moore eligible for

parole every two years129130

Kenneth McDuff is another example McDuff was convicted and sentenced to life imprisonment

Years later due to the issue of overcrowding in prisons McDuff was released following which

he killed eight more people McDufflsquos example is of an individual from a developed country

with an established legal system in place131

Overcrowding is a feature of prisons in developing

or lesser developed countries In many such states criminals have also been known to easily

break out from penitentiaries

The economic aspect of the debate is murky at best There is a lack of empirical data on the

subject which is why the arguments of both these sides cannot be settled beyond doubt

Advocates of capital punishment insist that the overall costs of the practice are far lesser than the

costs of housing an inmate for a lifetime132

They also suggest that the life imprisonment allows

criminals to conceive new habeas corpus petitions which on legal grounds cannot be rejected

automatically resulting in more trials

On the other hand substantial arguments are made which stress that the cost of legal proceedings

in capital cases is in truth more than that of other cases States and nations spend a significant

portion of the taxpayerlsquos money in meting out such punishments133

Delegates when addressing

this portion of the debate will need to be aware of the financial aspects of the issue as it forms

for many states an important part of whether capital punishment should be revoked or

not

129

httpwesleylowecomcphtmldeter 130

httpwwwnytimescomkeywordparole 131

httpwesleylowecomcphtmldeter 132

Ibid ndash view section titled Capital Punishment and its costslsquo 133

httpwwwamnestyusaorgour-workissuesdeath-penaltyus-death-penalty-factsdeath-penalty-cost

UNHRC 34 of 44

Imposition of Death Penalty on Juveniles

The prohibition on the death penalty for crimes committed by juvenile offendersmdashpersons under

age 18 at the time of the offensemdashis well established in international law specifically in the

Convention on the Rights of Child

ldquoNo child shall be subjected to torture or other cruel inhuman or degrading treatment or

punishment Neither capital punishment nor life imprisonment without possibility of release shall

be imposed for offences committed by persons below eighteen years of agerdquo134

- Article 37(a) Convention on the Rights of Child

ldquoSentence of death shall not be imposed for crimes committed by persons below eighteen years

of age and shall not be carried out on pregnant womenrdquo135

- Article 6(5) International Covenant on Civil and Political Rights

The treaties are a unanimously agreed set of non-negotiable standards and obligations By

acceding to the treaties and ratifying them governments commit to protecting and ensuring

childrens rights and to holding themselves accountable for this commitment before the

international community

Even though the practice of capital punishment on juveniles is relatively rare however in clear

contravention of international law nine countries have executed offenders who were juveniles at

the time of their crimes between 1990 and 2005136

These countries include the Peoples Republic

of China (PRC) the Democratic Republic of the Congo Iran Nigeria Pakistan Saudi Arabia

Sudan the United States and Yemen137

The USA has since moved to implement a ban on capital

punishment for juveniles However in most other countries of the preceding list the practice is

still enshrined in the judicial system Iranlsquos record in particular has been abominable over the last

decade It has carried out 39 executions of persons under the age of 18 since 2005 Presently

over a hundred individuals are placed on death row for crimes committed as juveniles The

executions of Mahmoud Asgari Ayaz Marhoni and Makwan Moloudzadeh became international

symbols of Irans child capital punishment and the judicial system that hands down such

134

httpwww2ohchrorgenglishlawcrchtm 135

httpwww2ohchrorgenglishlawccprhtm 136

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf - This document by the Human Rights Watch

called The Last Holdoutslsquo is a good summary of juvenile executions and should be reviewed 137

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 - Contains a list with

statistics and details of countries which have allowed the imposition of death sentence to juveniles

UNHRC 35 of 44

sentences138139140

Saudi Arabia and China too have questionable records that need to be

scrutinized further

While regional treaties and charters usually substantiate international law the Arab Human

Rights Charter of 2004 is unique among regional and international treaties in that the ban on the

juvenile death penalty in it is not absolute but merely optional141

Furthermore national laws in states that observe such a practice are in violation of

international legally-binding charters In Iran and Saudi Arabia laws usually treat a child the

same way as an adult criminal offender would be treated Article 10(3) of the International

Covenant on Civil and Political Rights emphasizes the need for demarcation between the

handling of children and that of adults in stating ―Juvenile offenders shall be segregated from

adults and be accorded treatment appropriate to their age and legal status142

The definition of a child in these Muslim states is unclear as adulthood is associated with

attainment of puberty which is a relative concept The Committee on the Rights of the Child in

January 2005 censured the Saudi government for its practice of imposing the death penalty on

juveniles terming it a serious violation of the fundamental rights The committee was deeply

alarmed over the discretionary power judges hold to treat juveniles as adults as was stated in

the committeelsquos report Iran too was strongly condemned following the release of an

international report highlighting the dire situation in Iran by the International for Human Rights 143

138

httpwwwfoxnewscomstory0293329798200html 139

httpnewsbbccouk2himiddle_east7130380stm 140

httpenwikipediaorgwikiCapital_punishmentIran 141

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 142

httpwww2ohchrorgenglishlawccprhtm 143

httpwwwfidhorgIMGpdfRapport_Iran_finalpdf

UNHRC 36 of 44

On August 19 2008 Iranian authorities executed Seyyed Reza Hejazi at Isfahan Central Prison

for his role in a murder committed in 2003 when he was 15 Hejazi was tried as an adult by

Branch 106 of the Isfahan General Court even if he did not qualify as one under international

stipulations and sentenced to death on November 14 2005144

In Saudi Arabia Mu`id bin

Husayn bin Abu al-Qasim bin `Ali Hakami was executed on July 10 2007 for a murder he

allegedly committed three years earlier when he was 13 years old145

The judges in these states

because of the implementation of the Sharialsquo law have a large amount of discretion with regard

to their rulings This discretion is often abused in the interrogation and judicial proceedings In

Pakistan authorities hanged Mutaber Khan in Peshawar Central Prison on June 13 2006 on

charges of murder of five people The fact that he was held in the juvenile wing of Peshawar

Central prison and the evidence presented by the accused confirming that his age was below 18

at the time of the killings were not taken into account during the trials and Mutaber was charged

as an adult in the case146

While the above does not cover exhaustively the practice of capitally punishing juveniles the

committee is expected to be well read on the matter The committee will be required to devise

ways to strictly apply the existing international law on the subject to curtail further deaths of

juveniles by states A series of recommendations on better implementation of international

covenants will be expected from the committee Delegates at UNHRC will also have to

familiarize themselves with the stipulations in the national laws of countries practicing juvenile

death penalties (Iran Saudi Arabia Pakistan Nigeria Sudan Yemen and UAE among others) to

discuss how these states are constitutionally able to bend international law and mete out the

illegal punishments

144

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 145

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 146

See FIDH and Human Rights Commission of Pakistan ―Slow march to the gallows and ―Condemned Prisoner

Executed Dawn Newspaper Karachi June 14 2005 httpwwwdawncom20060614nat16htm

UNHRC 37 of 44

Universality of Laws Incurring the Death Penalty

In countries which have not abolished the death penalty capital punishment may be imposed

only for the most serious crimes it being understood that their scope should not go beyond

intentional crimes with lethal or other extremely grave consequences

- Safeguards guaranteeing protection of the rights of those facing the death penalty147

Laws incurring the death penalty or capital crimes have certain uniformity the world over This

is of course barring states that are religiously affiliated and whose law systems are not secular

in nature The list of capital crimes for those states with non-secular legal systems is slightly

different The Human Rights Commission had decided that the imposition in the State party of

the death penalty for offences which cannot be characterized as the most serious including

apostasy committing a third homosexual act illicit sex embezzlement by officials and theft by

force are incompatible with Article 6 of the Covenant Economic offences including

embezzlement drug related offences political offences and robbery were also referred to148

The reason why looking into capital crimes and trying to garner a global impression of them is

important is that the death penalty can only realistically be abolished in a piecemeal way This

process will entail shortening the list of capital crimes The UN formally notes that ―in order

fully to guarantee the right to life provided for in article 3 of the Universal Declaration of

Human Rights the main objective to be pursued is that of progressively restricting the number of

offences for which capital punishment may be imposed with a view to the desirability of

abolishing this punishment in all countries149

The first established death penalty laws date as far back as the Eighteenth Century BC in the

Code of King Hammaurabi of Babylon which codified the death penalty for 25 different crimes

By the 1700s 222 crimes were punishable by death in Britain including stealing cutting down a

tree and robbing a rabbit warren In the 19th

century the death penalty was eliminated for over

100 of the 222 crimes punishable by death 150

In modern times the UN Special Rapporteur on

extrajudicial summary or arbitrary executions has stated that the death penalty should be

eliminated for economic crimes and drug-related offences and that the restrictions to its use

―exclude the possibility of death sentences for so-called victimless offences ndash including acts of

treason espionage and other vaguely defined acts usually described as crimes against the Statelsquo

or disloyaltylsquo and ―actions primarily related to prevailing moral values such as adultery and

prostitution as well as matters of sexual orientation151

147

httpwww2ohchrorgenglishlawpdfprotectionpdf 148

httpwwwunhchrchtbsdocnsf0bc310a747155dff88025655300537faeOpendocument 149

General Assembly resolution 2857 httpwwwunodcorgpdfcompendiumcompendium_2006_part_01_05pdf 150

httpdeathpenaltycurriculumorgstudentcabouthistoryhistoryPDF 151

httpswwwabofimedia24259report10pdf

UNHRC 38 of 44

Contrary to the made recommendations even political dissent warrants a death sentence in

several countries most notably in China and Iran In 2010 nearly 20 Kurdish people were

executed for political offences in Iran The country is known for keeping dissent especially from

the Kurds suppressed Most are executed on the grounds of moharebeh or enmity against God

Moreover challenging the power of the Ayatollah is also punishable by death These charges are

neither explicit nor in line with international guidelines over what crimes are punishable

capitally In Iran judges must handle such cases carefully as Iranian law provides for only one

punishment if an individual is found to be guilty of treason Libya too thwarts political dissent

with firm laws in place for punishing by death those who illegally form groups organizations or

associations against the state152

Saudi Arabia too is worth note for its vaguely phrased laws governing capital punishment

Intentional murder and crimes that spread ―mischief in the land (Fasad fil-ardh) merit death In

2010 the government announced that it had executed 26 people all by beheading Crimes that

―spread mischief include witchcraft and sorcery153

How is one convicted of witchcraft in the

21st century What can the international community do when regarding countries such as these

Treason arguably along with murder is the capital crime that has yet to be phased out by many

countries In some such as Brazil treason during warfare is the only crime for which a person

can be sentenced to death In the Gaza Strip under Hamas any sort of cooperation with Israeli

forces during military actions is also punishable by death In others including Algeria Bahrain

Iran and Malaysia treason is punishable by death in all circumstances The United States too has

federal laws governing treason under which traitors ―shall suffer death154

Child sex abuse is another crime that is widely held to merit the death penalty In Russia for

example according to the Russian Public Opinion Research Center an overwhelming majority

consider the death penalty to be an acceptable punishment especially in relation to molestation

155 In 2009 however Russias Constitutional Court effectively abolished the death penalty by

extending indefinitely a 13-year-old moratorium on capital punishment156

Indonesia has some of the strictest penalties for drug related crimes in the world Roughly half of

those on death row are incriminated with drug-related charges157

In 2008 though the most high

profile executions were of terrorists Three of those found responsible for the 2002 Bali

bombings were executed by shooting158

Generally speaking however a significant proportion of

152

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 153

httpwwwstategovgdrlrlshrrpt2010nea154472htm 154

httpdeathpenaltyproconorgviewresourcephpresourceID=1172 155

httpenrianrutrenddeath_penalty 156

httpwwwreuterscomarticle20091119idUSLJ330478 157

httpwwwnytimescom20080711worldasia11iht-indo114421132html 158

httpnewsbbccouk2hiasia-pacific7718246stm

UNHRC 39 of 44

the executions or death sentences recorded (in 2010) in China Egypt Indonesia Iran Laos

Libya Thailand United Arab Emirates and Yemen were for drug-related offences In December

2010 the amended Anti-Narcotics law came into force in Iran extending the scope of the death

penalty to include additional categories of illegal drugs (for example crystal meth) possession

of which became punishable by death Also around the same time the National Assembly of

Gambia voted to extend the scope of the death penalty by making the possession of more than

250g of heroin or cocaine an offence punishable by death159

Several states allow for the death penalty for crimes of blasphemy and other crimes for

nonviolent expression and association In Pakistan Aasia Bibi a Christian mother of five was

charged with blasphemy and sentenced to death after a trial largely believed to be unfair on 8

November 2010 She is currently on death row The country is also noted for its laws concerning

capital crimes The list includes 27 crimes most of which go beyond the notion of ―most serious

crimes as recommended by the International Covenant on Civil and Political Rights Extra-

marital sex and blasphemy are examples of some capital crimes in the country In December

2007 Pakistan voted against a United Nation General Assembly resolution for a moratorium on

the death penalty The year before however the nation amended its law on rape and adultery

charges which are no longer punishable by death160

As far back as 1989 recommendations have been made as to how to abolish the death penalty

Member states (of the UN) have been urged ―to publish for each category of offence for which

the death penalty is authorized and if possible on an annual basis information about the use of

the death penalty including the number of persons sentenced to death the number of executions

actually carried out the number of persons under sentence of death the number of death

sentences reversed or commuted on appeal and the number of instances in which clemency has

been granted and to include information on the extent to which the safeguards referred to above

are incorporated in national law161

The committee must inspect how far this recommendation

has been adopted and should seek to rectify the weaknesses in the system of gradually

abolishing the death penalty Can a target year be designated by which crimes meriting the death

penalty could be made universal How can countries with non-secular legal systems be brought

into the fold of international law

159

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 160

httpwwwfiacatorgenIMGpdfdppakistan-enpdf 161

httpgraduateinstitutechfacultyclaphamhrdocdocsecosocresolutiondeathpen1989html

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 20: UNHRCFINAL

UNHRC 16 of 44

Despite its totalitarian approach China refuses to accept responsibility for the issue Instead it

blames westernlsquo forces for trying to instigate separatism56

The indifference on the part of

China with particular regard to Tibet is apparent with Chinese authoritieslsquo continuous rejection

of ―inconvenient requests by UN human rights experts for visits to the Tibet Autonomous

Region57

During 1912 and 1951 Tibet underwent a period of de facto independence58

While it was still

territorially a part of China it enjoyed relative freedom in its political discourse Tibetan

autonomy was confined within the context of Chinese suzerainty and should not be interpreted

as unrestrained political independence Since 1951 however the Chinese government has taken

steps to ensure its absolute and undeniable dominance over Tibet from which emanates the strife

under discussion Gross violations of human rights have taken place in China administered by

officials with the purpose of cultivating consent with regard to its control over the region

Suppression has led to the inevitable extensive discontent in Tibet a fury which was unleashed

in 2008 The Tibetan unrest of 2008 was a series of protests and demonstrations - not merely in

the Tibet Autonomous Region but elsewhere as well - that later transformed into rioting burning

looting and even killing59

The rioters set fire to state vehicles and clashed violently with the

police installed in the region The crackdown of Chinese authorities in response to the riots was

severe resulting in deaths on both sides and mass imprisonment by state authorities The degree

to which human rights were violated and abused during this crackdown cannot be overstated

The Chinese also revoked the freedom of sharing of information and imposed a ban on the entry

of media officials in the region to contain

information about the unrest and play down

protests60

A Tibetan Government in Exile has existed in India

since 1959 established by the 14th

Dalai Lama61

This Central Tibetan Administration considers the

issue as an illegitimate military occupation by the

Chinese state The Administration works with the

agendas of restoration of freedom in Tibet and rehabilitation of Tibetan refugees

Historical facts refute such a fallacy however The simple reality that the installation of the 14th Dalai Lama

needed the approval of the national government is sufficient proof that Tibet did not possess any independent power

during that period ndash (httpwwwchinaorgcne-whitetibet9-2htm)

56

httpwwwunhcrorgrefworldcountryAMNESTYCHN49b8dfc11a0html 57

Ibid 58

Grunfeld A Tom Reassessing Tibet Policy 2000 59

httpwwwnytimescom20080316worldasia16iht-tibet111134870html 60

Watts Jonathan Branigan Tania (March 18 2008) Tension rises as armed police mass in capital The

Guardian (London) Retrieved November 1 2011 61

httpwwwtibetnetenindexphpid=14

UNHRC 17 of 44

The censured freedom of expression is one of the multiple infringements on rights that are

imposed by China on Tibet Tibetans are denied the basic right to articulate their views through

political discourse Human rights activists advocate the freedom of speech for Tibetans under the

existing and future political arrangements Religious and political figures in Tibet are placed

under house arrest limiting their freedom of movement (in contradiction to article 13 of the

Universal Declaration of Human Rights)62

As was highlighted during the unrest in 2008 China

has often stripped the Tibetan population of its fundamental rights to associate and assemble In

2000 nine Tibetan prisoners in Kandze were charged for participating in a peaceful protest to

five-year prison terms in October 1999 (which were later increased to ten-year terms)63

This example leads us to another crop of abuse conducted overtly by Chinese authorities

arbitrary detention Article 9 of the Universal Declaration of Human Rights reads ―No one shall

be subjected to arbitrary arrest detention or exile64

Chinese law however permits authorities

to detain persons without formally arresting or charging them and persons may be sentenced

administratively to up to 3 years in reeducation-through-labor camps and other similar facilities

without a trial

Chinese authorities have been unresponsive to concerns expressed by the United Nations

Working Group on Arbitrary Detention No counter-explanation was given either over the case

of three Tibetans who had their sentences extended for staging a peaceful political protest during

the Working Groups visit to Drapchi in October 1997 despite international pressure65

Infinite

examples of arbitrary arrests and detentions exist in China international authorities have called

on China to cease this practice and release such detainees immediately absent evidence that they

have engaged in criminal acts No state can or should be able to hold anyone for engaging in

peaceful political activity All humans

should be granted internationally recognized

due-process protections which includes the

right to be informed of the charges leveled

against them66

The question of whether

these detainees are given an impartial trial if

one at all is not even raised

In addition to the arrests carried out in

violation of international law there are

grave evidences of abuses during detention

62

httpwwwhrworgnews20000612human-rights-violations-tibet 63

Ibid 64

httpwwwunorgendocumentsudhr 65

httpwwwhrworgnews20000612human-rights-violations-tibet 66

httpwwwhrworgnews20000612human-rights-violations-tibet

UNHRC 18 of 44

Incidences of beatings at time of arrest and torture (including the administration of electric

shocks and deprivation of food and medical treatment)67

during custody are widely reported

These are not isolated cases rather the product of a holistic policy of dealing with political

dissidents In one notable incident in May 1998 political prisoners in Drapchi staged major

protests to coincide with a visit from a European Union delegation The protests were non-

violent but the authorities reaction was severe several protestors were shot at and one monk

Lobsang Gelek subsequently died68

The Convention Against Torture (CAT ratified by China in 1988) requires the state to prevent

torture and punish those in violation of the law China has not amended its own laws to comply

with even the first article of CAT69

Such practices explicitly stand in contempt of Article 5 of

the Universal Declaration of Rights which censures the use of torture or cruel treatment as

punishment Dr Manfred Nowak the UN Special Rapporteur on Torture stated that ―he was

struck by the strictness of prison discipline and a palpable level of fear and self-censorship when

talking to detainees following his brief assessment of Chinese and Tibetan prisons in 200570

The committee will be looked upon to review ways in which the situation can be monitored more

carefully and what responses if any can be cultivated to impede similar future actions by

China

The continued violations of religious freedom and implementation of policies designed to

diminish religious practices by the State to serve its political needs is a cause of concern Again

referring to the Universal Declaration of Human Rights Article 18 reads ―Everyone has the right

to freedom ofhellipreligion this right includes freedomhellipto manifest his religion or belief in

teaching practice worship and observance71

The policies implemented by Chinese authorities

through use of coercion violent repression and imprisonment impinge upon the freedom of

Tibetans to practice their religion freely China has also strictly enforced re-education programs

for dissident factors within the state The program is aimed at ―combating separatism protecting

stability and promoting development and is intended to reform the political ideology of people

who refuse to accept state control of what they perceive as vital aspects of their religious lives

and beliefs The committee will be expected to deliberate upon the protection of religious

freedom and practices of individuals as well as the validity of these re-education programs in

light of human rights and liberties

Tibet is not the only region where political tensions surrounding autonomy run high The

Kosovo-Serbian conflict is pertinent to recall The Republic of Kosovo declared itself to be an

independent entity on February 17 2008 As of 11 October 2011 85 UN states recognize the

independence of Kosovo However Serbia maintains that Kosovo is a UN governed entity under

67

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 68

httpwwwfreetibetorgabouttorture 69

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 70

Ibid 71

httpwwwunorgendocumentsudhr

UNHRC 19 of 44

its sovereignty Russia and China are among those who do not recognize the Republic while the

USA UK and France have recognized Kosovolsquos declaration of independence This highlights the

rift between the United Nations Security Council over the issue The case of Tibet is all the more

important in light of the fact that many such pockets exist in the world struggling for self-

determination

Media Links

httpwwwfreetibetorgnewsmedia2008-protests-summary

httpwwwguardiancoukworldgallery2008mar19tibetchinapicture=333178281ampindex=7

Chinarsquos Violation of Ethnic Minority Rights

One of the greatest blemishes on Chinalsquos human rights record is in the area of ethnic minorities

and the extent to which China protects ethnic minority rights On paper Chinalsquos policies are

based on ethnic equality and regional ethnic autonomy Ethnic minorities are supposed to be

benefitting from preferential policies in the political economic cultural and educational spheres

However the ground realities are infinitely different Questions have been raised over the extent

to which the government fairly provides services to these minorities and allocates resources

equally to them The Chinese government is seen to largely prefer its Han majority The

minorities claim they are exploited for their resources and in turn not even provided with the

same level of social services as the Han people China is an atheistic government and the fact

that many ethnicities garner their identity in major part from their religious affiliation leads to a

precarious situation The Mongols Tibetans and Uighurs all come to mind when discussing the

issue of China and ethnic minority rights

―Everyone is entitled to all the rights and freedoms set forth in this Declaration without

distinction of any kind such as race colour sex language religion political or other opinion

national or social origin property birth or other status Furthermore no distinction shall be

made on the basis of the political jurisdictional or international status of the country or

territory to which a person belongs whether it be independent trust non-self-governing or

under any other limitation of sovereignty

- Article 2 Universal Declaration of Human Rights

The International Convention on the Elimination of Racial Discrimination defines racial

discrimination as any distinction exclusion restriction or preference based on race colour

descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the

recognition enjoyment or exercise on an equal footing of human rights and fundamental

UNHRC 20 of 44

freedoms in the political economic social cultural or any other field of public life72

It is due to

this that the international community has adopted the norm of subsuming ethnicity under the

terminology of race

―The Peoples Republic of China is a united multi-ethnic country So far 56 ethnic groups have

been identified and recognized by the central government The population of various ethnic

groups differs greatly While the Han ethnic group has the largest population and that of the

other 55 ethnic groups is relatively small so they are customarily referred to as ethnic

minoritieslsquo According to the fifth national census conducted in 2000 the population of all the

55 ethnic minority groups totaled 10449 million accounting for 841 percent of the total

population of China73

Chinas official 55 minorities are located primarily in the south west

and north of China Only Tibet and Xinjiang have a majority population of official minorities

while all other provinces municipalities and regions of China have a Han majority

One of Chinalsquos autonomous regions is the Xinjiang Uighur Autonomous Region (XUAR)

located in western China The area is vast accounting for one sixth of Chinalsquos land and houses

around 13 major ethnicities including the Uighurs who are a predominantly Muslim people with

origins in Central Asia The Uighurs have had strained ties with the state and have often resisted

Chinese authority74

In turn the Chinese government has reacted sometimes violently against

restless factions in the region One of the most passive aggressive forms of response on the part

of the Peoplelsquos Republic has been the encouragement of the migration of the Han people ndash

Chinalsquos ethnic majority ndash to the XUAR75

Around 90 of Xinjiangs population comprised of

Uighurs in 1949 now it is estimated that Uighurs make up only about 45 of the population76

The policies in Xinjiang are said to be designed to ―promote economic development not

demographic change In reality though the influx of migrants has amplified Uighur discontent

as Han and Uighurs compete over limited jobs and natural resources77

The United Stateslsquo

Congressional-Executive Commission on China reported that in 2006 the XPCC (Xinjiang

Production and Construction Core) reserved approximately 800 of 840 civil servant job openings

for Han Chinese78

One of the causes of the Han monopoly in the employment sector is the

linguistic advantage afforded to them and perpetuated by the education system As part of its

efforts to implicitly impose a unified culture the language policy was altered by the state with

an increased focus on use of Mandarin in schools at the expense of the local languages

Methods of education special to the ethnic peoples of the XUAR including the Muslim Uighurs

are suppressed For example a campaign by the PRC in 2001 targeted religious teachers and

72

httpwww2ohchrorgenglishlawcerdhtm 73

httpenglishgovcnofficial2005-0728content_18127htm 74

httpwwwcfrorgchinaeast-turkestan-islamic-movement-etimp9179 75

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p8 76

httpnewsbbccouk2hiasia-pacific3330803stm 77

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p4 78

httpwwwcolumbiaeducunewsclips20080801UighursTWPOSTpdf

UNHRC 21 of 44

endeavored to sever ties between mosques and groups involved in allegedly ―separatist

activities Around 8000 imams were required to undergo ―political reeducation in this regard

and become ―patriotic religious personalities Ethnic minorities are educated in ways that do not

allow them to learn their own languages or practice their own religion In 2001 for example a

Muslim girl was expelled from school for praying 79

Moreover in an attempt to further its socialist agenda and bind ethnic minorities together

minority cultural activities are often hindered In its place nationalistic values are given a

premium and integrated into society so as to tie the entire country in a unified Chinese foldlsquo

Resultantly an asymmetry with regards to the provision of services and protection of cultural

identity can be found in almost every ethnic minority region in the country The repression

against minorities has wider implications on the human rights situation for all This leads to

creation of a vindictive attitude among the minorities not only against the government but also

the Han majority

In July 2009 this attitude manifested itself in

the form of severe riots between the Han and

Uighur communities in Xinjianglsquos capital city

Urumqi Ethnic tensions elevated to the point

that police involvement was made necessary

According to Chinese state media at least 150

people were killed and more than 800 were

injured The riots were reportedly sparked by a

Uighur protest over the ethnically motivated

killing of two Uighur workers in the southern

province of Guangdong

On the topic of allegations of separatism it is interesting to note that post 911 it has been noted

that the Chinese government has used concerns about terrorism as a method for suppressing

ethnic activity This is possible through the characterization of certain ethnicities as having

fundamental leanings The Muslim Uighurs fell under fire for this very reason after the

September 2001 attacks

One of the ways that the Chinese government with its Han leanings has asserted its presence in

the region is through the smokescreen of the XPCC The Peoplelsquos Liberation Army and the

XPCC are present in the region per the government to ―consolidate border defense accelerate

79

wwwminorityrightsorgdownloadphpid=29 Page 30

UNHRC 22 of 44

Xinjianglsquos development and reduce the economic burden on local governments and the local

people of all ethnic groups80

The heavy militarization of ethnic minority

regions also enables the Chinese government

to quickly respond to skirmishes between the

minorities and the Han For example clashes

between the Uighurs and the Han in the

XUAR are quickly clamped down upon The

response by Chinese authorities always

focuses on the minority groups in the region

The typical response includes a period of

strike hardlsquo security measures during which the minorities are subjected to police patrols of

crowded areas identity checks street searches increased criminal investigations and accelerated

trials The measures also include mandatory political indoctrination classes for the Uighur

population Swift Chinese response to ethnic dissidence precludes the possibility of trying

protestersrioters under due process This phenomenon also contributes to the controversy of

China and its policy of arbitrary imprisonment

Essential to any countrylsquos social progress is the protection and provision of the basic rights to all

its citizens For a country like China which has a significant standing in the international

community the degree to which human rights are upheld comes under added scrutiny Minorities

need to be guaranteed provision of not only fundamental rights but additional ones that grant

them equal opportunities

Recent Developments

3 November 2010 UN Secretary General pushes China on human rights

Ban Ki-moon the United Nations secretary general has called on China to respect human rights

after critics accused him of dodging the issue on a trip to Beijing The UN secretary general met

Hu Jintao the Chinese president but failed to challenge Mr Hu on the imprisonment of Liu

Xiaobo the democracy activist who was awarded this years Nobel Peace prize and raise the

issue of human rights81

80

httpwwwchinaorgcne-white200305269htm 81

httpwwwtelegraphcouknewsworldnewsasiachina8107148UN-Secretary-General-pushes-China-on-human-

rightshtml

UNHRC 23 of 44

5 November 2011 Yeqing Ji from Shanghai China will most likely not be able to have children

after she said two forced abortions physically impaired her uterus82

8 September 2011 The Chinese government has renewed Googlelsquos license to allow it to

continue operating its local website in the country83

13 November 2011 Seven months ago

Chinese police detained the countrylsquos most prominent artist Ai Weiwei at the airport and drove

him to a hidden location It was the beginning of what is to be a two-and-a-half month nightmare

for the architect and sculptor who is also a former darling of the Communist Party who later

turned into an outspoken government critic Ai was held on vague charges of economic crimes

was kept in isolation and subjected to Kafka-esque interrogations84

April 19 2011 Amnesty International a 21-year-old monk Phuntsog set himself on fire in an

apparent anti-government protest in March 2011 Instead of putting out the flames Chinese

police beat the young monk creating huge resentment in the monastery85

At least 11 ethnic

Tibetans have been detained for protesting against the event and against government policies

They are at risk of torture and other ill-treatment86

29 May 2011 300 Tibetan monks detained in Kirti monastery by Chinese security forces87

15 September 2011 Chinese Uighurs economic fears

Amid ethnic tensions minority regards modernization plans in Xinjiang as favoring Han Chinese

migrants88

20 November 2011 Another of Chinalsquos minorities the Hui Muslims in Ningxia do not feel

stigmatized

―There is an important reason why Hui and Han Chinese get along with each other Unlike

Muslims of the other ethnic minorities like Uighur Kazakh Kyrgyz and Tajik the Hui Muslims

speak Mandarin just like the Hans89

82

httpabcnewsgocomBusinesswoman-china-forced-abortions-leaves-unable-

childrenstoryid=14880884Tsia7LIk6so 83

httpwwwbbccouknewsbusiness-14832392 84

httpwwwthedailybeastcomnewsweek20111113ai-weiwei-speaks-out-on-his-detentionhtml 85

httphradvorgaggregatorsources10 86

httpwwwamnestyorgenlibraryassetASA170212011end75f7611-be66-4d5a-9391-

c80c43501d56asa170212011enhtml 87

httphumanrightshouseorgArticles16503html 88

httpwwwaljazeeracomvideoasia20110920119158016969449html 89

httpwwwtodayszamancomnews-263322-chinas-hui-muslims-do-not-feel-stigmatizedhtml

UNHRC 24 of 44

Conclusion

The United Nations Human Rights Council at LUMUN 2012 will be looked upon to provide a

framework for the resolution of these issues in a universal context The scope of the issues

should be expanded and applied to countries other than China The committee will have to make

recommendations which have universal application and resolve all aspects of the issue

comprehensively For any queries related to the study guide please do contact either (or both)

the committee directors at the given addresses

UNHRC 25 of 44

Topic Area B Abolishing the Death Penalty

Introduction to the Topic Area

The death penalty is formally defined as the execution of an offender sentenced to death after

conviction by a court of law of a criminal offenselsquo90

The concept of a capital crime is subjective

and states have made use of this practice in response to multiple forms of crime The use of the

death penalty has produced much controversy with regard to its apparent violation of

fundamental human rights as delineated in the Universal Declaration of Human Rights and

subsequent human rights charters and treaties It is asserted that the use of death penalty is in

contravention to the peopleslsquo right to life promised to every individual under Article 3 of the

Declaration91

Moreover Article 2 of the Charter of Fundamental Rights of the European Union

lucidly bars the imposition of death penalty as a form of punishment92

Arguments against the

use of death penalty are also made on the grounds of inhumane methods which are employed to

see out the process Historically multiple methods have been used which include death by

hanging severing of the head lethal injection shooting and electrocution93

94

As a response states have made keen efforts to abolish

the death penalty particularly in the last two decades as

can be interpreted from the graph on the right which

represents the number of states that have abolished the

death penalty Countries belonging to the European

region with the exclusion of Russia and Belarus have

sought to revoke the use of the practice The death

penalty is most commonly seen to be a formal practice

in most of the developing countries The trend is

apparent in Latin America Africa and Asia

96 countries have formally abandoned the use of death penalty 58 countries allow the use95

Other states have abolished the penalty in practice but the laws remain in place for the

imposition of the penalty as a response to certain crimes The imposition of the death penalty has

90

httpwwwbritannicacomEBcheckedtopic93902capital-punishment 91

httpwwwunorgendocumentsudhr 92

httpwwweuroparleuropaeucharterpdftext_enpdf 93

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffle

re-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 94

httpwwwdeathpenaltyinfoorgmethods-execution 95

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf

Figure 1 (Drag to enlarge)

UNHRC 26 of 44

seen a decline over the recent years with a fall in the number of executions that take place

annually It would however be incorrect to assume that the practice is not prevalent or widely in

effect Amnesty International reported that at least 2024 new death sentences were imposed in 67

countries in 2010 Moreover there were at least 17833 people sentenced to death worldwide at

the end of 201096

Again these are minimum figures which are the safest that can be inferred

from the given research There were 527 known executions carried out in 2010 globally97

This

figure however does not include the number of executions that took place in China where

analysts believe that more than a thousand people were put to death in the past year

The statistics represent the number of people executed through capital punishment One way to

formally define capital punishment is to regard it as the state sanctioned killing of an individual

through a judicial process as a punishment for a crime (defined as a capital crime by the state)98

Capital punishment is the most obvious and prevalent manifestation of the death penalty It is

often perceived as a statelsquos right in order to preserve law and order against any individual who

engages in serious crimes that threaten other individuals or the state Those who advocate against

the use of capital punishment label it as a symptom of a culture of violence not a solution to

itlsquo99

The controversy surrounding the topic is based on the legal ethical and moral acceptability

of the statelsquos right to an individuallsquos life The debate entails several social and economic factors

some of which will be reviewed in closer detail in the relevant section of this guide

One of the most striking aspects related to the issue is the imposition of the capital punishment

on juveniles The sentencing of juveniles to death is in clear breach of international law The

morality and validity of such a practice is often called into question and has been put under

relentless scrutiny despite all of which the practice is still carried out in a number of countries

Historically the United States China and Iran have the worst records relating to juvenile death

sentences100

The study guide also includes a separate section for the case of juveniles in which

the legal and social aspects of the problems are detailed

As stated states have made use of the death penalty to punish crimes of varying natures The use

of the death penalty is reserved for only the most seriouslsquo crimes as put forth in international

law101

The notion of a capital crime however is a subjective one states that have doled out

death sentences have defined it differently In certain countries the death penalty is only used to

charge criminals accused of war crimes In other countries the penalty is reserved for crimes like

96

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf 97

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010 98

httpusersrcncommwooddeathpenhtml 99

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 100

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 101

httpwwwunorgdocumentsecosocdocs1995e1995-78htm

UNHRC 27 of 44

murder rape or even robbery States also use the death penalty against individuals who are guilty

of treason The issue however is that many states practicing the death penalty impose the

punishment even when the crimes do not meet the threshold for the aforementioned most

seriouslsquo crimes The ability of states to define what constitutes as a capital crime has led to states

abusing their powers as has been observed in the sentences ordained by military courts

Moreover even the radicals who make the argument of the punishment fitting the crime agree

that in many instances individuals have been executed for softlsquo crimes crimes that were

certainly not tantamount to charges of murder or crimes against humanity The issue of apparent

violations of human rights is further exacerbated in these instances The study guide will discuss

the universal crimes that have resulted in the awarding of the death penalty and examine the

issue further The committee will be expected to discuss the feasibility of drawing up an

international definition of crimes which in isolated instances perhaps may be appropriate for a

sentence like the death penalty

Another pertinent aspect surrounding the debate is that of extrajudicial killings The execution of

a person by state authorities without the authority of a judicial proceeding is termed as an

extrajudicial killing Many states have used extrajudicial killings to establish their authority and

order without having to wade through the legal process By doing so they have deprived scores

of people of their fundamental right to free and fair trials Governments have also employed this

tactic to exercise political aggression and to suppress dissent A particular point of concern is the

fact that some states have made use of these killings even when they have officially revoked the

imposition of the death penalty Extrajudicial killings are carried out persistently in many

countries ndash the list includes countries like Iran Iraq Israel Philippines102

Most recently the

killing of Anwar al-Awlaki and Samir Khan in Yemen by a sanctioned National Security Council

move by the USA was an example of states embarking on such paths to eliminate threats to

national securitylsquo103

102

Multiple citations for each country can be found in the second paragraph article titled Extrajudicial killinglsquo on

Wikipedia 103

httpwwwtelegraphcouknewsworldnewsbarackobama7564581Barack-Obama-orders-killing-of-US-cleric-

Anwar-al-Awlakihtml

UNHRC 28 of 44

Wrongful convictions lead many to believe in the inherent incapacity of the death penalty to

serve justice On September 21 2011 US citizen Troy Davis was executed in Georgia after

which seven of the nine witnesses who testified against him in the case that led to his execution

recounted or retracted their evidences A petition with nearly one million signatures was put

forth to reconsider his case it was rejected On the same day a 17 year old boy was publicly

hanged in Iran for killing a popular athlete his justification based on self-defense was ignored

Also on the same day a Pakistani national was executed in China on grounds of drug trafficking

an offence that does not often result in capital punishment The need for the resolution of this

issue is pressing and the committee needs to deal with all aspects of the problem in a

comprehensive and enduring manner104

Capital Punishment

In 2010 23 countries implemented capital punishment A total of 527 executions (plus the 1000+

carried out in China alone) were known to have taken place with Iran Yemen USA and North

Korea meting out a significant number of sentences105

The figure is lower than the records

computed for years past There are more states which are now abolitionist either in law or in

practice with regard to the imposition of the punishment Gabon was officially the last country

to rescind the practice while bills calling for an end to capital punishment have been presented

to parliaments in Lebanon Mali Mongolia and South Korea106

Renewed efforts are

104

httpwwwamnestyorgennews-and-updatesus-executes-death-row-prisoner-troy-davis-2011-09-21 105

httpwwwguardiancouknewsdatablog2011mar29death-penalty-countries-world 106

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010

UNHRC 29 of 44

simultaneously being made on the international front to implement laws against capital

punishment A third resolution establishing a moratorium on the use of death penalty passed the

UN General Assembly on December 21 2010107

Despite the increasing momentum towards an eventual elimination of the practice the number of

executions taking place annually is a cause of major concern Advocates of the death penalty

assert that the practice is an effective means of deterring crime in society Public executions are

often held in Iran Afghanistan and Palestine for example to demonstrate the fate awaiting

those who commit similar crimes108

Arguments are made on the grounds of justice that it is

proper and fair to take an eye for an eye and a life for a life and that some individuals deserve

it for the crimes they commit

Those opposing the practice question the morality of an action sanctioned by the state which

endorses deprivation of the right to life a fundamental human right under the Universal

Declaration of Human Rights109

There are inescapable flaws within legal systems which are

aggravated by discrimination prosecutorial misconduct and inadequate legal representation

Moreover the risk of executing the innocent can never be eliminated110

An alternative is

presented in the form of imprisonment for life without parole which results in a parallel debate

is imprisonment for life a viable surrogate to the practice of death penalty A thread from this

debate also relates to the economic feasibility of carrying out a death sentence as opposed to the

feasibility of imprisonment for life

Deterrence

Capital punishment is often propagated as an adequate approach in the deterrence and prevention

of crime The logic is that if murderers are sentenced to death potential murderers will think

twice before killing for fear of losing their own life The deterrence theory presumes that the

once the punishment for a certain crime is established the criminal by committing the crime

voluntarily assumes the risk of receiving the prescribed punishment for the crime Only when the

most severe punishment has been set will there be a possibility of an individual evaluating their

actions in light of the consequences111

107

httpwwwundemocracycomA-RES-62-149pdf 108

httpwwwamnestyorgennews-and-updatessharp-rise-public-executions-iran-executes-first-juvenile-

offenders-2011-2011-04-27 109

wwwunorgendocumentsudhr 110

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 111

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 30 of 44

The death penalty it is asserted ensures that convicted criminals do not offend again moreover

it is deemed to be a just penalty for atrocious crimes It is further alleged that many criminals

who are set free even after lengthy sentences regress and go on to commit heinous crimes

Therefore there should never be the possibility of a release clause112

The deterrence theory is modeled on the grounds of human psychology logic and rationale As a

professor of jurisprudence Ernest van den Haag PhD wrote ―Common sense lately bolstered

by statistics tells us that the death penalty will deter murder if anything can People fear nothing

more than death Therefore nothing will deter a criminal more than the fear of death These

statements were further validated by a US Supreme Court Justice who said on record that

Prima facie the penalty of death is likely to have a stronger effect as a deterrent to normal

human beings than any other form of punishmentlsquo113

Numerous studies have been conducted on

the subject with varying results One of the most established studies was conducted in USA

using a panel data set of over 3000 counties from 1977 to 1996 which concluded that on

average one death sentence resulted in 18 fewer murders114

Delegates will be expected to be

familiar with other similar studies

These studies are commonly refuted as not crediblelsquo by opponents of the capital punishment

who also deny the correlation between crime and death penalty as a fabricated relationship which

cannot be empirically established115116

A study of the relationship between capital punishment

and the incidence of murder was conducted for the UN in 1988 and updated in 2002 The

conclusion was ―The investigation has not provided scientific proof that executions have more

deterrent effect than life imprisonment It is unlikely that such evidence will ever come

Deterrence hypothesis finds no support in the survey117

Another counter-argument asserts that crime is still a persistent feature of the societies that

continue to award the death penalty while many of the abolitionist states enjoy low crime rates

This can be evidenced by comparing the crime rate in USA or Pakistan with that of Canada or

some European state In Canada for example the homicide rate per 100000 fell from a peak of

309 in 1975 the year before the abolition of the death penalty for murder to 241 in 1980 and

in 2003 27 years after abolition the homicide rate was 173 per 100000 44 per cent lower than

in 1975118

112

httpwwwdeathpenaltyinfoorgfacts-about-deterrence-and-death-penalty 113

httpdeathpenaltyproconorgviewresourcephpresourceID=002000 114

httpdeathpenaltyproconorgsourcefilesThe20Deterrent20Effect20of20Capital20Punishmentpdf ndash

Delegates should carefully examine certain parts of this document to establish the credibility of the assertions made

They should also invest in trying to locate studies that refute the assertions made in this and similar studies 115

httpwwwdeathpenaltyinfoorglaw-enforcement-views-deterrencelawenforcement 116

httpwwwdeathpenaltyinfoorgDonohueDeterpdf 117

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 118

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml

UNHRC 31 of 44

The lack of evidence on the production of a unique deterrent effect points to the danger of

relying on the deterrence hypothesis as a basis for public policy on the death penalty

Retribution amp Morality

An important terminology that delegates need to familiarize themselves with is that of

―retributivism119

It is defined as ―a policy of criminal justice that sponsors the punishment of

criminals in retribution for the harm they have inflicted120

Criminals deserve to be punished in

proportion to the gravity of their crime regardless of whether the victim or anyone else desires

it we may all deeply regret having to carry out the punishment but consider it warrantedlsquo is

what many say in defense of the theory121

The need for the establishment of a visibly just state arises from the potential risks of not having

one As has been visible in many developing countries with shaky legal systems when criminals

are not adequately punished for their unlawful behavior the public takes the law into its own

hands and deals out vigilante justice It is asserted that retributivism is essential for a functioning

society where individuals respect the supremacy of law

The concept of retribution in society is also grounded in religious beliefs The concept of an eye

for an eye has been a part of all three Abrahamic traditions However in the modern world it is

Islamic nations that still retain the practice based on these grounds Similar traditions can be

found in Hinduism Christianity and Buddhism as well as other religions in different parts of the

world In many non-secular countries the constitutions and state laws are derived from religious

doctrines

Opponents dismiss this aspect of the argument as being emotionally charged with little rational

logic to support the contention They claim that the establishment of capital punishment gives

birth to a culture of violence endorsed by the state It perpetuates the cycle of aggression and

brutality something which the state should be actively inhibiting not endorsing

Wrongful Convictions

The death penalty carries with it the danger of wrongfully convicting an innocent person for

crimes he did not commit There is the potential for capital punishment to evolve into sheer

miscarriage of justice as in certain circumstances states are often seen to rush the trials and

convict the accused hastily This practice takes foremost apparently in military courts often in

119

Cavadino M amp Dignan J (1997) The Penal System An Introduction (2nd ed) p 39 London Sage 120

httpdictionaryreferencecombrowseretributivism 121

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 32 of 44

the developing or lesser-developed countries where the system of law is not properly established

It is not however exclusive to these countries Examples can be drawn from countries like

Philippines Thailand Iran and Palestine to name just a few where executions are carried out at

alarming pace removing the possibility of reviews

On 15 August 2004 Atefah Rajabi Sahaaleh was hanged in a public square in the Iranian city of

Neka Her death sentence was imposed for adultery and crimes against chastity122123

Atefah

was executed a week after the trial was run Following the execution the Judge for the case was

arrested for investigation by the Intelligence Ministry The media reported that in addition to the

confession of his rape of Atefeh Judge Rezai who served as judge jury and executioner also

confessed to torturing her during interrogations to extract names of others she had relations with

No transcripts from court proceedings were recorded The State alleged that Atefah was 22 at the

time of her execution A witness later claimed The judge just looked at her body because of

the developed physique and declared her as 22124

ndash her birth certificate revealed she was born

in 1988 Furthermore Atefah did not have access to a proper defense where she could contest

charges leveled against her This is one example of many such cases of miscarriage of justice

Something that recurs in these cases is the failure of the police or prosecuting authorities to

prevent the use of unreliable witnesses the misuse of evidence or confessions and the provision

of inadequate defense representation The advent of DNA profiling and the use of it as positive

evidence in criminal cases has resulted in the exoneration of multiple death row inmates on

grounds of forensic evidence or lack thereof Since 1973 138 people have been released from

death row in the United States after it was proven that they were innocent125

In 2009 Paul

House was cleared of murder and exonerated in Tennessee USA after having served 22 years

on death row His innocence was proclaimed in light of substantial additional DNA testing and

further investigationlsquo 126

Amnesty International has noted examples of wrongful convictions from elsewhere as well

including Jamaica Japan China Nigeria and Tanzania127

Paul G Cassell a former law clerk to

the Chief Justice of USA stated the mistaken release of guilty murderers should be of far greater

concern than the speculative and heretofore nonexistent risk of the mistaken execution of an

innocent personlsquo highlighting the case made by those who advocate the death penalty even in

light of wrongful convictions128

122

httpwwwcosmolearningcomdocumentariesexecution-of-a-teenage-girl1 123

httpnewsbbccouk2hi5217424stm 124

httpnewsbbccouk2hi5217424stm 125

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 126

httparticlescnncom2009-05-13justicetennesseeexonerated_1_death-row-inmate-dna-evidence-house-

arrest_s=PMCRIME 127

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 128

httpdeathpenaltycurriculumorgstudentcaboutargumentstestimony3bhtm

UNHRC 33 of 44

Alternative to Death Penalty

All abolitionist states have reverted to the practice of sentencing criminals to life imprisonment

(some without parole) which is also termed as death by incarceration Widely regarded as a more

humane course of action life imprisonment is also alleged to be a more economical practice

While ensuring public safety by keeping criminals away from society this system also saves the

lives of innocent people who have been falsely or wrongfully convicted The setup inhibits and

curbs the cycle of violence while retaining the deterrence factor it is strongly asserted

Advocates for the death penalty are averse towards life imprisonment for a number of reasons

They cite the unreliability of the system as one of the flaws which impedes the possibility of

such a sentence being successful A certain James Moore serves as a valid example in this case

In 1962 James Moore raped and strangled 14-year-old Pamela Moss The victimlsquos parents opted

out of capital punishment for Moore and he was instead sentenced to life in prison without

parole Twenty years later a change in sentencing laws in 1982 renders James Moore eligible for

parole every two years129130

Kenneth McDuff is another example McDuff was convicted and sentenced to life imprisonment

Years later due to the issue of overcrowding in prisons McDuff was released following which

he killed eight more people McDufflsquos example is of an individual from a developed country

with an established legal system in place131

Overcrowding is a feature of prisons in developing

or lesser developed countries In many such states criminals have also been known to easily

break out from penitentiaries

The economic aspect of the debate is murky at best There is a lack of empirical data on the

subject which is why the arguments of both these sides cannot be settled beyond doubt

Advocates of capital punishment insist that the overall costs of the practice are far lesser than the

costs of housing an inmate for a lifetime132

They also suggest that the life imprisonment allows

criminals to conceive new habeas corpus petitions which on legal grounds cannot be rejected

automatically resulting in more trials

On the other hand substantial arguments are made which stress that the cost of legal proceedings

in capital cases is in truth more than that of other cases States and nations spend a significant

portion of the taxpayerlsquos money in meting out such punishments133

Delegates when addressing

this portion of the debate will need to be aware of the financial aspects of the issue as it forms

for many states an important part of whether capital punishment should be revoked or

not

129

httpwesleylowecomcphtmldeter 130

httpwwwnytimescomkeywordparole 131

httpwesleylowecomcphtmldeter 132

Ibid ndash view section titled Capital Punishment and its costslsquo 133

httpwwwamnestyusaorgour-workissuesdeath-penaltyus-death-penalty-factsdeath-penalty-cost

UNHRC 34 of 44

Imposition of Death Penalty on Juveniles

The prohibition on the death penalty for crimes committed by juvenile offendersmdashpersons under

age 18 at the time of the offensemdashis well established in international law specifically in the

Convention on the Rights of Child

ldquoNo child shall be subjected to torture or other cruel inhuman or degrading treatment or

punishment Neither capital punishment nor life imprisonment without possibility of release shall

be imposed for offences committed by persons below eighteen years of agerdquo134

- Article 37(a) Convention on the Rights of Child

ldquoSentence of death shall not be imposed for crimes committed by persons below eighteen years

of age and shall not be carried out on pregnant womenrdquo135

- Article 6(5) International Covenant on Civil and Political Rights

The treaties are a unanimously agreed set of non-negotiable standards and obligations By

acceding to the treaties and ratifying them governments commit to protecting and ensuring

childrens rights and to holding themselves accountable for this commitment before the

international community

Even though the practice of capital punishment on juveniles is relatively rare however in clear

contravention of international law nine countries have executed offenders who were juveniles at

the time of their crimes between 1990 and 2005136

These countries include the Peoples Republic

of China (PRC) the Democratic Republic of the Congo Iran Nigeria Pakistan Saudi Arabia

Sudan the United States and Yemen137

The USA has since moved to implement a ban on capital

punishment for juveniles However in most other countries of the preceding list the practice is

still enshrined in the judicial system Iranlsquos record in particular has been abominable over the last

decade It has carried out 39 executions of persons under the age of 18 since 2005 Presently

over a hundred individuals are placed on death row for crimes committed as juveniles The

executions of Mahmoud Asgari Ayaz Marhoni and Makwan Moloudzadeh became international

symbols of Irans child capital punishment and the judicial system that hands down such

134

httpwww2ohchrorgenglishlawcrchtm 135

httpwww2ohchrorgenglishlawccprhtm 136

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf - This document by the Human Rights Watch

called The Last Holdoutslsquo is a good summary of juvenile executions and should be reviewed 137

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 - Contains a list with

statistics and details of countries which have allowed the imposition of death sentence to juveniles

UNHRC 35 of 44

sentences138139140

Saudi Arabia and China too have questionable records that need to be

scrutinized further

While regional treaties and charters usually substantiate international law the Arab Human

Rights Charter of 2004 is unique among regional and international treaties in that the ban on the

juvenile death penalty in it is not absolute but merely optional141

Furthermore national laws in states that observe such a practice are in violation of

international legally-binding charters In Iran and Saudi Arabia laws usually treat a child the

same way as an adult criminal offender would be treated Article 10(3) of the International

Covenant on Civil and Political Rights emphasizes the need for demarcation between the

handling of children and that of adults in stating ―Juvenile offenders shall be segregated from

adults and be accorded treatment appropriate to their age and legal status142

The definition of a child in these Muslim states is unclear as adulthood is associated with

attainment of puberty which is a relative concept The Committee on the Rights of the Child in

January 2005 censured the Saudi government for its practice of imposing the death penalty on

juveniles terming it a serious violation of the fundamental rights The committee was deeply

alarmed over the discretionary power judges hold to treat juveniles as adults as was stated in

the committeelsquos report Iran too was strongly condemned following the release of an

international report highlighting the dire situation in Iran by the International for Human Rights 143

138

httpwwwfoxnewscomstory0293329798200html 139

httpnewsbbccouk2himiddle_east7130380stm 140

httpenwikipediaorgwikiCapital_punishmentIran 141

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 142

httpwww2ohchrorgenglishlawccprhtm 143

httpwwwfidhorgIMGpdfRapport_Iran_finalpdf

UNHRC 36 of 44

On August 19 2008 Iranian authorities executed Seyyed Reza Hejazi at Isfahan Central Prison

for his role in a murder committed in 2003 when he was 15 Hejazi was tried as an adult by

Branch 106 of the Isfahan General Court even if he did not qualify as one under international

stipulations and sentenced to death on November 14 2005144

In Saudi Arabia Mu`id bin

Husayn bin Abu al-Qasim bin `Ali Hakami was executed on July 10 2007 for a murder he

allegedly committed three years earlier when he was 13 years old145

The judges in these states

because of the implementation of the Sharialsquo law have a large amount of discretion with regard

to their rulings This discretion is often abused in the interrogation and judicial proceedings In

Pakistan authorities hanged Mutaber Khan in Peshawar Central Prison on June 13 2006 on

charges of murder of five people The fact that he was held in the juvenile wing of Peshawar

Central prison and the evidence presented by the accused confirming that his age was below 18

at the time of the killings were not taken into account during the trials and Mutaber was charged

as an adult in the case146

While the above does not cover exhaustively the practice of capitally punishing juveniles the

committee is expected to be well read on the matter The committee will be required to devise

ways to strictly apply the existing international law on the subject to curtail further deaths of

juveniles by states A series of recommendations on better implementation of international

covenants will be expected from the committee Delegates at UNHRC will also have to

familiarize themselves with the stipulations in the national laws of countries practicing juvenile

death penalties (Iran Saudi Arabia Pakistan Nigeria Sudan Yemen and UAE among others) to

discuss how these states are constitutionally able to bend international law and mete out the

illegal punishments

144

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 145

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 146

See FIDH and Human Rights Commission of Pakistan ―Slow march to the gallows and ―Condemned Prisoner

Executed Dawn Newspaper Karachi June 14 2005 httpwwwdawncom20060614nat16htm

UNHRC 37 of 44

Universality of Laws Incurring the Death Penalty

In countries which have not abolished the death penalty capital punishment may be imposed

only for the most serious crimes it being understood that their scope should not go beyond

intentional crimes with lethal or other extremely grave consequences

- Safeguards guaranteeing protection of the rights of those facing the death penalty147

Laws incurring the death penalty or capital crimes have certain uniformity the world over This

is of course barring states that are religiously affiliated and whose law systems are not secular

in nature The list of capital crimes for those states with non-secular legal systems is slightly

different The Human Rights Commission had decided that the imposition in the State party of

the death penalty for offences which cannot be characterized as the most serious including

apostasy committing a third homosexual act illicit sex embezzlement by officials and theft by

force are incompatible with Article 6 of the Covenant Economic offences including

embezzlement drug related offences political offences and robbery were also referred to148

The reason why looking into capital crimes and trying to garner a global impression of them is

important is that the death penalty can only realistically be abolished in a piecemeal way This

process will entail shortening the list of capital crimes The UN formally notes that ―in order

fully to guarantee the right to life provided for in article 3 of the Universal Declaration of

Human Rights the main objective to be pursued is that of progressively restricting the number of

offences for which capital punishment may be imposed with a view to the desirability of

abolishing this punishment in all countries149

The first established death penalty laws date as far back as the Eighteenth Century BC in the

Code of King Hammaurabi of Babylon which codified the death penalty for 25 different crimes

By the 1700s 222 crimes were punishable by death in Britain including stealing cutting down a

tree and robbing a rabbit warren In the 19th

century the death penalty was eliminated for over

100 of the 222 crimes punishable by death 150

In modern times the UN Special Rapporteur on

extrajudicial summary or arbitrary executions has stated that the death penalty should be

eliminated for economic crimes and drug-related offences and that the restrictions to its use

―exclude the possibility of death sentences for so-called victimless offences ndash including acts of

treason espionage and other vaguely defined acts usually described as crimes against the Statelsquo

or disloyaltylsquo and ―actions primarily related to prevailing moral values such as adultery and

prostitution as well as matters of sexual orientation151

147

httpwww2ohchrorgenglishlawpdfprotectionpdf 148

httpwwwunhchrchtbsdocnsf0bc310a747155dff88025655300537faeOpendocument 149

General Assembly resolution 2857 httpwwwunodcorgpdfcompendiumcompendium_2006_part_01_05pdf 150

httpdeathpenaltycurriculumorgstudentcabouthistoryhistoryPDF 151

httpswwwabofimedia24259report10pdf

UNHRC 38 of 44

Contrary to the made recommendations even political dissent warrants a death sentence in

several countries most notably in China and Iran In 2010 nearly 20 Kurdish people were

executed for political offences in Iran The country is known for keeping dissent especially from

the Kurds suppressed Most are executed on the grounds of moharebeh or enmity against God

Moreover challenging the power of the Ayatollah is also punishable by death These charges are

neither explicit nor in line with international guidelines over what crimes are punishable

capitally In Iran judges must handle such cases carefully as Iranian law provides for only one

punishment if an individual is found to be guilty of treason Libya too thwarts political dissent

with firm laws in place for punishing by death those who illegally form groups organizations or

associations against the state152

Saudi Arabia too is worth note for its vaguely phrased laws governing capital punishment

Intentional murder and crimes that spread ―mischief in the land (Fasad fil-ardh) merit death In

2010 the government announced that it had executed 26 people all by beheading Crimes that

―spread mischief include witchcraft and sorcery153

How is one convicted of witchcraft in the

21st century What can the international community do when regarding countries such as these

Treason arguably along with murder is the capital crime that has yet to be phased out by many

countries In some such as Brazil treason during warfare is the only crime for which a person

can be sentenced to death In the Gaza Strip under Hamas any sort of cooperation with Israeli

forces during military actions is also punishable by death In others including Algeria Bahrain

Iran and Malaysia treason is punishable by death in all circumstances The United States too has

federal laws governing treason under which traitors ―shall suffer death154

Child sex abuse is another crime that is widely held to merit the death penalty In Russia for

example according to the Russian Public Opinion Research Center an overwhelming majority

consider the death penalty to be an acceptable punishment especially in relation to molestation

155 In 2009 however Russias Constitutional Court effectively abolished the death penalty by

extending indefinitely a 13-year-old moratorium on capital punishment156

Indonesia has some of the strictest penalties for drug related crimes in the world Roughly half of

those on death row are incriminated with drug-related charges157

In 2008 though the most high

profile executions were of terrorists Three of those found responsible for the 2002 Bali

bombings were executed by shooting158

Generally speaking however a significant proportion of

152

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 153

httpwwwstategovgdrlrlshrrpt2010nea154472htm 154

httpdeathpenaltyproconorgviewresourcephpresourceID=1172 155

httpenrianrutrenddeath_penalty 156

httpwwwreuterscomarticle20091119idUSLJ330478 157

httpwwwnytimescom20080711worldasia11iht-indo114421132html 158

httpnewsbbccouk2hiasia-pacific7718246stm

UNHRC 39 of 44

the executions or death sentences recorded (in 2010) in China Egypt Indonesia Iran Laos

Libya Thailand United Arab Emirates and Yemen were for drug-related offences In December

2010 the amended Anti-Narcotics law came into force in Iran extending the scope of the death

penalty to include additional categories of illegal drugs (for example crystal meth) possession

of which became punishable by death Also around the same time the National Assembly of

Gambia voted to extend the scope of the death penalty by making the possession of more than

250g of heroin or cocaine an offence punishable by death159

Several states allow for the death penalty for crimes of blasphemy and other crimes for

nonviolent expression and association In Pakistan Aasia Bibi a Christian mother of five was

charged with blasphemy and sentenced to death after a trial largely believed to be unfair on 8

November 2010 She is currently on death row The country is also noted for its laws concerning

capital crimes The list includes 27 crimes most of which go beyond the notion of ―most serious

crimes as recommended by the International Covenant on Civil and Political Rights Extra-

marital sex and blasphemy are examples of some capital crimes in the country In December

2007 Pakistan voted against a United Nation General Assembly resolution for a moratorium on

the death penalty The year before however the nation amended its law on rape and adultery

charges which are no longer punishable by death160

As far back as 1989 recommendations have been made as to how to abolish the death penalty

Member states (of the UN) have been urged ―to publish for each category of offence for which

the death penalty is authorized and if possible on an annual basis information about the use of

the death penalty including the number of persons sentenced to death the number of executions

actually carried out the number of persons under sentence of death the number of death

sentences reversed or commuted on appeal and the number of instances in which clemency has

been granted and to include information on the extent to which the safeguards referred to above

are incorporated in national law161

The committee must inspect how far this recommendation

has been adopted and should seek to rectify the weaknesses in the system of gradually

abolishing the death penalty Can a target year be designated by which crimes meriting the death

penalty could be made universal How can countries with non-secular legal systems be brought

into the fold of international law

159

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 160

httpwwwfiacatorgenIMGpdfdppakistan-enpdf 161

httpgraduateinstitutechfacultyclaphamhrdocdocsecosocresolutiondeathpen1989html

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 21: UNHRCFINAL

UNHRC 17 of 44

The censured freedom of expression is one of the multiple infringements on rights that are

imposed by China on Tibet Tibetans are denied the basic right to articulate their views through

political discourse Human rights activists advocate the freedom of speech for Tibetans under the

existing and future political arrangements Religious and political figures in Tibet are placed

under house arrest limiting their freedom of movement (in contradiction to article 13 of the

Universal Declaration of Human Rights)62

As was highlighted during the unrest in 2008 China

has often stripped the Tibetan population of its fundamental rights to associate and assemble In

2000 nine Tibetan prisoners in Kandze were charged for participating in a peaceful protest to

five-year prison terms in October 1999 (which were later increased to ten-year terms)63

This example leads us to another crop of abuse conducted overtly by Chinese authorities

arbitrary detention Article 9 of the Universal Declaration of Human Rights reads ―No one shall

be subjected to arbitrary arrest detention or exile64

Chinese law however permits authorities

to detain persons without formally arresting or charging them and persons may be sentenced

administratively to up to 3 years in reeducation-through-labor camps and other similar facilities

without a trial

Chinese authorities have been unresponsive to concerns expressed by the United Nations

Working Group on Arbitrary Detention No counter-explanation was given either over the case

of three Tibetans who had their sentences extended for staging a peaceful political protest during

the Working Groups visit to Drapchi in October 1997 despite international pressure65

Infinite

examples of arbitrary arrests and detentions exist in China international authorities have called

on China to cease this practice and release such detainees immediately absent evidence that they

have engaged in criminal acts No state can or should be able to hold anyone for engaging in

peaceful political activity All humans

should be granted internationally recognized

due-process protections which includes the

right to be informed of the charges leveled

against them66

The question of whether

these detainees are given an impartial trial if

one at all is not even raised

In addition to the arrests carried out in

violation of international law there are

grave evidences of abuses during detention

62

httpwwwhrworgnews20000612human-rights-violations-tibet 63

Ibid 64

httpwwwunorgendocumentsudhr 65

httpwwwhrworgnews20000612human-rights-violations-tibet 66

httpwwwhrworgnews20000612human-rights-violations-tibet

UNHRC 18 of 44

Incidences of beatings at time of arrest and torture (including the administration of electric

shocks and deprivation of food and medical treatment)67

during custody are widely reported

These are not isolated cases rather the product of a holistic policy of dealing with political

dissidents In one notable incident in May 1998 political prisoners in Drapchi staged major

protests to coincide with a visit from a European Union delegation The protests were non-

violent but the authorities reaction was severe several protestors were shot at and one monk

Lobsang Gelek subsequently died68

The Convention Against Torture (CAT ratified by China in 1988) requires the state to prevent

torture and punish those in violation of the law China has not amended its own laws to comply

with even the first article of CAT69

Such practices explicitly stand in contempt of Article 5 of

the Universal Declaration of Rights which censures the use of torture or cruel treatment as

punishment Dr Manfred Nowak the UN Special Rapporteur on Torture stated that ―he was

struck by the strictness of prison discipline and a palpable level of fear and self-censorship when

talking to detainees following his brief assessment of Chinese and Tibetan prisons in 200570

The committee will be looked upon to review ways in which the situation can be monitored more

carefully and what responses if any can be cultivated to impede similar future actions by

China

The continued violations of religious freedom and implementation of policies designed to

diminish religious practices by the State to serve its political needs is a cause of concern Again

referring to the Universal Declaration of Human Rights Article 18 reads ―Everyone has the right

to freedom ofhellipreligion this right includes freedomhellipto manifest his religion or belief in

teaching practice worship and observance71

The policies implemented by Chinese authorities

through use of coercion violent repression and imprisonment impinge upon the freedom of

Tibetans to practice their religion freely China has also strictly enforced re-education programs

for dissident factors within the state The program is aimed at ―combating separatism protecting

stability and promoting development and is intended to reform the political ideology of people

who refuse to accept state control of what they perceive as vital aspects of their religious lives

and beliefs The committee will be expected to deliberate upon the protection of religious

freedom and practices of individuals as well as the validity of these re-education programs in

light of human rights and liberties

Tibet is not the only region where political tensions surrounding autonomy run high The

Kosovo-Serbian conflict is pertinent to recall The Republic of Kosovo declared itself to be an

independent entity on February 17 2008 As of 11 October 2011 85 UN states recognize the

independence of Kosovo However Serbia maintains that Kosovo is a UN governed entity under

67

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 68

httpwwwfreetibetorgabouttorture 69

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 70

Ibid 71

httpwwwunorgendocumentsudhr

UNHRC 19 of 44

its sovereignty Russia and China are among those who do not recognize the Republic while the

USA UK and France have recognized Kosovolsquos declaration of independence This highlights the

rift between the United Nations Security Council over the issue The case of Tibet is all the more

important in light of the fact that many such pockets exist in the world struggling for self-

determination

Media Links

httpwwwfreetibetorgnewsmedia2008-protests-summary

httpwwwguardiancoukworldgallery2008mar19tibetchinapicture=333178281ampindex=7

Chinarsquos Violation of Ethnic Minority Rights

One of the greatest blemishes on Chinalsquos human rights record is in the area of ethnic minorities

and the extent to which China protects ethnic minority rights On paper Chinalsquos policies are

based on ethnic equality and regional ethnic autonomy Ethnic minorities are supposed to be

benefitting from preferential policies in the political economic cultural and educational spheres

However the ground realities are infinitely different Questions have been raised over the extent

to which the government fairly provides services to these minorities and allocates resources

equally to them The Chinese government is seen to largely prefer its Han majority The

minorities claim they are exploited for their resources and in turn not even provided with the

same level of social services as the Han people China is an atheistic government and the fact

that many ethnicities garner their identity in major part from their religious affiliation leads to a

precarious situation The Mongols Tibetans and Uighurs all come to mind when discussing the

issue of China and ethnic minority rights

―Everyone is entitled to all the rights and freedoms set forth in this Declaration without

distinction of any kind such as race colour sex language religion political or other opinion

national or social origin property birth or other status Furthermore no distinction shall be

made on the basis of the political jurisdictional or international status of the country or

territory to which a person belongs whether it be independent trust non-self-governing or

under any other limitation of sovereignty

- Article 2 Universal Declaration of Human Rights

The International Convention on the Elimination of Racial Discrimination defines racial

discrimination as any distinction exclusion restriction or preference based on race colour

descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the

recognition enjoyment or exercise on an equal footing of human rights and fundamental

UNHRC 20 of 44

freedoms in the political economic social cultural or any other field of public life72

It is due to

this that the international community has adopted the norm of subsuming ethnicity under the

terminology of race

―The Peoples Republic of China is a united multi-ethnic country So far 56 ethnic groups have

been identified and recognized by the central government The population of various ethnic

groups differs greatly While the Han ethnic group has the largest population and that of the

other 55 ethnic groups is relatively small so they are customarily referred to as ethnic

minoritieslsquo According to the fifth national census conducted in 2000 the population of all the

55 ethnic minority groups totaled 10449 million accounting for 841 percent of the total

population of China73

Chinas official 55 minorities are located primarily in the south west

and north of China Only Tibet and Xinjiang have a majority population of official minorities

while all other provinces municipalities and regions of China have a Han majority

One of Chinalsquos autonomous regions is the Xinjiang Uighur Autonomous Region (XUAR)

located in western China The area is vast accounting for one sixth of Chinalsquos land and houses

around 13 major ethnicities including the Uighurs who are a predominantly Muslim people with

origins in Central Asia The Uighurs have had strained ties with the state and have often resisted

Chinese authority74

In turn the Chinese government has reacted sometimes violently against

restless factions in the region One of the most passive aggressive forms of response on the part

of the Peoplelsquos Republic has been the encouragement of the migration of the Han people ndash

Chinalsquos ethnic majority ndash to the XUAR75

Around 90 of Xinjiangs population comprised of

Uighurs in 1949 now it is estimated that Uighurs make up only about 45 of the population76

The policies in Xinjiang are said to be designed to ―promote economic development not

demographic change In reality though the influx of migrants has amplified Uighur discontent

as Han and Uighurs compete over limited jobs and natural resources77

The United Stateslsquo

Congressional-Executive Commission on China reported that in 2006 the XPCC (Xinjiang

Production and Construction Core) reserved approximately 800 of 840 civil servant job openings

for Han Chinese78

One of the causes of the Han monopoly in the employment sector is the

linguistic advantage afforded to them and perpetuated by the education system As part of its

efforts to implicitly impose a unified culture the language policy was altered by the state with

an increased focus on use of Mandarin in schools at the expense of the local languages

Methods of education special to the ethnic peoples of the XUAR including the Muslim Uighurs

are suppressed For example a campaign by the PRC in 2001 targeted religious teachers and

72

httpwww2ohchrorgenglishlawcerdhtm 73

httpenglishgovcnofficial2005-0728content_18127htm 74

httpwwwcfrorgchinaeast-turkestan-islamic-movement-etimp9179 75

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p8 76

httpnewsbbccouk2hiasia-pacific3330803stm 77

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p4 78

httpwwwcolumbiaeducunewsclips20080801UighursTWPOSTpdf

UNHRC 21 of 44

endeavored to sever ties between mosques and groups involved in allegedly ―separatist

activities Around 8000 imams were required to undergo ―political reeducation in this regard

and become ―patriotic religious personalities Ethnic minorities are educated in ways that do not

allow them to learn their own languages or practice their own religion In 2001 for example a

Muslim girl was expelled from school for praying 79

Moreover in an attempt to further its socialist agenda and bind ethnic minorities together

minority cultural activities are often hindered In its place nationalistic values are given a

premium and integrated into society so as to tie the entire country in a unified Chinese foldlsquo

Resultantly an asymmetry with regards to the provision of services and protection of cultural

identity can be found in almost every ethnic minority region in the country The repression

against minorities has wider implications on the human rights situation for all This leads to

creation of a vindictive attitude among the minorities not only against the government but also

the Han majority

In July 2009 this attitude manifested itself in

the form of severe riots between the Han and

Uighur communities in Xinjianglsquos capital city

Urumqi Ethnic tensions elevated to the point

that police involvement was made necessary

According to Chinese state media at least 150

people were killed and more than 800 were

injured The riots were reportedly sparked by a

Uighur protest over the ethnically motivated

killing of two Uighur workers in the southern

province of Guangdong

On the topic of allegations of separatism it is interesting to note that post 911 it has been noted

that the Chinese government has used concerns about terrorism as a method for suppressing

ethnic activity This is possible through the characterization of certain ethnicities as having

fundamental leanings The Muslim Uighurs fell under fire for this very reason after the

September 2001 attacks

One of the ways that the Chinese government with its Han leanings has asserted its presence in

the region is through the smokescreen of the XPCC The Peoplelsquos Liberation Army and the

XPCC are present in the region per the government to ―consolidate border defense accelerate

79

wwwminorityrightsorgdownloadphpid=29 Page 30

UNHRC 22 of 44

Xinjianglsquos development and reduce the economic burden on local governments and the local

people of all ethnic groups80

The heavy militarization of ethnic minority

regions also enables the Chinese government

to quickly respond to skirmishes between the

minorities and the Han For example clashes

between the Uighurs and the Han in the

XUAR are quickly clamped down upon The

response by Chinese authorities always

focuses on the minority groups in the region

The typical response includes a period of

strike hardlsquo security measures during which the minorities are subjected to police patrols of

crowded areas identity checks street searches increased criminal investigations and accelerated

trials The measures also include mandatory political indoctrination classes for the Uighur

population Swift Chinese response to ethnic dissidence precludes the possibility of trying

protestersrioters under due process This phenomenon also contributes to the controversy of

China and its policy of arbitrary imprisonment

Essential to any countrylsquos social progress is the protection and provision of the basic rights to all

its citizens For a country like China which has a significant standing in the international

community the degree to which human rights are upheld comes under added scrutiny Minorities

need to be guaranteed provision of not only fundamental rights but additional ones that grant

them equal opportunities

Recent Developments

3 November 2010 UN Secretary General pushes China on human rights

Ban Ki-moon the United Nations secretary general has called on China to respect human rights

after critics accused him of dodging the issue on a trip to Beijing The UN secretary general met

Hu Jintao the Chinese president but failed to challenge Mr Hu on the imprisonment of Liu

Xiaobo the democracy activist who was awarded this years Nobel Peace prize and raise the

issue of human rights81

80

httpwwwchinaorgcne-white200305269htm 81

httpwwwtelegraphcouknewsworldnewsasiachina8107148UN-Secretary-General-pushes-China-on-human-

rightshtml

UNHRC 23 of 44

5 November 2011 Yeqing Ji from Shanghai China will most likely not be able to have children

after she said two forced abortions physically impaired her uterus82

8 September 2011 The Chinese government has renewed Googlelsquos license to allow it to

continue operating its local website in the country83

13 November 2011 Seven months ago

Chinese police detained the countrylsquos most prominent artist Ai Weiwei at the airport and drove

him to a hidden location It was the beginning of what is to be a two-and-a-half month nightmare

for the architect and sculptor who is also a former darling of the Communist Party who later

turned into an outspoken government critic Ai was held on vague charges of economic crimes

was kept in isolation and subjected to Kafka-esque interrogations84

April 19 2011 Amnesty International a 21-year-old monk Phuntsog set himself on fire in an

apparent anti-government protest in March 2011 Instead of putting out the flames Chinese

police beat the young monk creating huge resentment in the monastery85

At least 11 ethnic

Tibetans have been detained for protesting against the event and against government policies

They are at risk of torture and other ill-treatment86

29 May 2011 300 Tibetan monks detained in Kirti monastery by Chinese security forces87

15 September 2011 Chinese Uighurs economic fears

Amid ethnic tensions minority regards modernization plans in Xinjiang as favoring Han Chinese

migrants88

20 November 2011 Another of Chinalsquos minorities the Hui Muslims in Ningxia do not feel

stigmatized

―There is an important reason why Hui and Han Chinese get along with each other Unlike

Muslims of the other ethnic minorities like Uighur Kazakh Kyrgyz and Tajik the Hui Muslims

speak Mandarin just like the Hans89

82

httpabcnewsgocomBusinesswoman-china-forced-abortions-leaves-unable-

childrenstoryid=14880884Tsia7LIk6so 83

httpwwwbbccouknewsbusiness-14832392 84

httpwwwthedailybeastcomnewsweek20111113ai-weiwei-speaks-out-on-his-detentionhtml 85

httphradvorgaggregatorsources10 86

httpwwwamnestyorgenlibraryassetASA170212011end75f7611-be66-4d5a-9391-

c80c43501d56asa170212011enhtml 87

httphumanrightshouseorgArticles16503html 88

httpwwwaljazeeracomvideoasia20110920119158016969449html 89

httpwwwtodayszamancomnews-263322-chinas-hui-muslims-do-not-feel-stigmatizedhtml

UNHRC 24 of 44

Conclusion

The United Nations Human Rights Council at LUMUN 2012 will be looked upon to provide a

framework for the resolution of these issues in a universal context The scope of the issues

should be expanded and applied to countries other than China The committee will have to make

recommendations which have universal application and resolve all aspects of the issue

comprehensively For any queries related to the study guide please do contact either (or both)

the committee directors at the given addresses

UNHRC 25 of 44

Topic Area B Abolishing the Death Penalty

Introduction to the Topic Area

The death penalty is formally defined as the execution of an offender sentenced to death after

conviction by a court of law of a criminal offenselsquo90

The concept of a capital crime is subjective

and states have made use of this practice in response to multiple forms of crime The use of the

death penalty has produced much controversy with regard to its apparent violation of

fundamental human rights as delineated in the Universal Declaration of Human Rights and

subsequent human rights charters and treaties It is asserted that the use of death penalty is in

contravention to the peopleslsquo right to life promised to every individual under Article 3 of the

Declaration91

Moreover Article 2 of the Charter of Fundamental Rights of the European Union

lucidly bars the imposition of death penalty as a form of punishment92

Arguments against the

use of death penalty are also made on the grounds of inhumane methods which are employed to

see out the process Historically multiple methods have been used which include death by

hanging severing of the head lethal injection shooting and electrocution93

94

As a response states have made keen efforts to abolish

the death penalty particularly in the last two decades as

can be interpreted from the graph on the right which

represents the number of states that have abolished the

death penalty Countries belonging to the European

region with the exclusion of Russia and Belarus have

sought to revoke the use of the practice The death

penalty is most commonly seen to be a formal practice

in most of the developing countries The trend is

apparent in Latin America Africa and Asia

96 countries have formally abandoned the use of death penalty 58 countries allow the use95

Other states have abolished the penalty in practice but the laws remain in place for the

imposition of the penalty as a response to certain crimes The imposition of the death penalty has

90

httpwwwbritannicacomEBcheckedtopic93902capital-punishment 91

httpwwwunorgendocumentsudhr 92

httpwwweuroparleuropaeucharterpdftext_enpdf 93

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffle

re-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 94

httpwwwdeathpenaltyinfoorgmethods-execution 95

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf

Figure 1 (Drag to enlarge)

UNHRC 26 of 44

seen a decline over the recent years with a fall in the number of executions that take place

annually It would however be incorrect to assume that the practice is not prevalent or widely in

effect Amnesty International reported that at least 2024 new death sentences were imposed in 67

countries in 2010 Moreover there were at least 17833 people sentenced to death worldwide at

the end of 201096

Again these are minimum figures which are the safest that can be inferred

from the given research There were 527 known executions carried out in 2010 globally97

This

figure however does not include the number of executions that took place in China where

analysts believe that more than a thousand people were put to death in the past year

The statistics represent the number of people executed through capital punishment One way to

formally define capital punishment is to regard it as the state sanctioned killing of an individual

through a judicial process as a punishment for a crime (defined as a capital crime by the state)98

Capital punishment is the most obvious and prevalent manifestation of the death penalty It is

often perceived as a statelsquos right in order to preserve law and order against any individual who

engages in serious crimes that threaten other individuals or the state Those who advocate against

the use of capital punishment label it as a symptom of a culture of violence not a solution to

itlsquo99

The controversy surrounding the topic is based on the legal ethical and moral acceptability

of the statelsquos right to an individuallsquos life The debate entails several social and economic factors

some of which will be reviewed in closer detail in the relevant section of this guide

One of the most striking aspects related to the issue is the imposition of the capital punishment

on juveniles The sentencing of juveniles to death is in clear breach of international law The

morality and validity of such a practice is often called into question and has been put under

relentless scrutiny despite all of which the practice is still carried out in a number of countries

Historically the United States China and Iran have the worst records relating to juvenile death

sentences100

The study guide also includes a separate section for the case of juveniles in which

the legal and social aspects of the problems are detailed

As stated states have made use of the death penalty to punish crimes of varying natures The use

of the death penalty is reserved for only the most seriouslsquo crimes as put forth in international

law101

The notion of a capital crime however is a subjective one states that have doled out

death sentences have defined it differently In certain countries the death penalty is only used to

charge criminals accused of war crimes In other countries the penalty is reserved for crimes like

96

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf 97

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010 98

httpusersrcncommwooddeathpenhtml 99

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 100

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 101

httpwwwunorgdocumentsecosocdocs1995e1995-78htm

UNHRC 27 of 44

murder rape or even robbery States also use the death penalty against individuals who are guilty

of treason The issue however is that many states practicing the death penalty impose the

punishment even when the crimes do not meet the threshold for the aforementioned most

seriouslsquo crimes The ability of states to define what constitutes as a capital crime has led to states

abusing their powers as has been observed in the sentences ordained by military courts

Moreover even the radicals who make the argument of the punishment fitting the crime agree

that in many instances individuals have been executed for softlsquo crimes crimes that were

certainly not tantamount to charges of murder or crimes against humanity The issue of apparent

violations of human rights is further exacerbated in these instances The study guide will discuss

the universal crimes that have resulted in the awarding of the death penalty and examine the

issue further The committee will be expected to discuss the feasibility of drawing up an

international definition of crimes which in isolated instances perhaps may be appropriate for a

sentence like the death penalty

Another pertinent aspect surrounding the debate is that of extrajudicial killings The execution of

a person by state authorities without the authority of a judicial proceeding is termed as an

extrajudicial killing Many states have used extrajudicial killings to establish their authority and

order without having to wade through the legal process By doing so they have deprived scores

of people of their fundamental right to free and fair trials Governments have also employed this

tactic to exercise political aggression and to suppress dissent A particular point of concern is the

fact that some states have made use of these killings even when they have officially revoked the

imposition of the death penalty Extrajudicial killings are carried out persistently in many

countries ndash the list includes countries like Iran Iraq Israel Philippines102

Most recently the

killing of Anwar al-Awlaki and Samir Khan in Yemen by a sanctioned National Security Council

move by the USA was an example of states embarking on such paths to eliminate threats to

national securitylsquo103

102

Multiple citations for each country can be found in the second paragraph article titled Extrajudicial killinglsquo on

Wikipedia 103

httpwwwtelegraphcouknewsworldnewsbarackobama7564581Barack-Obama-orders-killing-of-US-cleric-

Anwar-al-Awlakihtml

UNHRC 28 of 44

Wrongful convictions lead many to believe in the inherent incapacity of the death penalty to

serve justice On September 21 2011 US citizen Troy Davis was executed in Georgia after

which seven of the nine witnesses who testified against him in the case that led to his execution

recounted or retracted their evidences A petition with nearly one million signatures was put

forth to reconsider his case it was rejected On the same day a 17 year old boy was publicly

hanged in Iran for killing a popular athlete his justification based on self-defense was ignored

Also on the same day a Pakistani national was executed in China on grounds of drug trafficking

an offence that does not often result in capital punishment The need for the resolution of this

issue is pressing and the committee needs to deal with all aspects of the problem in a

comprehensive and enduring manner104

Capital Punishment

In 2010 23 countries implemented capital punishment A total of 527 executions (plus the 1000+

carried out in China alone) were known to have taken place with Iran Yemen USA and North

Korea meting out a significant number of sentences105

The figure is lower than the records

computed for years past There are more states which are now abolitionist either in law or in

practice with regard to the imposition of the punishment Gabon was officially the last country

to rescind the practice while bills calling for an end to capital punishment have been presented

to parliaments in Lebanon Mali Mongolia and South Korea106

Renewed efforts are

104

httpwwwamnestyorgennews-and-updatesus-executes-death-row-prisoner-troy-davis-2011-09-21 105

httpwwwguardiancouknewsdatablog2011mar29death-penalty-countries-world 106

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010

UNHRC 29 of 44

simultaneously being made on the international front to implement laws against capital

punishment A third resolution establishing a moratorium on the use of death penalty passed the

UN General Assembly on December 21 2010107

Despite the increasing momentum towards an eventual elimination of the practice the number of

executions taking place annually is a cause of major concern Advocates of the death penalty

assert that the practice is an effective means of deterring crime in society Public executions are

often held in Iran Afghanistan and Palestine for example to demonstrate the fate awaiting

those who commit similar crimes108

Arguments are made on the grounds of justice that it is

proper and fair to take an eye for an eye and a life for a life and that some individuals deserve

it for the crimes they commit

Those opposing the practice question the morality of an action sanctioned by the state which

endorses deprivation of the right to life a fundamental human right under the Universal

Declaration of Human Rights109

There are inescapable flaws within legal systems which are

aggravated by discrimination prosecutorial misconduct and inadequate legal representation

Moreover the risk of executing the innocent can never be eliminated110

An alternative is

presented in the form of imprisonment for life without parole which results in a parallel debate

is imprisonment for life a viable surrogate to the practice of death penalty A thread from this

debate also relates to the economic feasibility of carrying out a death sentence as opposed to the

feasibility of imprisonment for life

Deterrence

Capital punishment is often propagated as an adequate approach in the deterrence and prevention

of crime The logic is that if murderers are sentenced to death potential murderers will think

twice before killing for fear of losing their own life The deterrence theory presumes that the

once the punishment for a certain crime is established the criminal by committing the crime

voluntarily assumes the risk of receiving the prescribed punishment for the crime Only when the

most severe punishment has been set will there be a possibility of an individual evaluating their

actions in light of the consequences111

107

httpwwwundemocracycomA-RES-62-149pdf 108

httpwwwamnestyorgennews-and-updatessharp-rise-public-executions-iran-executes-first-juvenile-

offenders-2011-2011-04-27 109

wwwunorgendocumentsudhr 110

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 111

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 30 of 44

The death penalty it is asserted ensures that convicted criminals do not offend again moreover

it is deemed to be a just penalty for atrocious crimes It is further alleged that many criminals

who are set free even after lengthy sentences regress and go on to commit heinous crimes

Therefore there should never be the possibility of a release clause112

The deterrence theory is modeled on the grounds of human psychology logic and rationale As a

professor of jurisprudence Ernest van den Haag PhD wrote ―Common sense lately bolstered

by statistics tells us that the death penalty will deter murder if anything can People fear nothing

more than death Therefore nothing will deter a criminal more than the fear of death These

statements were further validated by a US Supreme Court Justice who said on record that

Prima facie the penalty of death is likely to have a stronger effect as a deterrent to normal

human beings than any other form of punishmentlsquo113

Numerous studies have been conducted on

the subject with varying results One of the most established studies was conducted in USA

using a panel data set of over 3000 counties from 1977 to 1996 which concluded that on

average one death sentence resulted in 18 fewer murders114

Delegates will be expected to be

familiar with other similar studies

These studies are commonly refuted as not crediblelsquo by opponents of the capital punishment

who also deny the correlation between crime and death penalty as a fabricated relationship which

cannot be empirically established115116

A study of the relationship between capital punishment

and the incidence of murder was conducted for the UN in 1988 and updated in 2002 The

conclusion was ―The investigation has not provided scientific proof that executions have more

deterrent effect than life imprisonment It is unlikely that such evidence will ever come

Deterrence hypothesis finds no support in the survey117

Another counter-argument asserts that crime is still a persistent feature of the societies that

continue to award the death penalty while many of the abolitionist states enjoy low crime rates

This can be evidenced by comparing the crime rate in USA or Pakistan with that of Canada or

some European state In Canada for example the homicide rate per 100000 fell from a peak of

309 in 1975 the year before the abolition of the death penalty for murder to 241 in 1980 and

in 2003 27 years after abolition the homicide rate was 173 per 100000 44 per cent lower than

in 1975118

112

httpwwwdeathpenaltyinfoorgfacts-about-deterrence-and-death-penalty 113

httpdeathpenaltyproconorgviewresourcephpresourceID=002000 114

httpdeathpenaltyproconorgsourcefilesThe20Deterrent20Effect20of20Capital20Punishmentpdf ndash

Delegates should carefully examine certain parts of this document to establish the credibility of the assertions made

They should also invest in trying to locate studies that refute the assertions made in this and similar studies 115

httpwwwdeathpenaltyinfoorglaw-enforcement-views-deterrencelawenforcement 116

httpwwwdeathpenaltyinfoorgDonohueDeterpdf 117

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 118

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml

UNHRC 31 of 44

The lack of evidence on the production of a unique deterrent effect points to the danger of

relying on the deterrence hypothesis as a basis for public policy on the death penalty

Retribution amp Morality

An important terminology that delegates need to familiarize themselves with is that of

―retributivism119

It is defined as ―a policy of criminal justice that sponsors the punishment of

criminals in retribution for the harm they have inflicted120

Criminals deserve to be punished in

proportion to the gravity of their crime regardless of whether the victim or anyone else desires

it we may all deeply regret having to carry out the punishment but consider it warrantedlsquo is

what many say in defense of the theory121

The need for the establishment of a visibly just state arises from the potential risks of not having

one As has been visible in many developing countries with shaky legal systems when criminals

are not adequately punished for their unlawful behavior the public takes the law into its own

hands and deals out vigilante justice It is asserted that retributivism is essential for a functioning

society where individuals respect the supremacy of law

The concept of retribution in society is also grounded in religious beliefs The concept of an eye

for an eye has been a part of all three Abrahamic traditions However in the modern world it is

Islamic nations that still retain the practice based on these grounds Similar traditions can be

found in Hinduism Christianity and Buddhism as well as other religions in different parts of the

world In many non-secular countries the constitutions and state laws are derived from religious

doctrines

Opponents dismiss this aspect of the argument as being emotionally charged with little rational

logic to support the contention They claim that the establishment of capital punishment gives

birth to a culture of violence endorsed by the state It perpetuates the cycle of aggression and

brutality something which the state should be actively inhibiting not endorsing

Wrongful Convictions

The death penalty carries with it the danger of wrongfully convicting an innocent person for

crimes he did not commit There is the potential for capital punishment to evolve into sheer

miscarriage of justice as in certain circumstances states are often seen to rush the trials and

convict the accused hastily This practice takes foremost apparently in military courts often in

119

Cavadino M amp Dignan J (1997) The Penal System An Introduction (2nd ed) p 39 London Sage 120

httpdictionaryreferencecombrowseretributivism 121

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 32 of 44

the developing or lesser-developed countries where the system of law is not properly established

It is not however exclusive to these countries Examples can be drawn from countries like

Philippines Thailand Iran and Palestine to name just a few where executions are carried out at

alarming pace removing the possibility of reviews

On 15 August 2004 Atefah Rajabi Sahaaleh was hanged in a public square in the Iranian city of

Neka Her death sentence was imposed for adultery and crimes against chastity122123

Atefah

was executed a week after the trial was run Following the execution the Judge for the case was

arrested for investigation by the Intelligence Ministry The media reported that in addition to the

confession of his rape of Atefeh Judge Rezai who served as judge jury and executioner also

confessed to torturing her during interrogations to extract names of others she had relations with

No transcripts from court proceedings were recorded The State alleged that Atefah was 22 at the

time of her execution A witness later claimed The judge just looked at her body because of

the developed physique and declared her as 22124

ndash her birth certificate revealed she was born

in 1988 Furthermore Atefah did not have access to a proper defense where she could contest

charges leveled against her This is one example of many such cases of miscarriage of justice

Something that recurs in these cases is the failure of the police or prosecuting authorities to

prevent the use of unreliable witnesses the misuse of evidence or confessions and the provision

of inadequate defense representation The advent of DNA profiling and the use of it as positive

evidence in criminal cases has resulted in the exoneration of multiple death row inmates on

grounds of forensic evidence or lack thereof Since 1973 138 people have been released from

death row in the United States after it was proven that they were innocent125

In 2009 Paul

House was cleared of murder and exonerated in Tennessee USA after having served 22 years

on death row His innocence was proclaimed in light of substantial additional DNA testing and

further investigationlsquo 126

Amnesty International has noted examples of wrongful convictions from elsewhere as well

including Jamaica Japan China Nigeria and Tanzania127

Paul G Cassell a former law clerk to

the Chief Justice of USA stated the mistaken release of guilty murderers should be of far greater

concern than the speculative and heretofore nonexistent risk of the mistaken execution of an

innocent personlsquo highlighting the case made by those who advocate the death penalty even in

light of wrongful convictions128

122

httpwwwcosmolearningcomdocumentariesexecution-of-a-teenage-girl1 123

httpnewsbbccouk2hi5217424stm 124

httpnewsbbccouk2hi5217424stm 125

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 126

httparticlescnncom2009-05-13justicetennesseeexonerated_1_death-row-inmate-dna-evidence-house-

arrest_s=PMCRIME 127

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 128

httpdeathpenaltycurriculumorgstudentcaboutargumentstestimony3bhtm

UNHRC 33 of 44

Alternative to Death Penalty

All abolitionist states have reverted to the practice of sentencing criminals to life imprisonment

(some without parole) which is also termed as death by incarceration Widely regarded as a more

humane course of action life imprisonment is also alleged to be a more economical practice

While ensuring public safety by keeping criminals away from society this system also saves the

lives of innocent people who have been falsely or wrongfully convicted The setup inhibits and

curbs the cycle of violence while retaining the deterrence factor it is strongly asserted

Advocates for the death penalty are averse towards life imprisonment for a number of reasons

They cite the unreliability of the system as one of the flaws which impedes the possibility of

such a sentence being successful A certain James Moore serves as a valid example in this case

In 1962 James Moore raped and strangled 14-year-old Pamela Moss The victimlsquos parents opted

out of capital punishment for Moore and he was instead sentenced to life in prison without

parole Twenty years later a change in sentencing laws in 1982 renders James Moore eligible for

parole every two years129130

Kenneth McDuff is another example McDuff was convicted and sentenced to life imprisonment

Years later due to the issue of overcrowding in prisons McDuff was released following which

he killed eight more people McDufflsquos example is of an individual from a developed country

with an established legal system in place131

Overcrowding is a feature of prisons in developing

or lesser developed countries In many such states criminals have also been known to easily

break out from penitentiaries

The economic aspect of the debate is murky at best There is a lack of empirical data on the

subject which is why the arguments of both these sides cannot be settled beyond doubt

Advocates of capital punishment insist that the overall costs of the practice are far lesser than the

costs of housing an inmate for a lifetime132

They also suggest that the life imprisonment allows

criminals to conceive new habeas corpus petitions which on legal grounds cannot be rejected

automatically resulting in more trials

On the other hand substantial arguments are made which stress that the cost of legal proceedings

in capital cases is in truth more than that of other cases States and nations spend a significant

portion of the taxpayerlsquos money in meting out such punishments133

Delegates when addressing

this portion of the debate will need to be aware of the financial aspects of the issue as it forms

for many states an important part of whether capital punishment should be revoked or

not

129

httpwesleylowecomcphtmldeter 130

httpwwwnytimescomkeywordparole 131

httpwesleylowecomcphtmldeter 132

Ibid ndash view section titled Capital Punishment and its costslsquo 133

httpwwwamnestyusaorgour-workissuesdeath-penaltyus-death-penalty-factsdeath-penalty-cost

UNHRC 34 of 44

Imposition of Death Penalty on Juveniles

The prohibition on the death penalty for crimes committed by juvenile offendersmdashpersons under

age 18 at the time of the offensemdashis well established in international law specifically in the

Convention on the Rights of Child

ldquoNo child shall be subjected to torture or other cruel inhuman or degrading treatment or

punishment Neither capital punishment nor life imprisonment without possibility of release shall

be imposed for offences committed by persons below eighteen years of agerdquo134

- Article 37(a) Convention on the Rights of Child

ldquoSentence of death shall not be imposed for crimes committed by persons below eighteen years

of age and shall not be carried out on pregnant womenrdquo135

- Article 6(5) International Covenant on Civil and Political Rights

The treaties are a unanimously agreed set of non-negotiable standards and obligations By

acceding to the treaties and ratifying them governments commit to protecting and ensuring

childrens rights and to holding themselves accountable for this commitment before the

international community

Even though the practice of capital punishment on juveniles is relatively rare however in clear

contravention of international law nine countries have executed offenders who were juveniles at

the time of their crimes between 1990 and 2005136

These countries include the Peoples Republic

of China (PRC) the Democratic Republic of the Congo Iran Nigeria Pakistan Saudi Arabia

Sudan the United States and Yemen137

The USA has since moved to implement a ban on capital

punishment for juveniles However in most other countries of the preceding list the practice is

still enshrined in the judicial system Iranlsquos record in particular has been abominable over the last

decade It has carried out 39 executions of persons under the age of 18 since 2005 Presently

over a hundred individuals are placed on death row for crimes committed as juveniles The

executions of Mahmoud Asgari Ayaz Marhoni and Makwan Moloudzadeh became international

symbols of Irans child capital punishment and the judicial system that hands down such

134

httpwww2ohchrorgenglishlawcrchtm 135

httpwww2ohchrorgenglishlawccprhtm 136

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf - This document by the Human Rights Watch

called The Last Holdoutslsquo is a good summary of juvenile executions and should be reviewed 137

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 - Contains a list with

statistics and details of countries which have allowed the imposition of death sentence to juveniles

UNHRC 35 of 44

sentences138139140

Saudi Arabia and China too have questionable records that need to be

scrutinized further

While regional treaties and charters usually substantiate international law the Arab Human

Rights Charter of 2004 is unique among regional and international treaties in that the ban on the

juvenile death penalty in it is not absolute but merely optional141

Furthermore national laws in states that observe such a practice are in violation of

international legally-binding charters In Iran and Saudi Arabia laws usually treat a child the

same way as an adult criminal offender would be treated Article 10(3) of the International

Covenant on Civil and Political Rights emphasizes the need for demarcation between the

handling of children and that of adults in stating ―Juvenile offenders shall be segregated from

adults and be accorded treatment appropriate to their age and legal status142

The definition of a child in these Muslim states is unclear as adulthood is associated with

attainment of puberty which is a relative concept The Committee on the Rights of the Child in

January 2005 censured the Saudi government for its practice of imposing the death penalty on

juveniles terming it a serious violation of the fundamental rights The committee was deeply

alarmed over the discretionary power judges hold to treat juveniles as adults as was stated in

the committeelsquos report Iran too was strongly condemned following the release of an

international report highlighting the dire situation in Iran by the International for Human Rights 143

138

httpwwwfoxnewscomstory0293329798200html 139

httpnewsbbccouk2himiddle_east7130380stm 140

httpenwikipediaorgwikiCapital_punishmentIran 141

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 142

httpwww2ohchrorgenglishlawccprhtm 143

httpwwwfidhorgIMGpdfRapport_Iran_finalpdf

UNHRC 36 of 44

On August 19 2008 Iranian authorities executed Seyyed Reza Hejazi at Isfahan Central Prison

for his role in a murder committed in 2003 when he was 15 Hejazi was tried as an adult by

Branch 106 of the Isfahan General Court even if he did not qualify as one under international

stipulations and sentenced to death on November 14 2005144

In Saudi Arabia Mu`id bin

Husayn bin Abu al-Qasim bin `Ali Hakami was executed on July 10 2007 for a murder he

allegedly committed three years earlier when he was 13 years old145

The judges in these states

because of the implementation of the Sharialsquo law have a large amount of discretion with regard

to their rulings This discretion is often abused in the interrogation and judicial proceedings In

Pakistan authorities hanged Mutaber Khan in Peshawar Central Prison on June 13 2006 on

charges of murder of five people The fact that he was held in the juvenile wing of Peshawar

Central prison and the evidence presented by the accused confirming that his age was below 18

at the time of the killings were not taken into account during the trials and Mutaber was charged

as an adult in the case146

While the above does not cover exhaustively the practice of capitally punishing juveniles the

committee is expected to be well read on the matter The committee will be required to devise

ways to strictly apply the existing international law on the subject to curtail further deaths of

juveniles by states A series of recommendations on better implementation of international

covenants will be expected from the committee Delegates at UNHRC will also have to

familiarize themselves with the stipulations in the national laws of countries practicing juvenile

death penalties (Iran Saudi Arabia Pakistan Nigeria Sudan Yemen and UAE among others) to

discuss how these states are constitutionally able to bend international law and mete out the

illegal punishments

144

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 145

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 146

See FIDH and Human Rights Commission of Pakistan ―Slow march to the gallows and ―Condemned Prisoner

Executed Dawn Newspaper Karachi June 14 2005 httpwwwdawncom20060614nat16htm

UNHRC 37 of 44

Universality of Laws Incurring the Death Penalty

In countries which have not abolished the death penalty capital punishment may be imposed

only for the most serious crimes it being understood that their scope should not go beyond

intentional crimes with lethal or other extremely grave consequences

- Safeguards guaranteeing protection of the rights of those facing the death penalty147

Laws incurring the death penalty or capital crimes have certain uniformity the world over This

is of course barring states that are religiously affiliated and whose law systems are not secular

in nature The list of capital crimes for those states with non-secular legal systems is slightly

different The Human Rights Commission had decided that the imposition in the State party of

the death penalty for offences which cannot be characterized as the most serious including

apostasy committing a third homosexual act illicit sex embezzlement by officials and theft by

force are incompatible with Article 6 of the Covenant Economic offences including

embezzlement drug related offences political offences and robbery were also referred to148

The reason why looking into capital crimes and trying to garner a global impression of them is

important is that the death penalty can only realistically be abolished in a piecemeal way This

process will entail shortening the list of capital crimes The UN formally notes that ―in order

fully to guarantee the right to life provided for in article 3 of the Universal Declaration of

Human Rights the main objective to be pursued is that of progressively restricting the number of

offences for which capital punishment may be imposed with a view to the desirability of

abolishing this punishment in all countries149

The first established death penalty laws date as far back as the Eighteenth Century BC in the

Code of King Hammaurabi of Babylon which codified the death penalty for 25 different crimes

By the 1700s 222 crimes were punishable by death in Britain including stealing cutting down a

tree and robbing a rabbit warren In the 19th

century the death penalty was eliminated for over

100 of the 222 crimes punishable by death 150

In modern times the UN Special Rapporteur on

extrajudicial summary or arbitrary executions has stated that the death penalty should be

eliminated for economic crimes and drug-related offences and that the restrictions to its use

―exclude the possibility of death sentences for so-called victimless offences ndash including acts of

treason espionage and other vaguely defined acts usually described as crimes against the Statelsquo

or disloyaltylsquo and ―actions primarily related to prevailing moral values such as adultery and

prostitution as well as matters of sexual orientation151

147

httpwww2ohchrorgenglishlawpdfprotectionpdf 148

httpwwwunhchrchtbsdocnsf0bc310a747155dff88025655300537faeOpendocument 149

General Assembly resolution 2857 httpwwwunodcorgpdfcompendiumcompendium_2006_part_01_05pdf 150

httpdeathpenaltycurriculumorgstudentcabouthistoryhistoryPDF 151

httpswwwabofimedia24259report10pdf

UNHRC 38 of 44

Contrary to the made recommendations even political dissent warrants a death sentence in

several countries most notably in China and Iran In 2010 nearly 20 Kurdish people were

executed for political offences in Iran The country is known for keeping dissent especially from

the Kurds suppressed Most are executed on the grounds of moharebeh or enmity against God

Moreover challenging the power of the Ayatollah is also punishable by death These charges are

neither explicit nor in line with international guidelines over what crimes are punishable

capitally In Iran judges must handle such cases carefully as Iranian law provides for only one

punishment if an individual is found to be guilty of treason Libya too thwarts political dissent

with firm laws in place for punishing by death those who illegally form groups organizations or

associations against the state152

Saudi Arabia too is worth note for its vaguely phrased laws governing capital punishment

Intentional murder and crimes that spread ―mischief in the land (Fasad fil-ardh) merit death In

2010 the government announced that it had executed 26 people all by beheading Crimes that

―spread mischief include witchcraft and sorcery153

How is one convicted of witchcraft in the

21st century What can the international community do when regarding countries such as these

Treason arguably along with murder is the capital crime that has yet to be phased out by many

countries In some such as Brazil treason during warfare is the only crime for which a person

can be sentenced to death In the Gaza Strip under Hamas any sort of cooperation with Israeli

forces during military actions is also punishable by death In others including Algeria Bahrain

Iran and Malaysia treason is punishable by death in all circumstances The United States too has

federal laws governing treason under which traitors ―shall suffer death154

Child sex abuse is another crime that is widely held to merit the death penalty In Russia for

example according to the Russian Public Opinion Research Center an overwhelming majority

consider the death penalty to be an acceptable punishment especially in relation to molestation

155 In 2009 however Russias Constitutional Court effectively abolished the death penalty by

extending indefinitely a 13-year-old moratorium on capital punishment156

Indonesia has some of the strictest penalties for drug related crimes in the world Roughly half of

those on death row are incriminated with drug-related charges157

In 2008 though the most high

profile executions were of terrorists Three of those found responsible for the 2002 Bali

bombings were executed by shooting158

Generally speaking however a significant proportion of

152

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 153

httpwwwstategovgdrlrlshrrpt2010nea154472htm 154

httpdeathpenaltyproconorgviewresourcephpresourceID=1172 155

httpenrianrutrenddeath_penalty 156

httpwwwreuterscomarticle20091119idUSLJ330478 157

httpwwwnytimescom20080711worldasia11iht-indo114421132html 158

httpnewsbbccouk2hiasia-pacific7718246stm

UNHRC 39 of 44

the executions or death sentences recorded (in 2010) in China Egypt Indonesia Iran Laos

Libya Thailand United Arab Emirates and Yemen were for drug-related offences In December

2010 the amended Anti-Narcotics law came into force in Iran extending the scope of the death

penalty to include additional categories of illegal drugs (for example crystal meth) possession

of which became punishable by death Also around the same time the National Assembly of

Gambia voted to extend the scope of the death penalty by making the possession of more than

250g of heroin or cocaine an offence punishable by death159

Several states allow for the death penalty for crimes of blasphemy and other crimes for

nonviolent expression and association In Pakistan Aasia Bibi a Christian mother of five was

charged with blasphemy and sentenced to death after a trial largely believed to be unfair on 8

November 2010 She is currently on death row The country is also noted for its laws concerning

capital crimes The list includes 27 crimes most of which go beyond the notion of ―most serious

crimes as recommended by the International Covenant on Civil and Political Rights Extra-

marital sex and blasphemy are examples of some capital crimes in the country In December

2007 Pakistan voted against a United Nation General Assembly resolution for a moratorium on

the death penalty The year before however the nation amended its law on rape and adultery

charges which are no longer punishable by death160

As far back as 1989 recommendations have been made as to how to abolish the death penalty

Member states (of the UN) have been urged ―to publish for each category of offence for which

the death penalty is authorized and if possible on an annual basis information about the use of

the death penalty including the number of persons sentenced to death the number of executions

actually carried out the number of persons under sentence of death the number of death

sentences reversed or commuted on appeal and the number of instances in which clemency has

been granted and to include information on the extent to which the safeguards referred to above

are incorporated in national law161

The committee must inspect how far this recommendation

has been adopted and should seek to rectify the weaknesses in the system of gradually

abolishing the death penalty Can a target year be designated by which crimes meriting the death

penalty could be made universal How can countries with non-secular legal systems be brought

into the fold of international law

159

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 160

httpwwwfiacatorgenIMGpdfdppakistan-enpdf 161

httpgraduateinstitutechfacultyclaphamhrdocdocsecosocresolutiondeathpen1989html

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 22: UNHRCFINAL

UNHRC 18 of 44

Incidences of beatings at time of arrest and torture (including the administration of electric

shocks and deprivation of food and medical treatment)67

during custody are widely reported

These are not isolated cases rather the product of a holistic policy of dealing with political

dissidents In one notable incident in May 1998 political prisoners in Drapchi staged major

protests to coincide with a visit from a European Union delegation The protests were non-

violent but the authorities reaction was severe several protestors were shot at and one monk

Lobsang Gelek subsequently died68

The Convention Against Torture (CAT ratified by China in 1988) requires the state to prevent

torture and punish those in violation of the law China has not amended its own laws to comply

with even the first article of CAT69

Such practices explicitly stand in contempt of Article 5 of

the Universal Declaration of Rights which censures the use of torture or cruel treatment as

punishment Dr Manfred Nowak the UN Special Rapporteur on Torture stated that ―he was

struck by the strictness of prison discipline and a palpable level of fear and self-censorship when

talking to detainees following his brief assessment of Chinese and Tibetan prisons in 200570

The committee will be looked upon to review ways in which the situation can be monitored more

carefully and what responses if any can be cultivated to impede similar future actions by

China

The continued violations of religious freedom and implementation of policies designed to

diminish religious practices by the State to serve its political needs is a cause of concern Again

referring to the Universal Declaration of Human Rights Article 18 reads ―Everyone has the right

to freedom ofhellipreligion this right includes freedomhellipto manifest his religion or belief in

teaching practice worship and observance71

The policies implemented by Chinese authorities

through use of coercion violent repression and imprisonment impinge upon the freedom of

Tibetans to practice their religion freely China has also strictly enforced re-education programs

for dissident factors within the state The program is aimed at ―combating separatism protecting

stability and promoting development and is intended to reform the political ideology of people

who refuse to accept state control of what they perceive as vital aspects of their religious lives

and beliefs The committee will be expected to deliberate upon the protection of religious

freedom and practices of individuals as well as the validity of these re-education programs in

light of human rights and liberties

Tibet is not the only region where political tensions surrounding autonomy run high The

Kosovo-Serbian conflict is pertinent to recall The Republic of Kosovo declared itself to be an

independent entity on February 17 2008 As of 11 October 2011 85 UN states recognize the

independence of Kosovo However Serbia maintains that Kosovo is a UN governed entity under

67

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 68

httpwwwfreetibetorgabouttorture 69

httpwwwfreetibetorgfilesfileaboutNowak20reportpdf 70

Ibid 71

httpwwwunorgendocumentsudhr

UNHRC 19 of 44

its sovereignty Russia and China are among those who do not recognize the Republic while the

USA UK and France have recognized Kosovolsquos declaration of independence This highlights the

rift between the United Nations Security Council over the issue The case of Tibet is all the more

important in light of the fact that many such pockets exist in the world struggling for self-

determination

Media Links

httpwwwfreetibetorgnewsmedia2008-protests-summary

httpwwwguardiancoukworldgallery2008mar19tibetchinapicture=333178281ampindex=7

Chinarsquos Violation of Ethnic Minority Rights

One of the greatest blemishes on Chinalsquos human rights record is in the area of ethnic minorities

and the extent to which China protects ethnic minority rights On paper Chinalsquos policies are

based on ethnic equality and regional ethnic autonomy Ethnic minorities are supposed to be

benefitting from preferential policies in the political economic cultural and educational spheres

However the ground realities are infinitely different Questions have been raised over the extent

to which the government fairly provides services to these minorities and allocates resources

equally to them The Chinese government is seen to largely prefer its Han majority The

minorities claim they are exploited for their resources and in turn not even provided with the

same level of social services as the Han people China is an atheistic government and the fact

that many ethnicities garner their identity in major part from their religious affiliation leads to a

precarious situation The Mongols Tibetans and Uighurs all come to mind when discussing the

issue of China and ethnic minority rights

―Everyone is entitled to all the rights and freedoms set forth in this Declaration without

distinction of any kind such as race colour sex language religion political or other opinion

national or social origin property birth or other status Furthermore no distinction shall be

made on the basis of the political jurisdictional or international status of the country or

territory to which a person belongs whether it be independent trust non-self-governing or

under any other limitation of sovereignty

- Article 2 Universal Declaration of Human Rights

The International Convention on the Elimination of Racial Discrimination defines racial

discrimination as any distinction exclusion restriction or preference based on race colour

descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the

recognition enjoyment or exercise on an equal footing of human rights and fundamental

UNHRC 20 of 44

freedoms in the political economic social cultural or any other field of public life72

It is due to

this that the international community has adopted the norm of subsuming ethnicity under the

terminology of race

―The Peoples Republic of China is a united multi-ethnic country So far 56 ethnic groups have

been identified and recognized by the central government The population of various ethnic

groups differs greatly While the Han ethnic group has the largest population and that of the

other 55 ethnic groups is relatively small so they are customarily referred to as ethnic

minoritieslsquo According to the fifth national census conducted in 2000 the population of all the

55 ethnic minority groups totaled 10449 million accounting for 841 percent of the total

population of China73

Chinas official 55 minorities are located primarily in the south west

and north of China Only Tibet and Xinjiang have a majority population of official minorities

while all other provinces municipalities and regions of China have a Han majority

One of Chinalsquos autonomous regions is the Xinjiang Uighur Autonomous Region (XUAR)

located in western China The area is vast accounting for one sixth of Chinalsquos land and houses

around 13 major ethnicities including the Uighurs who are a predominantly Muslim people with

origins in Central Asia The Uighurs have had strained ties with the state and have often resisted

Chinese authority74

In turn the Chinese government has reacted sometimes violently against

restless factions in the region One of the most passive aggressive forms of response on the part

of the Peoplelsquos Republic has been the encouragement of the migration of the Han people ndash

Chinalsquos ethnic majority ndash to the XUAR75

Around 90 of Xinjiangs population comprised of

Uighurs in 1949 now it is estimated that Uighurs make up only about 45 of the population76

The policies in Xinjiang are said to be designed to ―promote economic development not

demographic change In reality though the influx of migrants has amplified Uighur discontent

as Han and Uighurs compete over limited jobs and natural resources77

The United Stateslsquo

Congressional-Executive Commission on China reported that in 2006 the XPCC (Xinjiang

Production and Construction Core) reserved approximately 800 of 840 civil servant job openings

for Han Chinese78

One of the causes of the Han monopoly in the employment sector is the

linguistic advantage afforded to them and perpetuated by the education system As part of its

efforts to implicitly impose a unified culture the language policy was altered by the state with

an increased focus on use of Mandarin in schools at the expense of the local languages

Methods of education special to the ethnic peoples of the XUAR including the Muslim Uighurs

are suppressed For example a campaign by the PRC in 2001 targeted religious teachers and

72

httpwww2ohchrorgenglishlawcerdhtm 73

httpenglishgovcnofficial2005-0728content_18127htm 74

httpwwwcfrorgchinaeast-turkestan-islamic-movement-etimp9179 75

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p8 76

httpnewsbbccouk2hiasia-pacific3330803stm 77

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p4 78

httpwwwcolumbiaeducunewsclips20080801UighursTWPOSTpdf

UNHRC 21 of 44

endeavored to sever ties between mosques and groups involved in allegedly ―separatist

activities Around 8000 imams were required to undergo ―political reeducation in this regard

and become ―patriotic religious personalities Ethnic minorities are educated in ways that do not

allow them to learn their own languages or practice their own religion In 2001 for example a

Muslim girl was expelled from school for praying 79

Moreover in an attempt to further its socialist agenda and bind ethnic minorities together

minority cultural activities are often hindered In its place nationalistic values are given a

premium and integrated into society so as to tie the entire country in a unified Chinese foldlsquo

Resultantly an asymmetry with regards to the provision of services and protection of cultural

identity can be found in almost every ethnic minority region in the country The repression

against minorities has wider implications on the human rights situation for all This leads to

creation of a vindictive attitude among the minorities not only against the government but also

the Han majority

In July 2009 this attitude manifested itself in

the form of severe riots between the Han and

Uighur communities in Xinjianglsquos capital city

Urumqi Ethnic tensions elevated to the point

that police involvement was made necessary

According to Chinese state media at least 150

people were killed and more than 800 were

injured The riots were reportedly sparked by a

Uighur protest over the ethnically motivated

killing of two Uighur workers in the southern

province of Guangdong

On the topic of allegations of separatism it is interesting to note that post 911 it has been noted

that the Chinese government has used concerns about terrorism as a method for suppressing

ethnic activity This is possible through the characterization of certain ethnicities as having

fundamental leanings The Muslim Uighurs fell under fire for this very reason after the

September 2001 attacks

One of the ways that the Chinese government with its Han leanings has asserted its presence in

the region is through the smokescreen of the XPCC The Peoplelsquos Liberation Army and the

XPCC are present in the region per the government to ―consolidate border defense accelerate

79

wwwminorityrightsorgdownloadphpid=29 Page 30

UNHRC 22 of 44

Xinjianglsquos development and reduce the economic burden on local governments and the local

people of all ethnic groups80

The heavy militarization of ethnic minority

regions also enables the Chinese government

to quickly respond to skirmishes between the

minorities and the Han For example clashes

between the Uighurs and the Han in the

XUAR are quickly clamped down upon The

response by Chinese authorities always

focuses on the minority groups in the region

The typical response includes a period of

strike hardlsquo security measures during which the minorities are subjected to police patrols of

crowded areas identity checks street searches increased criminal investigations and accelerated

trials The measures also include mandatory political indoctrination classes for the Uighur

population Swift Chinese response to ethnic dissidence precludes the possibility of trying

protestersrioters under due process This phenomenon also contributes to the controversy of

China and its policy of arbitrary imprisonment

Essential to any countrylsquos social progress is the protection and provision of the basic rights to all

its citizens For a country like China which has a significant standing in the international

community the degree to which human rights are upheld comes under added scrutiny Minorities

need to be guaranteed provision of not only fundamental rights but additional ones that grant

them equal opportunities

Recent Developments

3 November 2010 UN Secretary General pushes China on human rights

Ban Ki-moon the United Nations secretary general has called on China to respect human rights

after critics accused him of dodging the issue on a trip to Beijing The UN secretary general met

Hu Jintao the Chinese president but failed to challenge Mr Hu on the imprisonment of Liu

Xiaobo the democracy activist who was awarded this years Nobel Peace prize and raise the

issue of human rights81

80

httpwwwchinaorgcne-white200305269htm 81

httpwwwtelegraphcouknewsworldnewsasiachina8107148UN-Secretary-General-pushes-China-on-human-

rightshtml

UNHRC 23 of 44

5 November 2011 Yeqing Ji from Shanghai China will most likely not be able to have children

after she said two forced abortions physically impaired her uterus82

8 September 2011 The Chinese government has renewed Googlelsquos license to allow it to

continue operating its local website in the country83

13 November 2011 Seven months ago

Chinese police detained the countrylsquos most prominent artist Ai Weiwei at the airport and drove

him to a hidden location It was the beginning of what is to be a two-and-a-half month nightmare

for the architect and sculptor who is also a former darling of the Communist Party who later

turned into an outspoken government critic Ai was held on vague charges of economic crimes

was kept in isolation and subjected to Kafka-esque interrogations84

April 19 2011 Amnesty International a 21-year-old monk Phuntsog set himself on fire in an

apparent anti-government protest in March 2011 Instead of putting out the flames Chinese

police beat the young monk creating huge resentment in the monastery85

At least 11 ethnic

Tibetans have been detained for protesting against the event and against government policies

They are at risk of torture and other ill-treatment86

29 May 2011 300 Tibetan monks detained in Kirti monastery by Chinese security forces87

15 September 2011 Chinese Uighurs economic fears

Amid ethnic tensions minority regards modernization plans in Xinjiang as favoring Han Chinese

migrants88

20 November 2011 Another of Chinalsquos minorities the Hui Muslims in Ningxia do not feel

stigmatized

―There is an important reason why Hui and Han Chinese get along with each other Unlike

Muslims of the other ethnic minorities like Uighur Kazakh Kyrgyz and Tajik the Hui Muslims

speak Mandarin just like the Hans89

82

httpabcnewsgocomBusinesswoman-china-forced-abortions-leaves-unable-

childrenstoryid=14880884Tsia7LIk6so 83

httpwwwbbccouknewsbusiness-14832392 84

httpwwwthedailybeastcomnewsweek20111113ai-weiwei-speaks-out-on-his-detentionhtml 85

httphradvorgaggregatorsources10 86

httpwwwamnestyorgenlibraryassetASA170212011end75f7611-be66-4d5a-9391-

c80c43501d56asa170212011enhtml 87

httphumanrightshouseorgArticles16503html 88

httpwwwaljazeeracomvideoasia20110920119158016969449html 89

httpwwwtodayszamancomnews-263322-chinas-hui-muslims-do-not-feel-stigmatizedhtml

UNHRC 24 of 44

Conclusion

The United Nations Human Rights Council at LUMUN 2012 will be looked upon to provide a

framework for the resolution of these issues in a universal context The scope of the issues

should be expanded and applied to countries other than China The committee will have to make

recommendations which have universal application and resolve all aspects of the issue

comprehensively For any queries related to the study guide please do contact either (or both)

the committee directors at the given addresses

UNHRC 25 of 44

Topic Area B Abolishing the Death Penalty

Introduction to the Topic Area

The death penalty is formally defined as the execution of an offender sentenced to death after

conviction by a court of law of a criminal offenselsquo90

The concept of a capital crime is subjective

and states have made use of this practice in response to multiple forms of crime The use of the

death penalty has produced much controversy with regard to its apparent violation of

fundamental human rights as delineated in the Universal Declaration of Human Rights and

subsequent human rights charters and treaties It is asserted that the use of death penalty is in

contravention to the peopleslsquo right to life promised to every individual under Article 3 of the

Declaration91

Moreover Article 2 of the Charter of Fundamental Rights of the European Union

lucidly bars the imposition of death penalty as a form of punishment92

Arguments against the

use of death penalty are also made on the grounds of inhumane methods which are employed to

see out the process Historically multiple methods have been used which include death by

hanging severing of the head lethal injection shooting and electrocution93

94

As a response states have made keen efforts to abolish

the death penalty particularly in the last two decades as

can be interpreted from the graph on the right which

represents the number of states that have abolished the

death penalty Countries belonging to the European

region with the exclusion of Russia and Belarus have

sought to revoke the use of the practice The death

penalty is most commonly seen to be a formal practice

in most of the developing countries The trend is

apparent in Latin America Africa and Asia

96 countries have formally abandoned the use of death penalty 58 countries allow the use95

Other states have abolished the penalty in practice but the laws remain in place for the

imposition of the penalty as a response to certain crimes The imposition of the death penalty has

90

httpwwwbritannicacomEBcheckedtopic93902capital-punishment 91

httpwwwunorgendocumentsudhr 92

httpwwweuroparleuropaeucharterpdftext_enpdf 93

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffle

re-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 94

httpwwwdeathpenaltyinfoorgmethods-execution 95

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf

Figure 1 (Drag to enlarge)

UNHRC 26 of 44

seen a decline over the recent years with a fall in the number of executions that take place

annually It would however be incorrect to assume that the practice is not prevalent or widely in

effect Amnesty International reported that at least 2024 new death sentences were imposed in 67

countries in 2010 Moreover there were at least 17833 people sentenced to death worldwide at

the end of 201096

Again these are minimum figures which are the safest that can be inferred

from the given research There were 527 known executions carried out in 2010 globally97

This

figure however does not include the number of executions that took place in China where

analysts believe that more than a thousand people were put to death in the past year

The statistics represent the number of people executed through capital punishment One way to

formally define capital punishment is to regard it as the state sanctioned killing of an individual

through a judicial process as a punishment for a crime (defined as a capital crime by the state)98

Capital punishment is the most obvious and prevalent manifestation of the death penalty It is

often perceived as a statelsquos right in order to preserve law and order against any individual who

engages in serious crimes that threaten other individuals or the state Those who advocate against

the use of capital punishment label it as a symptom of a culture of violence not a solution to

itlsquo99

The controversy surrounding the topic is based on the legal ethical and moral acceptability

of the statelsquos right to an individuallsquos life The debate entails several social and economic factors

some of which will be reviewed in closer detail in the relevant section of this guide

One of the most striking aspects related to the issue is the imposition of the capital punishment

on juveniles The sentencing of juveniles to death is in clear breach of international law The

morality and validity of such a practice is often called into question and has been put under

relentless scrutiny despite all of which the practice is still carried out in a number of countries

Historically the United States China and Iran have the worst records relating to juvenile death

sentences100

The study guide also includes a separate section for the case of juveniles in which

the legal and social aspects of the problems are detailed

As stated states have made use of the death penalty to punish crimes of varying natures The use

of the death penalty is reserved for only the most seriouslsquo crimes as put forth in international

law101

The notion of a capital crime however is a subjective one states that have doled out

death sentences have defined it differently In certain countries the death penalty is only used to

charge criminals accused of war crimes In other countries the penalty is reserved for crimes like

96

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf 97

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010 98

httpusersrcncommwooddeathpenhtml 99

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 100

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 101

httpwwwunorgdocumentsecosocdocs1995e1995-78htm

UNHRC 27 of 44

murder rape or even robbery States also use the death penalty against individuals who are guilty

of treason The issue however is that many states practicing the death penalty impose the

punishment even when the crimes do not meet the threshold for the aforementioned most

seriouslsquo crimes The ability of states to define what constitutes as a capital crime has led to states

abusing their powers as has been observed in the sentences ordained by military courts

Moreover even the radicals who make the argument of the punishment fitting the crime agree

that in many instances individuals have been executed for softlsquo crimes crimes that were

certainly not tantamount to charges of murder or crimes against humanity The issue of apparent

violations of human rights is further exacerbated in these instances The study guide will discuss

the universal crimes that have resulted in the awarding of the death penalty and examine the

issue further The committee will be expected to discuss the feasibility of drawing up an

international definition of crimes which in isolated instances perhaps may be appropriate for a

sentence like the death penalty

Another pertinent aspect surrounding the debate is that of extrajudicial killings The execution of

a person by state authorities without the authority of a judicial proceeding is termed as an

extrajudicial killing Many states have used extrajudicial killings to establish their authority and

order without having to wade through the legal process By doing so they have deprived scores

of people of their fundamental right to free and fair trials Governments have also employed this

tactic to exercise political aggression and to suppress dissent A particular point of concern is the

fact that some states have made use of these killings even when they have officially revoked the

imposition of the death penalty Extrajudicial killings are carried out persistently in many

countries ndash the list includes countries like Iran Iraq Israel Philippines102

Most recently the

killing of Anwar al-Awlaki and Samir Khan in Yemen by a sanctioned National Security Council

move by the USA was an example of states embarking on such paths to eliminate threats to

national securitylsquo103

102

Multiple citations for each country can be found in the second paragraph article titled Extrajudicial killinglsquo on

Wikipedia 103

httpwwwtelegraphcouknewsworldnewsbarackobama7564581Barack-Obama-orders-killing-of-US-cleric-

Anwar-al-Awlakihtml

UNHRC 28 of 44

Wrongful convictions lead many to believe in the inherent incapacity of the death penalty to

serve justice On September 21 2011 US citizen Troy Davis was executed in Georgia after

which seven of the nine witnesses who testified against him in the case that led to his execution

recounted or retracted their evidences A petition with nearly one million signatures was put

forth to reconsider his case it was rejected On the same day a 17 year old boy was publicly

hanged in Iran for killing a popular athlete his justification based on self-defense was ignored

Also on the same day a Pakistani national was executed in China on grounds of drug trafficking

an offence that does not often result in capital punishment The need for the resolution of this

issue is pressing and the committee needs to deal with all aspects of the problem in a

comprehensive and enduring manner104

Capital Punishment

In 2010 23 countries implemented capital punishment A total of 527 executions (plus the 1000+

carried out in China alone) were known to have taken place with Iran Yemen USA and North

Korea meting out a significant number of sentences105

The figure is lower than the records

computed for years past There are more states which are now abolitionist either in law or in

practice with regard to the imposition of the punishment Gabon was officially the last country

to rescind the practice while bills calling for an end to capital punishment have been presented

to parliaments in Lebanon Mali Mongolia and South Korea106

Renewed efforts are

104

httpwwwamnestyorgennews-and-updatesus-executes-death-row-prisoner-troy-davis-2011-09-21 105

httpwwwguardiancouknewsdatablog2011mar29death-penalty-countries-world 106

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010

UNHRC 29 of 44

simultaneously being made on the international front to implement laws against capital

punishment A third resolution establishing a moratorium on the use of death penalty passed the

UN General Assembly on December 21 2010107

Despite the increasing momentum towards an eventual elimination of the practice the number of

executions taking place annually is a cause of major concern Advocates of the death penalty

assert that the practice is an effective means of deterring crime in society Public executions are

often held in Iran Afghanistan and Palestine for example to demonstrate the fate awaiting

those who commit similar crimes108

Arguments are made on the grounds of justice that it is

proper and fair to take an eye for an eye and a life for a life and that some individuals deserve

it for the crimes they commit

Those opposing the practice question the morality of an action sanctioned by the state which

endorses deprivation of the right to life a fundamental human right under the Universal

Declaration of Human Rights109

There are inescapable flaws within legal systems which are

aggravated by discrimination prosecutorial misconduct and inadequate legal representation

Moreover the risk of executing the innocent can never be eliminated110

An alternative is

presented in the form of imprisonment for life without parole which results in a parallel debate

is imprisonment for life a viable surrogate to the practice of death penalty A thread from this

debate also relates to the economic feasibility of carrying out a death sentence as opposed to the

feasibility of imprisonment for life

Deterrence

Capital punishment is often propagated as an adequate approach in the deterrence and prevention

of crime The logic is that if murderers are sentenced to death potential murderers will think

twice before killing for fear of losing their own life The deterrence theory presumes that the

once the punishment for a certain crime is established the criminal by committing the crime

voluntarily assumes the risk of receiving the prescribed punishment for the crime Only when the

most severe punishment has been set will there be a possibility of an individual evaluating their

actions in light of the consequences111

107

httpwwwundemocracycomA-RES-62-149pdf 108

httpwwwamnestyorgennews-and-updatessharp-rise-public-executions-iran-executes-first-juvenile-

offenders-2011-2011-04-27 109

wwwunorgendocumentsudhr 110

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 111

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 30 of 44

The death penalty it is asserted ensures that convicted criminals do not offend again moreover

it is deemed to be a just penalty for atrocious crimes It is further alleged that many criminals

who are set free even after lengthy sentences regress and go on to commit heinous crimes

Therefore there should never be the possibility of a release clause112

The deterrence theory is modeled on the grounds of human psychology logic and rationale As a

professor of jurisprudence Ernest van den Haag PhD wrote ―Common sense lately bolstered

by statistics tells us that the death penalty will deter murder if anything can People fear nothing

more than death Therefore nothing will deter a criminal more than the fear of death These

statements were further validated by a US Supreme Court Justice who said on record that

Prima facie the penalty of death is likely to have a stronger effect as a deterrent to normal

human beings than any other form of punishmentlsquo113

Numerous studies have been conducted on

the subject with varying results One of the most established studies was conducted in USA

using a panel data set of over 3000 counties from 1977 to 1996 which concluded that on

average one death sentence resulted in 18 fewer murders114

Delegates will be expected to be

familiar with other similar studies

These studies are commonly refuted as not crediblelsquo by opponents of the capital punishment

who also deny the correlation between crime and death penalty as a fabricated relationship which

cannot be empirically established115116

A study of the relationship between capital punishment

and the incidence of murder was conducted for the UN in 1988 and updated in 2002 The

conclusion was ―The investigation has not provided scientific proof that executions have more

deterrent effect than life imprisonment It is unlikely that such evidence will ever come

Deterrence hypothesis finds no support in the survey117

Another counter-argument asserts that crime is still a persistent feature of the societies that

continue to award the death penalty while many of the abolitionist states enjoy low crime rates

This can be evidenced by comparing the crime rate in USA or Pakistan with that of Canada or

some European state In Canada for example the homicide rate per 100000 fell from a peak of

309 in 1975 the year before the abolition of the death penalty for murder to 241 in 1980 and

in 2003 27 years after abolition the homicide rate was 173 per 100000 44 per cent lower than

in 1975118

112

httpwwwdeathpenaltyinfoorgfacts-about-deterrence-and-death-penalty 113

httpdeathpenaltyproconorgviewresourcephpresourceID=002000 114

httpdeathpenaltyproconorgsourcefilesThe20Deterrent20Effect20of20Capital20Punishmentpdf ndash

Delegates should carefully examine certain parts of this document to establish the credibility of the assertions made

They should also invest in trying to locate studies that refute the assertions made in this and similar studies 115

httpwwwdeathpenaltyinfoorglaw-enforcement-views-deterrencelawenforcement 116

httpwwwdeathpenaltyinfoorgDonohueDeterpdf 117

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 118

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml

UNHRC 31 of 44

The lack of evidence on the production of a unique deterrent effect points to the danger of

relying on the deterrence hypothesis as a basis for public policy on the death penalty

Retribution amp Morality

An important terminology that delegates need to familiarize themselves with is that of

―retributivism119

It is defined as ―a policy of criminal justice that sponsors the punishment of

criminals in retribution for the harm they have inflicted120

Criminals deserve to be punished in

proportion to the gravity of their crime regardless of whether the victim or anyone else desires

it we may all deeply regret having to carry out the punishment but consider it warrantedlsquo is

what many say in defense of the theory121

The need for the establishment of a visibly just state arises from the potential risks of not having

one As has been visible in many developing countries with shaky legal systems when criminals

are not adequately punished for their unlawful behavior the public takes the law into its own

hands and deals out vigilante justice It is asserted that retributivism is essential for a functioning

society where individuals respect the supremacy of law

The concept of retribution in society is also grounded in religious beliefs The concept of an eye

for an eye has been a part of all three Abrahamic traditions However in the modern world it is

Islamic nations that still retain the practice based on these grounds Similar traditions can be

found in Hinduism Christianity and Buddhism as well as other religions in different parts of the

world In many non-secular countries the constitutions and state laws are derived from religious

doctrines

Opponents dismiss this aspect of the argument as being emotionally charged with little rational

logic to support the contention They claim that the establishment of capital punishment gives

birth to a culture of violence endorsed by the state It perpetuates the cycle of aggression and

brutality something which the state should be actively inhibiting not endorsing

Wrongful Convictions

The death penalty carries with it the danger of wrongfully convicting an innocent person for

crimes he did not commit There is the potential for capital punishment to evolve into sheer

miscarriage of justice as in certain circumstances states are often seen to rush the trials and

convict the accused hastily This practice takes foremost apparently in military courts often in

119

Cavadino M amp Dignan J (1997) The Penal System An Introduction (2nd ed) p 39 London Sage 120

httpdictionaryreferencecombrowseretributivism 121

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 32 of 44

the developing or lesser-developed countries where the system of law is not properly established

It is not however exclusive to these countries Examples can be drawn from countries like

Philippines Thailand Iran and Palestine to name just a few where executions are carried out at

alarming pace removing the possibility of reviews

On 15 August 2004 Atefah Rajabi Sahaaleh was hanged in a public square in the Iranian city of

Neka Her death sentence was imposed for adultery and crimes against chastity122123

Atefah

was executed a week after the trial was run Following the execution the Judge for the case was

arrested for investigation by the Intelligence Ministry The media reported that in addition to the

confession of his rape of Atefeh Judge Rezai who served as judge jury and executioner also

confessed to torturing her during interrogations to extract names of others she had relations with

No transcripts from court proceedings were recorded The State alleged that Atefah was 22 at the

time of her execution A witness later claimed The judge just looked at her body because of

the developed physique and declared her as 22124

ndash her birth certificate revealed she was born

in 1988 Furthermore Atefah did not have access to a proper defense where she could contest

charges leveled against her This is one example of many such cases of miscarriage of justice

Something that recurs in these cases is the failure of the police or prosecuting authorities to

prevent the use of unreliable witnesses the misuse of evidence or confessions and the provision

of inadequate defense representation The advent of DNA profiling and the use of it as positive

evidence in criminal cases has resulted in the exoneration of multiple death row inmates on

grounds of forensic evidence or lack thereof Since 1973 138 people have been released from

death row in the United States after it was proven that they were innocent125

In 2009 Paul

House was cleared of murder and exonerated in Tennessee USA after having served 22 years

on death row His innocence was proclaimed in light of substantial additional DNA testing and

further investigationlsquo 126

Amnesty International has noted examples of wrongful convictions from elsewhere as well

including Jamaica Japan China Nigeria and Tanzania127

Paul G Cassell a former law clerk to

the Chief Justice of USA stated the mistaken release of guilty murderers should be of far greater

concern than the speculative and heretofore nonexistent risk of the mistaken execution of an

innocent personlsquo highlighting the case made by those who advocate the death penalty even in

light of wrongful convictions128

122

httpwwwcosmolearningcomdocumentariesexecution-of-a-teenage-girl1 123

httpnewsbbccouk2hi5217424stm 124

httpnewsbbccouk2hi5217424stm 125

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 126

httparticlescnncom2009-05-13justicetennesseeexonerated_1_death-row-inmate-dna-evidence-house-

arrest_s=PMCRIME 127

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 128

httpdeathpenaltycurriculumorgstudentcaboutargumentstestimony3bhtm

UNHRC 33 of 44

Alternative to Death Penalty

All abolitionist states have reverted to the practice of sentencing criminals to life imprisonment

(some without parole) which is also termed as death by incarceration Widely regarded as a more

humane course of action life imprisonment is also alleged to be a more economical practice

While ensuring public safety by keeping criminals away from society this system also saves the

lives of innocent people who have been falsely or wrongfully convicted The setup inhibits and

curbs the cycle of violence while retaining the deterrence factor it is strongly asserted

Advocates for the death penalty are averse towards life imprisonment for a number of reasons

They cite the unreliability of the system as one of the flaws which impedes the possibility of

such a sentence being successful A certain James Moore serves as a valid example in this case

In 1962 James Moore raped and strangled 14-year-old Pamela Moss The victimlsquos parents opted

out of capital punishment for Moore and he was instead sentenced to life in prison without

parole Twenty years later a change in sentencing laws in 1982 renders James Moore eligible for

parole every two years129130

Kenneth McDuff is another example McDuff was convicted and sentenced to life imprisonment

Years later due to the issue of overcrowding in prisons McDuff was released following which

he killed eight more people McDufflsquos example is of an individual from a developed country

with an established legal system in place131

Overcrowding is a feature of prisons in developing

or lesser developed countries In many such states criminals have also been known to easily

break out from penitentiaries

The economic aspect of the debate is murky at best There is a lack of empirical data on the

subject which is why the arguments of both these sides cannot be settled beyond doubt

Advocates of capital punishment insist that the overall costs of the practice are far lesser than the

costs of housing an inmate for a lifetime132

They also suggest that the life imprisonment allows

criminals to conceive new habeas corpus petitions which on legal grounds cannot be rejected

automatically resulting in more trials

On the other hand substantial arguments are made which stress that the cost of legal proceedings

in capital cases is in truth more than that of other cases States and nations spend a significant

portion of the taxpayerlsquos money in meting out such punishments133

Delegates when addressing

this portion of the debate will need to be aware of the financial aspects of the issue as it forms

for many states an important part of whether capital punishment should be revoked or

not

129

httpwesleylowecomcphtmldeter 130

httpwwwnytimescomkeywordparole 131

httpwesleylowecomcphtmldeter 132

Ibid ndash view section titled Capital Punishment and its costslsquo 133

httpwwwamnestyusaorgour-workissuesdeath-penaltyus-death-penalty-factsdeath-penalty-cost

UNHRC 34 of 44

Imposition of Death Penalty on Juveniles

The prohibition on the death penalty for crimes committed by juvenile offendersmdashpersons under

age 18 at the time of the offensemdashis well established in international law specifically in the

Convention on the Rights of Child

ldquoNo child shall be subjected to torture or other cruel inhuman or degrading treatment or

punishment Neither capital punishment nor life imprisonment without possibility of release shall

be imposed for offences committed by persons below eighteen years of agerdquo134

- Article 37(a) Convention on the Rights of Child

ldquoSentence of death shall not be imposed for crimes committed by persons below eighteen years

of age and shall not be carried out on pregnant womenrdquo135

- Article 6(5) International Covenant on Civil and Political Rights

The treaties are a unanimously agreed set of non-negotiable standards and obligations By

acceding to the treaties and ratifying them governments commit to protecting and ensuring

childrens rights and to holding themselves accountable for this commitment before the

international community

Even though the practice of capital punishment on juveniles is relatively rare however in clear

contravention of international law nine countries have executed offenders who were juveniles at

the time of their crimes between 1990 and 2005136

These countries include the Peoples Republic

of China (PRC) the Democratic Republic of the Congo Iran Nigeria Pakistan Saudi Arabia

Sudan the United States and Yemen137

The USA has since moved to implement a ban on capital

punishment for juveniles However in most other countries of the preceding list the practice is

still enshrined in the judicial system Iranlsquos record in particular has been abominable over the last

decade It has carried out 39 executions of persons under the age of 18 since 2005 Presently

over a hundred individuals are placed on death row for crimes committed as juveniles The

executions of Mahmoud Asgari Ayaz Marhoni and Makwan Moloudzadeh became international

symbols of Irans child capital punishment and the judicial system that hands down such

134

httpwww2ohchrorgenglishlawcrchtm 135

httpwww2ohchrorgenglishlawccprhtm 136

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf - This document by the Human Rights Watch

called The Last Holdoutslsquo is a good summary of juvenile executions and should be reviewed 137

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 - Contains a list with

statistics and details of countries which have allowed the imposition of death sentence to juveniles

UNHRC 35 of 44

sentences138139140

Saudi Arabia and China too have questionable records that need to be

scrutinized further

While regional treaties and charters usually substantiate international law the Arab Human

Rights Charter of 2004 is unique among regional and international treaties in that the ban on the

juvenile death penalty in it is not absolute but merely optional141

Furthermore national laws in states that observe such a practice are in violation of

international legally-binding charters In Iran and Saudi Arabia laws usually treat a child the

same way as an adult criminal offender would be treated Article 10(3) of the International

Covenant on Civil and Political Rights emphasizes the need for demarcation between the

handling of children and that of adults in stating ―Juvenile offenders shall be segregated from

adults and be accorded treatment appropriate to their age and legal status142

The definition of a child in these Muslim states is unclear as adulthood is associated with

attainment of puberty which is a relative concept The Committee on the Rights of the Child in

January 2005 censured the Saudi government for its practice of imposing the death penalty on

juveniles terming it a serious violation of the fundamental rights The committee was deeply

alarmed over the discretionary power judges hold to treat juveniles as adults as was stated in

the committeelsquos report Iran too was strongly condemned following the release of an

international report highlighting the dire situation in Iran by the International for Human Rights 143

138

httpwwwfoxnewscomstory0293329798200html 139

httpnewsbbccouk2himiddle_east7130380stm 140

httpenwikipediaorgwikiCapital_punishmentIran 141

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 142

httpwww2ohchrorgenglishlawccprhtm 143

httpwwwfidhorgIMGpdfRapport_Iran_finalpdf

UNHRC 36 of 44

On August 19 2008 Iranian authorities executed Seyyed Reza Hejazi at Isfahan Central Prison

for his role in a murder committed in 2003 when he was 15 Hejazi was tried as an adult by

Branch 106 of the Isfahan General Court even if he did not qualify as one under international

stipulations and sentenced to death on November 14 2005144

In Saudi Arabia Mu`id bin

Husayn bin Abu al-Qasim bin `Ali Hakami was executed on July 10 2007 for a murder he

allegedly committed three years earlier when he was 13 years old145

The judges in these states

because of the implementation of the Sharialsquo law have a large amount of discretion with regard

to their rulings This discretion is often abused in the interrogation and judicial proceedings In

Pakistan authorities hanged Mutaber Khan in Peshawar Central Prison on June 13 2006 on

charges of murder of five people The fact that he was held in the juvenile wing of Peshawar

Central prison and the evidence presented by the accused confirming that his age was below 18

at the time of the killings were not taken into account during the trials and Mutaber was charged

as an adult in the case146

While the above does not cover exhaustively the practice of capitally punishing juveniles the

committee is expected to be well read on the matter The committee will be required to devise

ways to strictly apply the existing international law on the subject to curtail further deaths of

juveniles by states A series of recommendations on better implementation of international

covenants will be expected from the committee Delegates at UNHRC will also have to

familiarize themselves with the stipulations in the national laws of countries practicing juvenile

death penalties (Iran Saudi Arabia Pakistan Nigeria Sudan Yemen and UAE among others) to

discuss how these states are constitutionally able to bend international law and mete out the

illegal punishments

144

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 145

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 146

See FIDH and Human Rights Commission of Pakistan ―Slow march to the gallows and ―Condemned Prisoner

Executed Dawn Newspaper Karachi June 14 2005 httpwwwdawncom20060614nat16htm

UNHRC 37 of 44

Universality of Laws Incurring the Death Penalty

In countries which have not abolished the death penalty capital punishment may be imposed

only for the most serious crimes it being understood that their scope should not go beyond

intentional crimes with lethal or other extremely grave consequences

- Safeguards guaranteeing protection of the rights of those facing the death penalty147

Laws incurring the death penalty or capital crimes have certain uniformity the world over This

is of course barring states that are religiously affiliated and whose law systems are not secular

in nature The list of capital crimes for those states with non-secular legal systems is slightly

different The Human Rights Commission had decided that the imposition in the State party of

the death penalty for offences which cannot be characterized as the most serious including

apostasy committing a third homosexual act illicit sex embezzlement by officials and theft by

force are incompatible with Article 6 of the Covenant Economic offences including

embezzlement drug related offences political offences and robbery were also referred to148

The reason why looking into capital crimes and trying to garner a global impression of them is

important is that the death penalty can only realistically be abolished in a piecemeal way This

process will entail shortening the list of capital crimes The UN formally notes that ―in order

fully to guarantee the right to life provided for in article 3 of the Universal Declaration of

Human Rights the main objective to be pursued is that of progressively restricting the number of

offences for which capital punishment may be imposed with a view to the desirability of

abolishing this punishment in all countries149

The first established death penalty laws date as far back as the Eighteenth Century BC in the

Code of King Hammaurabi of Babylon which codified the death penalty for 25 different crimes

By the 1700s 222 crimes were punishable by death in Britain including stealing cutting down a

tree and robbing a rabbit warren In the 19th

century the death penalty was eliminated for over

100 of the 222 crimes punishable by death 150

In modern times the UN Special Rapporteur on

extrajudicial summary or arbitrary executions has stated that the death penalty should be

eliminated for economic crimes and drug-related offences and that the restrictions to its use

―exclude the possibility of death sentences for so-called victimless offences ndash including acts of

treason espionage and other vaguely defined acts usually described as crimes against the Statelsquo

or disloyaltylsquo and ―actions primarily related to prevailing moral values such as adultery and

prostitution as well as matters of sexual orientation151

147

httpwww2ohchrorgenglishlawpdfprotectionpdf 148

httpwwwunhchrchtbsdocnsf0bc310a747155dff88025655300537faeOpendocument 149

General Assembly resolution 2857 httpwwwunodcorgpdfcompendiumcompendium_2006_part_01_05pdf 150

httpdeathpenaltycurriculumorgstudentcabouthistoryhistoryPDF 151

httpswwwabofimedia24259report10pdf

UNHRC 38 of 44

Contrary to the made recommendations even political dissent warrants a death sentence in

several countries most notably in China and Iran In 2010 nearly 20 Kurdish people were

executed for political offences in Iran The country is known for keeping dissent especially from

the Kurds suppressed Most are executed on the grounds of moharebeh or enmity against God

Moreover challenging the power of the Ayatollah is also punishable by death These charges are

neither explicit nor in line with international guidelines over what crimes are punishable

capitally In Iran judges must handle such cases carefully as Iranian law provides for only one

punishment if an individual is found to be guilty of treason Libya too thwarts political dissent

with firm laws in place for punishing by death those who illegally form groups organizations or

associations against the state152

Saudi Arabia too is worth note for its vaguely phrased laws governing capital punishment

Intentional murder and crimes that spread ―mischief in the land (Fasad fil-ardh) merit death In

2010 the government announced that it had executed 26 people all by beheading Crimes that

―spread mischief include witchcraft and sorcery153

How is one convicted of witchcraft in the

21st century What can the international community do when regarding countries such as these

Treason arguably along with murder is the capital crime that has yet to be phased out by many

countries In some such as Brazil treason during warfare is the only crime for which a person

can be sentenced to death In the Gaza Strip under Hamas any sort of cooperation with Israeli

forces during military actions is also punishable by death In others including Algeria Bahrain

Iran and Malaysia treason is punishable by death in all circumstances The United States too has

federal laws governing treason under which traitors ―shall suffer death154

Child sex abuse is another crime that is widely held to merit the death penalty In Russia for

example according to the Russian Public Opinion Research Center an overwhelming majority

consider the death penalty to be an acceptable punishment especially in relation to molestation

155 In 2009 however Russias Constitutional Court effectively abolished the death penalty by

extending indefinitely a 13-year-old moratorium on capital punishment156

Indonesia has some of the strictest penalties for drug related crimes in the world Roughly half of

those on death row are incriminated with drug-related charges157

In 2008 though the most high

profile executions were of terrorists Three of those found responsible for the 2002 Bali

bombings were executed by shooting158

Generally speaking however a significant proportion of

152

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 153

httpwwwstategovgdrlrlshrrpt2010nea154472htm 154

httpdeathpenaltyproconorgviewresourcephpresourceID=1172 155

httpenrianrutrenddeath_penalty 156

httpwwwreuterscomarticle20091119idUSLJ330478 157

httpwwwnytimescom20080711worldasia11iht-indo114421132html 158

httpnewsbbccouk2hiasia-pacific7718246stm

UNHRC 39 of 44

the executions or death sentences recorded (in 2010) in China Egypt Indonesia Iran Laos

Libya Thailand United Arab Emirates and Yemen were for drug-related offences In December

2010 the amended Anti-Narcotics law came into force in Iran extending the scope of the death

penalty to include additional categories of illegal drugs (for example crystal meth) possession

of which became punishable by death Also around the same time the National Assembly of

Gambia voted to extend the scope of the death penalty by making the possession of more than

250g of heroin or cocaine an offence punishable by death159

Several states allow for the death penalty for crimes of blasphemy and other crimes for

nonviolent expression and association In Pakistan Aasia Bibi a Christian mother of five was

charged with blasphemy and sentenced to death after a trial largely believed to be unfair on 8

November 2010 She is currently on death row The country is also noted for its laws concerning

capital crimes The list includes 27 crimes most of which go beyond the notion of ―most serious

crimes as recommended by the International Covenant on Civil and Political Rights Extra-

marital sex and blasphemy are examples of some capital crimes in the country In December

2007 Pakistan voted against a United Nation General Assembly resolution for a moratorium on

the death penalty The year before however the nation amended its law on rape and adultery

charges which are no longer punishable by death160

As far back as 1989 recommendations have been made as to how to abolish the death penalty

Member states (of the UN) have been urged ―to publish for each category of offence for which

the death penalty is authorized and if possible on an annual basis information about the use of

the death penalty including the number of persons sentenced to death the number of executions

actually carried out the number of persons under sentence of death the number of death

sentences reversed or commuted on appeal and the number of instances in which clemency has

been granted and to include information on the extent to which the safeguards referred to above

are incorporated in national law161

The committee must inspect how far this recommendation

has been adopted and should seek to rectify the weaknesses in the system of gradually

abolishing the death penalty Can a target year be designated by which crimes meriting the death

penalty could be made universal How can countries with non-secular legal systems be brought

into the fold of international law

159

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 160

httpwwwfiacatorgenIMGpdfdppakistan-enpdf 161

httpgraduateinstitutechfacultyclaphamhrdocdocsecosocresolutiondeathpen1989html

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 23: UNHRCFINAL

UNHRC 19 of 44

its sovereignty Russia and China are among those who do not recognize the Republic while the

USA UK and France have recognized Kosovolsquos declaration of independence This highlights the

rift between the United Nations Security Council over the issue The case of Tibet is all the more

important in light of the fact that many such pockets exist in the world struggling for self-

determination

Media Links

httpwwwfreetibetorgnewsmedia2008-protests-summary

httpwwwguardiancoukworldgallery2008mar19tibetchinapicture=333178281ampindex=7

Chinarsquos Violation of Ethnic Minority Rights

One of the greatest blemishes on Chinalsquos human rights record is in the area of ethnic minorities

and the extent to which China protects ethnic minority rights On paper Chinalsquos policies are

based on ethnic equality and regional ethnic autonomy Ethnic minorities are supposed to be

benefitting from preferential policies in the political economic cultural and educational spheres

However the ground realities are infinitely different Questions have been raised over the extent

to which the government fairly provides services to these minorities and allocates resources

equally to them The Chinese government is seen to largely prefer its Han majority The

minorities claim they are exploited for their resources and in turn not even provided with the

same level of social services as the Han people China is an atheistic government and the fact

that many ethnicities garner their identity in major part from their religious affiliation leads to a

precarious situation The Mongols Tibetans and Uighurs all come to mind when discussing the

issue of China and ethnic minority rights

―Everyone is entitled to all the rights and freedoms set forth in this Declaration without

distinction of any kind such as race colour sex language religion political or other opinion

national or social origin property birth or other status Furthermore no distinction shall be

made on the basis of the political jurisdictional or international status of the country or

territory to which a person belongs whether it be independent trust non-self-governing or

under any other limitation of sovereignty

- Article 2 Universal Declaration of Human Rights

The International Convention on the Elimination of Racial Discrimination defines racial

discrimination as any distinction exclusion restriction or preference based on race colour

descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the

recognition enjoyment or exercise on an equal footing of human rights and fundamental

UNHRC 20 of 44

freedoms in the political economic social cultural or any other field of public life72

It is due to

this that the international community has adopted the norm of subsuming ethnicity under the

terminology of race

―The Peoples Republic of China is a united multi-ethnic country So far 56 ethnic groups have

been identified and recognized by the central government The population of various ethnic

groups differs greatly While the Han ethnic group has the largest population and that of the

other 55 ethnic groups is relatively small so they are customarily referred to as ethnic

minoritieslsquo According to the fifth national census conducted in 2000 the population of all the

55 ethnic minority groups totaled 10449 million accounting for 841 percent of the total

population of China73

Chinas official 55 minorities are located primarily in the south west

and north of China Only Tibet and Xinjiang have a majority population of official minorities

while all other provinces municipalities and regions of China have a Han majority

One of Chinalsquos autonomous regions is the Xinjiang Uighur Autonomous Region (XUAR)

located in western China The area is vast accounting for one sixth of Chinalsquos land and houses

around 13 major ethnicities including the Uighurs who are a predominantly Muslim people with

origins in Central Asia The Uighurs have had strained ties with the state and have often resisted

Chinese authority74

In turn the Chinese government has reacted sometimes violently against

restless factions in the region One of the most passive aggressive forms of response on the part

of the Peoplelsquos Republic has been the encouragement of the migration of the Han people ndash

Chinalsquos ethnic majority ndash to the XUAR75

Around 90 of Xinjiangs population comprised of

Uighurs in 1949 now it is estimated that Uighurs make up only about 45 of the population76

The policies in Xinjiang are said to be designed to ―promote economic development not

demographic change In reality though the influx of migrants has amplified Uighur discontent

as Han and Uighurs compete over limited jobs and natural resources77

The United Stateslsquo

Congressional-Executive Commission on China reported that in 2006 the XPCC (Xinjiang

Production and Construction Core) reserved approximately 800 of 840 civil servant job openings

for Han Chinese78

One of the causes of the Han monopoly in the employment sector is the

linguistic advantage afforded to them and perpetuated by the education system As part of its

efforts to implicitly impose a unified culture the language policy was altered by the state with

an increased focus on use of Mandarin in schools at the expense of the local languages

Methods of education special to the ethnic peoples of the XUAR including the Muslim Uighurs

are suppressed For example a campaign by the PRC in 2001 targeted religious teachers and

72

httpwww2ohchrorgenglishlawcerdhtm 73

httpenglishgovcnofficial2005-0728content_18127htm 74

httpwwwcfrorgchinaeast-turkestan-islamic-movement-etimp9179 75

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p8 76

httpnewsbbccouk2hiasia-pacific3330803stm 77

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p4 78

httpwwwcolumbiaeducunewsclips20080801UighursTWPOSTpdf

UNHRC 21 of 44

endeavored to sever ties between mosques and groups involved in allegedly ―separatist

activities Around 8000 imams were required to undergo ―political reeducation in this regard

and become ―patriotic religious personalities Ethnic minorities are educated in ways that do not

allow them to learn their own languages or practice their own religion In 2001 for example a

Muslim girl was expelled from school for praying 79

Moreover in an attempt to further its socialist agenda and bind ethnic minorities together

minority cultural activities are often hindered In its place nationalistic values are given a

premium and integrated into society so as to tie the entire country in a unified Chinese foldlsquo

Resultantly an asymmetry with regards to the provision of services and protection of cultural

identity can be found in almost every ethnic minority region in the country The repression

against minorities has wider implications on the human rights situation for all This leads to

creation of a vindictive attitude among the minorities not only against the government but also

the Han majority

In July 2009 this attitude manifested itself in

the form of severe riots between the Han and

Uighur communities in Xinjianglsquos capital city

Urumqi Ethnic tensions elevated to the point

that police involvement was made necessary

According to Chinese state media at least 150

people were killed and more than 800 were

injured The riots were reportedly sparked by a

Uighur protest over the ethnically motivated

killing of two Uighur workers in the southern

province of Guangdong

On the topic of allegations of separatism it is interesting to note that post 911 it has been noted

that the Chinese government has used concerns about terrorism as a method for suppressing

ethnic activity This is possible through the characterization of certain ethnicities as having

fundamental leanings The Muslim Uighurs fell under fire for this very reason after the

September 2001 attacks

One of the ways that the Chinese government with its Han leanings has asserted its presence in

the region is through the smokescreen of the XPCC The Peoplelsquos Liberation Army and the

XPCC are present in the region per the government to ―consolidate border defense accelerate

79

wwwminorityrightsorgdownloadphpid=29 Page 30

UNHRC 22 of 44

Xinjianglsquos development and reduce the economic burden on local governments and the local

people of all ethnic groups80

The heavy militarization of ethnic minority

regions also enables the Chinese government

to quickly respond to skirmishes between the

minorities and the Han For example clashes

between the Uighurs and the Han in the

XUAR are quickly clamped down upon The

response by Chinese authorities always

focuses on the minority groups in the region

The typical response includes a period of

strike hardlsquo security measures during which the minorities are subjected to police patrols of

crowded areas identity checks street searches increased criminal investigations and accelerated

trials The measures also include mandatory political indoctrination classes for the Uighur

population Swift Chinese response to ethnic dissidence precludes the possibility of trying

protestersrioters under due process This phenomenon also contributes to the controversy of

China and its policy of arbitrary imprisonment

Essential to any countrylsquos social progress is the protection and provision of the basic rights to all

its citizens For a country like China which has a significant standing in the international

community the degree to which human rights are upheld comes under added scrutiny Minorities

need to be guaranteed provision of not only fundamental rights but additional ones that grant

them equal opportunities

Recent Developments

3 November 2010 UN Secretary General pushes China on human rights

Ban Ki-moon the United Nations secretary general has called on China to respect human rights

after critics accused him of dodging the issue on a trip to Beijing The UN secretary general met

Hu Jintao the Chinese president but failed to challenge Mr Hu on the imprisonment of Liu

Xiaobo the democracy activist who was awarded this years Nobel Peace prize and raise the

issue of human rights81

80

httpwwwchinaorgcne-white200305269htm 81

httpwwwtelegraphcouknewsworldnewsasiachina8107148UN-Secretary-General-pushes-China-on-human-

rightshtml

UNHRC 23 of 44

5 November 2011 Yeqing Ji from Shanghai China will most likely not be able to have children

after she said two forced abortions physically impaired her uterus82

8 September 2011 The Chinese government has renewed Googlelsquos license to allow it to

continue operating its local website in the country83

13 November 2011 Seven months ago

Chinese police detained the countrylsquos most prominent artist Ai Weiwei at the airport and drove

him to a hidden location It was the beginning of what is to be a two-and-a-half month nightmare

for the architect and sculptor who is also a former darling of the Communist Party who later

turned into an outspoken government critic Ai was held on vague charges of economic crimes

was kept in isolation and subjected to Kafka-esque interrogations84

April 19 2011 Amnesty International a 21-year-old monk Phuntsog set himself on fire in an

apparent anti-government protest in March 2011 Instead of putting out the flames Chinese

police beat the young monk creating huge resentment in the monastery85

At least 11 ethnic

Tibetans have been detained for protesting against the event and against government policies

They are at risk of torture and other ill-treatment86

29 May 2011 300 Tibetan monks detained in Kirti monastery by Chinese security forces87

15 September 2011 Chinese Uighurs economic fears

Amid ethnic tensions minority regards modernization plans in Xinjiang as favoring Han Chinese

migrants88

20 November 2011 Another of Chinalsquos minorities the Hui Muslims in Ningxia do not feel

stigmatized

―There is an important reason why Hui and Han Chinese get along with each other Unlike

Muslims of the other ethnic minorities like Uighur Kazakh Kyrgyz and Tajik the Hui Muslims

speak Mandarin just like the Hans89

82

httpabcnewsgocomBusinesswoman-china-forced-abortions-leaves-unable-

childrenstoryid=14880884Tsia7LIk6so 83

httpwwwbbccouknewsbusiness-14832392 84

httpwwwthedailybeastcomnewsweek20111113ai-weiwei-speaks-out-on-his-detentionhtml 85

httphradvorgaggregatorsources10 86

httpwwwamnestyorgenlibraryassetASA170212011end75f7611-be66-4d5a-9391-

c80c43501d56asa170212011enhtml 87

httphumanrightshouseorgArticles16503html 88

httpwwwaljazeeracomvideoasia20110920119158016969449html 89

httpwwwtodayszamancomnews-263322-chinas-hui-muslims-do-not-feel-stigmatizedhtml

UNHRC 24 of 44

Conclusion

The United Nations Human Rights Council at LUMUN 2012 will be looked upon to provide a

framework for the resolution of these issues in a universal context The scope of the issues

should be expanded and applied to countries other than China The committee will have to make

recommendations which have universal application and resolve all aspects of the issue

comprehensively For any queries related to the study guide please do contact either (or both)

the committee directors at the given addresses

UNHRC 25 of 44

Topic Area B Abolishing the Death Penalty

Introduction to the Topic Area

The death penalty is formally defined as the execution of an offender sentenced to death after

conviction by a court of law of a criminal offenselsquo90

The concept of a capital crime is subjective

and states have made use of this practice in response to multiple forms of crime The use of the

death penalty has produced much controversy with regard to its apparent violation of

fundamental human rights as delineated in the Universal Declaration of Human Rights and

subsequent human rights charters and treaties It is asserted that the use of death penalty is in

contravention to the peopleslsquo right to life promised to every individual under Article 3 of the

Declaration91

Moreover Article 2 of the Charter of Fundamental Rights of the European Union

lucidly bars the imposition of death penalty as a form of punishment92

Arguments against the

use of death penalty are also made on the grounds of inhumane methods which are employed to

see out the process Historically multiple methods have been used which include death by

hanging severing of the head lethal injection shooting and electrocution93

94

As a response states have made keen efforts to abolish

the death penalty particularly in the last two decades as

can be interpreted from the graph on the right which

represents the number of states that have abolished the

death penalty Countries belonging to the European

region with the exclusion of Russia and Belarus have

sought to revoke the use of the practice The death

penalty is most commonly seen to be a formal practice

in most of the developing countries The trend is

apparent in Latin America Africa and Asia

96 countries have formally abandoned the use of death penalty 58 countries allow the use95

Other states have abolished the penalty in practice but the laws remain in place for the

imposition of the penalty as a response to certain crimes The imposition of the death penalty has

90

httpwwwbritannicacomEBcheckedtopic93902capital-punishment 91

httpwwwunorgendocumentsudhr 92

httpwwweuroparleuropaeucharterpdftext_enpdf 93

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffle

re-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 94

httpwwwdeathpenaltyinfoorgmethods-execution 95

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf

Figure 1 (Drag to enlarge)

UNHRC 26 of 44

seen a decline over the recent years with a fall in the number of executions that take place

annually It would however be incorrect to assume that the practice is not prevalent or widely in

effect Amnesty International reported that at least 2024 new death sentences were imposed in 67

countries in 2010 Moreover there were at least 17833 people sentenced to death worldwide at

the end of 201096

Again these are minimum figures which are the safest that can be inferred

from the given research There were 527 known executions carried out in 2010 globally97

This

figure however does not include the number of executions that took place in China where

analysts believe that more than a thousand people were put to death in the past year

The statistics represent the number of people executed through capital punishment One way to

formally define capital punishment is to regard it as the state sanctioned killing of an individual

through a judicial process as a punishment for a crime (defined as a capital crime by the state)98

Capital punishment is the most obvious and prevalent manifestation of the death penalty It is

often perceived as a statelsquos right in order to preserve law and order against any individual who

engages in serious crimes that threaten other individuals or the state Those who advocate against

the use of capital punishment label it as a symptom of a culture of violence not a solution to

itlsquo99

The controversy surrounding the topic is based on the legal ethical and moral acceptability

of the statelsquos right to an individuallsquos life The debate entails several social and economic factors

some of which will be reviewed in closer detail in the relevant section of this guide

One of the most striking aspects related to the issue is the imposition of the capital punishment

on juveniles The sentencing of juveniles to death is in clear breach of international law The

morality and validity of such a practice is often called into question and has been put under

relentless scrutiny despite all of which the practice is still carried out in a number of countries

Historically the United States China and Iran have the worst records relating to juvenile death

sentences100

The study guide also includes a separate section for the case of juveniles in which

the legal and social aspects of the problems are detailed

As stated states have made use of the death penalty to punish crimes of varying natures The use

of the death penalty is reserved for only the most seriouslsquo crimes as put forth in international

law101

The notion of a capital crime however is a subjective one states that have doled out

death sentences have defined it differently In certain countries the death penalty is only used to

charge criminals accused of war crimes In other countries the penalty is reserved for crimes like

96

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf 97

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010 98

httpusersrcncommwooddeathpenhtml 99

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 100

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 101

httpwwwunorgdocumentsecosocdocs1995e1995-78htm

UNHRC 27 of 44

murder rape or even robbery States also use the death penalty against individuals who are guilty

of treason The issue however is that many states practicing the death penalty impose the

punishment even when the crimes do not meet the threshold for the aforementioned most

seriouslsquo crimes The ability of states to define what constitutes as a capital crime has led to states

abusing their powers as has been observed in the sentences ordained by military courts

Moreover even the radicals who make the argument of the punishment fitting the crime agree

that in many instances individuals have been executed for softlsquo crimes crimes that were

certainly not tantamount to charges of murder or crimes against humanity The issue of apparent

violations of human rights is further exacerbated in these instances The study guide will discuss

the universal crimes that have resulted in the awarding of the death penalty and examine the

issue further The committee will be expected to discuss the feasibility of drawing up an

international definition of crimes which in isolated instances perhaps may be appropriate for a

sentence like the death penalty

Another pertinent aspect surrounding the debate is that of extrajudicial killings The execution of

a person by state authorities without the authority of a judicial proceeding is termed as an

extrajudicial killing Many states have used extrajudicial killings to establish their authority and

order without having to wade through the legal process By doing so they have deprived scores

of people of their fundamental right to free and fair trials Governments have also employed this

tactic to exercise political aggression and to suppress dissent A particular point of concern is the

fact that some states have made use of these killings even when they have officially revoked the

imposition of the death penalty Extrajudicial killings are carried out persistently in many

countries ndash the list includes countries like Iran Iraq Israel Philippines102

Most recently the

killing of Anwar al-Awlaki and Samir Khan in Yemen by a sanctioned National Security Council

move by the USA was an example of states embarking on such paths to eliminate threats to

national securitylsquo103

102

Multiple citations for each country can be found in the second paragraph article titled Extrajudicial killinglsquo on

Wikipedia 103

httpwwwtelegraphcouknewsworldnewsbarackobama7564581Barack-Obama-orders-killing-of-US-cleric-

Anwar-al-Awlakihtml

UNHRC 28 of 44

Wrongful convictions lead many to believe in the inherent incapacity of the death penalty to

serve justice On September 21 2011 US citizen Troy Davis was executed in Georgia after

which seven of the nine witnesses who testified against him in the case that led to his execution

recounted or retracted their evidences A petition with nearly one million signatures was put

forth to reconsider his case it was rejected On the same day a 17 year old boy was publicly

hanged in Iran for killing a popular athlete his justification based on self-defense was ignored

Also on the same day a Pakistani national was executed in China on grounds of drug trafficking

an offence that does not often result in capital punishment The need for the resolution of this

issue is pressing and the committee needs to deal with all aspects of the problem in a

comprehensive and enduring manner104

Capital Punishment

In 2010 23 countries implemented capital punishment A total of 527 executions (plus the 1000+

carried out in China alone) were known to have taken place with Iran Yemen USA and North

Korea meting out a significant number of sentences105

The figure is lower than the records

computed for years past There are more states which are now abolitionist either in law or in

practice with regard to the imposition of the punishment Gabon was officially the last country

to rescind the practice while bills calling for an end to capital punishment have been presented

to parliaments in Lebanon Mali Mongolia and South Korea106

Renewed efforts are

104

httpwwwamnestyorgennews-and-updatesus-executes-death-row-prisoner-troy-davis-2011-09-21 105

httpwwwguardiancouknewsdatablog2011mar29death-penalty-countries-world 106

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010

UNHRC 29 of 44

simultaneously being made on the international front to implement laws against capital

punishment A third resolution establishing a moratorium on the use of death penalty passed the

UN General Assembly on December 21 2010107

Despite the increasing momentum towards an eventual elimination of the practice the number of

executions taking place annually is a cause of major concern Advocates of the death penalty

assert that the practice is an effective means of deterring crime in society Public executions are

often held in Iran Afghanistan and Palestine for example to demonstrate the fate awaiting

those who commit similar crimes108

Arguments are made on the grounds of justice that it is

proper and fair to take an eye for an eye and a life for a life and that some individuals deserve

it for the crimes they commit

Those opposing the practice question the morality of an action sanctioned by the state which

endorses deprivation of the right to life a fundamental human right under the Universal

Declaration of Human Rights109

There are inescapable flaws within legal systems which are

aggravated by discrimination prosecutorial misconduct and inadequate legal representation

Moreover the risk of executing the innocent can never be eliminated110

An alternative is

presented in the form of imprisonment for life without parole which results in a parallel debate

is imprisonment for life a viable surrogate to the practice of death penalty A thread from this

debate also relates to the economic feasibility of carrying out a death sentence as opposed to the

feasibility of imprisonment for life

Deterrence

Capital punishment is often propagated as an adequate approach in the deterrence and prevention

of crime The logic is that if murderers are sentenced to death potential murderers will think

twice before killing for fear of losing their own life The deterrence theory presumes that the

once the punishment for a certain crime is established the criminal by committing the crime

voluntarily assumes the risk of receiving the prescribed punishment for the crime Only when the

most severe punishment has been set will there be a possibility of an individual evaluating their

actions in light of the consequences111

107

httpwwwundemocracycomA-RES-62-149pdf 108

httpwwwamnestyorgennews-and-updatessharp-rise-public-executions-iran-executes-first-juvenile-

offenders-2011-2011-04-27 109

wwwunorgendocumentsudhr 110

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 111

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 30 of 44

The death penalty it is asserted ensures that convicted criminals do not offend again moreover

it is deemed to be a just penalty for atrocious crimes It is further alleged that many criminals

who are set free even after lengthy sentences regress and go on to commit heinous crimes

Therefore there should never be the possibility of a release clause112

The deterrence theory is modeled on the grounds of human psychology logic and rationale As a

professor of jurisprudence Ernest van den Haag PhD wrote ―Common sense lately bolstered

by statistics tells us that the death penalty will deter murder if anything can People fear nothing

more than death Therefore nothing will deter a criminal more than the fear of death These

statements were further validated by a US Supreme Court Justice who said on record that

Prima facie the penalty of death is likely to have a stronger effect as a deterrent to normal

human beings than any other form of punishmentlsquo113

Numerous studies have been conducted on

the subject with varying results One of the most established studies was conducted in USA

using a panel data set of over 3000 counties from 1977 to 1996 which concluded that on

average one death sentence resulted in 18 fewer murders114

Delegates will be expected to be

familiar with other similar studies

These studies are commonly refuted as not crediblelsquo by opponents of the capital punishment

who also deny the correlation between crime and death penalty as a fabricated relationship which

cannot be empirically established115116

A study of the relationship between capital punishment

and the incidence of murder was conducted for the UN in 1988 and updated in 2002 The

conclusion was ―The investigation has not provided scientific proof that executions have more

deterrent effect than life imprisonment It is unlikely that such evidence will ever come

Deterrence hypothesis finds no support in the survey117

Another counter-argument asserts that crime is still a persistent feature of the societies that

continue to award the death penalty while many of the abolitionist states enjoy low crime rates

This can be evidenced by comparing the crime rate in USA or Pakistan with that of Canada or

some European state In Canada for example the homicide rate per 100000 fell from a peak of

309 in 1975 the year before the abolition of the death penalty for murder to 241 in 1980 and

in 2003 27 years after abolition the homicide rate was 173 per 100000 44 per cent lower than

in 1975118

112

httpwwwdeathpenaltyinfoorgfacts-about-deterrence-and-death-penalty 113

httpdeathpenaltyproconorgviewresourcephpresourceID=002000 114

httpdeathpenaltyproconorgsourcefilesThe20Deterrent20Effect20of20Capital20Punishmentpdf ndash

Delegates should carefully examine certain parts of this document to establish the credibility of the assertions made

They should also invest in trying to locate studies that refute the assertions made in this and similar studies 115

httpwwwdeathpenaltyinfoorglaw-enforcement-views-deterrencelawenforcement 116

httpwwwdeathpenaltyinfoorgDonohueDeterpdf 117

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 118

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml

UNHRC 31 of 44

The lack of evidence on the production of a unique deterrent effect points to the danger of

relying on the deterrence hypothesis as a basis for public policy on the death penalty

Retribution amp Morality

An important terminology that delegates need to familiarize themselves with is that of

―retributivism119

It is defined as ―a policy of criminal justice that sponsors the punishment of

criminals in retribution for the harm they have inflicted120

Criminals deserve to be punished in

proportion to the gravity of their crime regardless of whether the victim or anyone else desires

it we may all deeply regret having to carry out the punishment but consider it warrantedlsquo is

what many say in defense of the theory121

The need for the establishment of a visibly just state arises from the potential risks of not having

one As has been visible in many developing countries with shaky legal systems when criminals

are not adequately punished for their unlawful behavior the public takes the law into its own

hands and deals out vigilante justice It is asserted that retributivism is essential for a functioning

society where individuals respect the supremacy of law

The concept of retribution in society is also grounded in religious beliefs The concept of an eye

for an eye has been a part of all three Abrahamic traditions However in the modern world it is

Islamic nations that still retain the practice based on these grounds Similar traditions can be

found in Hinduism Christianity and Buddhism as well as other religions in different parts of the

world In many non-secular countries the constitutions and state laws are derived from religious

doctrines

Opponents dismiss this aspect of the argument as being emotionally charged with little rational

logic to support the contention They claim that the establishment of capital punishment gives

birth to a culture of violence endorsed by the state It perpetuates the cycle of aggression and

brutality something which the state should be actively inhibiting not endorsing

Wrongful Convictions

The death penalty carries with it the danger of wrongfully convicting an innocent person for

crimes he did not commit There is the potential for capital punishment to evolve into sheer

miscarriage of justice as in certain circumstances states are often seen to rush the trials and

convict the accused hastily This practice takes foremost apparently in military courts often in

119

Cavadino M amp Dignan J (1997) The Penal System An Introduction (2nd ed) p 39 London Sage 120

httpdictionaryreferencecombrowseretributivism 121

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 32 of 44

the developing or lesser-developed countries where the system of law is not properly established

It is not however exclusive to these countries Examples can be drawn from countries like

Philippines Thailand Iran and Palestine to name just a few where executions are carried out at

alarming pace removing the possibility of reviews

On 15 August 2004 Atefah Rajabi Sahaaleh was hanged in a public square in the Iranian city of

Neka Her death sentence was imposed for adultery and crimes against chastity122123

Atefah

was executed a week after the trial was run Following the execution the Judge for the case was

arrested for investigation by the Intelligence Ministry The media reported that in addition to the

confession of his rape of Atefeh Judge Rezai who served as judge jury and executioner also

confessed to torturing her during interrogations to extract names of others she had relations with

No transcripts from court proceedings were recorded The State alleged that Atefah was 22 at the

time of her execution A witness later claimed The judge just looked at her body because of

the developed physique and declared her as 22124

ndash her birth certificate revealed she was born

in 1988 Furthermore Atefah did not have access to a proper defense where she could contest

charges leveled against her This is one example of many such cases of miscarriage of justice

Something that recurs in these cases is the failure of the police or prosecuting authorities to

prevent the use of unreliable witnesses the misuse of evidence or confessions and the provision

of inadequate defense representation The advent of DNA profiling and the use of it as positive

evidence in criminal cases has resulted in the exoneration of multiple death row inmates on

grounds of forensic evidence or lack thereof Since 1973 138 people have been released from

death row in the United States after it was proven that they were innocent125

In 2009 Paul

House was cleared of murder and exonerated in Tennessee USA after having served 22 years

on death row His innocence was proclaimed in light of substantial additional DNA testing and

further investigationlsquo 126

Amnesty International has noted examples of wrongful convictions from elsewhere as well

including Jamaica Japan China Nigeria and Tanzania127

Paul G Cassell a former law clerk to

the Chief Justice of USA stated the mistaken release of guilty murderers should be of far greater

concern than the speculative and heretofore nonexistent risk of the mistaken execution of an

innocent personlsquo highlighting the case made by those who advocate the death penalty even in

light of wrongful convictions128

122

httpwwwcosmolearningcomdocumentariesexecution-of-a-teenage-girl1 123

httpnewsbbccouk2hi5217424stm 124

httpnewsbbccouk2hi5217424stm 125

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 126

httparticlescnncom2009-05-13justicetennesseeexonerated_1_death-row-inmate-dna-evidence-house-

arrest_s=PMCRIME 127

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 128

httpdeathpenaltycurriculumorgstudentcaboutargumentstestimony3bhtm

UNHRC 33 of 44

Alternative to Death Penalty

All abolitionist states have reverted to the practice of sentencing criminals to life imprisonment

(some without parole) which is also termed as death by incarceration Widely regarded as a more

humane course of action life imprisonment is also alleged to be a more economical practice

While ensuring public safety by keeping criminals away from society this system also saves the

lives of innocent people who have been falsely or wrongfully convicted The setup inhibits and

curbs the cycle of violence while retaining the deterrence factor it is strongly asserted

Advocates for the death penalty are averse towards life imprisonment for a number of reasons

They cite the unreliability of the system as one of the flaws which impedes the possibility of

such a sentence being successful A certain James Moore serves as a valid example in this case

In 1962 James Moore raped and strangled 14-year-old Pamela Moss The victimlsquos parents opted

out of capital punishment for Moore and he was instead sentenced to life in prison without

parole Twenty years later a change in sentencing laws in 1982 renders James Moore eligible for

parole every two years129130

Kenneth McDuff is another example McDuff was convicted and sentenced to life imprisonment

Years later due to the issue of overcrowding in prisons McDuff was released following which

he killed eight more people McDufflsquos example is of an individual from a developed country

with an established legal system in place131

Overcrowding is a feature of prisons in developing

or lesser developed countries In many such states criminals have also been known to easily

break out from penitentiaries

The economic aspect of the debate is murky at best There is a lack of empirical data on the

subject which is why the arguments of both these sides cannot be settled beyond doubt

Advocates of capital punishment insist that the overall costs of the practice are far lesser than the

costs of housing an inmate for a lifetime132

They also suggest that the life imprisonment allows

criminals to conceive new habeas corpus petitions which on legal grounds cannot be rejected

automatically resulting in more trials

On the other hand substantial arguments are made which stress that the cost of legal proceedings

in capital cases is in truth more than that of other cases States and nations spend a significant

portion of the taxpayerlsquos money in meting out such punishments133

Delegates when addressing

this portion of the debate will need to be aware of the financial aspects of the issue as it forms

for many states an important part of whether capital punishment should be revoked or

not

129

httpwesleylowecomcphtmldeter 130

httpwwwnytimescomkeywordparole 131

httpwesleylowecomcphtmldeter 132

Ibid ndash view section titled Capital Punishment and its costslsquo 133

httpwwwamnestyusaorgour-workissuesdeath-penaltyus-death-penalty-factsdeath-penalty-cost

UNHRC 34 of 44

Imposition of Death Penalty on Juveniles

The prohibition on the death penalty for crimes committed by juvenile offendersmdashpersons under

age 18 at the time of the offensemdashis well established in international law specifically in the

Convention on the Rights of Child

ldquoNo child shall be subjected to torture or other cruel inhuman or degrading treatment or

punishment Neither capital punishment nor life imprisonment without possibility of release shall

be imposed for offences committed by persons below eighteen years of agerdquo134

- Article 37(a) Convention on the Rights of Child

ldquoSentence of death shall not be imposed for crimes committed by persons below eighteen years

of age and shall not be carried out on pregnant womenrdquo135

- Article 6(5) International Covenant on Civil and Political Rights

The treaties are a unanimously agreed set of non-negotiable standards and obligations By

acceding to the treaties and ratifying them governments commit to protecting and ensuring

childrens rights and to holding themselves accountable for this commitment before the

international community

Even though the practice of capital punishment on juveniles is relatively rare however in clear

contravention of international law nine countries have executed offenders who were juveniles at

the time of their crimes between 1990 and 2005136

These countries include the Peoples Republic

of China (PRC) the Democratic Republic of the Congo Iran Nigeria Pakistan Saudi Arabia

Sudan the United States and Yemen137

The USA has since moved to implement a ban on capital

punishment for juveniles However in most other countries of the preceding list the practice is

still enshrined in the judicial system Iranlsquos record in particular has been abominable over the last

decade It has carried out 39 executions of persons under the age of 18 since 2005 Presently

over a hundred individuals are placed on death row for crimes committed as juveniles The

executions of Mahmoud Asgari Ayaz Marhoni and Makwan Moloudzadeh became international

symbols of Irans child capital punishment and the judicial system that hands down such

134

httpwww2ohchrorgenglishlawcrchtm 135

httpwww2ohchrorgenglishlawccprhtm 136

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf - This document by the Human Rights Watch

called The Last Holdoutslsquo is a good summary of juvenile executions and should be reviewed 137

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 - Contains a list with

statistics and details of countries which have allowed the imposition of death sentence to juveniles

UNHRC 35 of 44

sentences138139140

Saudi Arabia and China too have questionable records that need to be

scrutinized further

While regional treaties and charters usually substantiate international law the Arab Human

Rights Charter of 2004 is unique among regional and international treaties in that the ban on the

juvenile death penalty in it is not absolute but merely optional141

Furthermore national laws in states that observe such a practice are in violation of

international legally-binding charters In Iran and Saudi Arabia laws usually treat a child the

same way as an adult criminal offender would be treated Article 10(3) of the International

Covenant on Civil and Political Rights emphasizes the need for demarcation between the

handling of children and that of adults in stating ―Juvenile offenders shall be segregated from

adults and be accorded treatment appropriate to their age and legal status142

The definition of a child in these Muslim states is unclear as adulthood is associated with

attainment of puberty which is a relative concept The Committee on the Rights of the Child in

January 2005 censured the Saudi government for its practice of imposing the death penalty on

juveniles terming it a serious violation of the fundamental rights The committee was deeply

alarmed over the discretionary power judges hold to treat juveniles as adults as was stated in

the committeelsquos report Iran too was strongly condemned following the release of an

international report highlighting the dire situation in Iran by the International for Human Rights 143

138

httpwwwfoxnewscomstory0293329798200html 139

httpnewsbbccouk2himiddle_east7130380stm 140

httpenwikipediaorgwikiCapital_punishmentIran 141

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 142

httpwww2ohchrorgenglishlawccprhtm 143

httpwwwfidhorgIMGpdfRapport_Iran_finalpdf

UNHRC 36 of 44

On August 19 2008 Iranian authorities executed Seyyed Reza Hejazi at Isfahan Central Prison

for his role in a murder committed in 2003 when he was 15 Hejazi was tried as an adult by

Branch 106 of the Isfahan General Court even if he did not qualify as one under international

stipulations and sentenced to death on November 14 2005144

In Saudi Arabia Mu`id bin

Husayn bin Abu al-Qasim bin `Ali Hakami was executed on July 10 2007 for a murder he

allegedly committed three years earlier when he was 13 years old145

The judges in these states

because of the implementation of the Sharialsquo law have a large amount of discretion with regard

to their rulings This discretion is often abused in the interrogation and judicial proceedings In

Pakistan authorities hanged Mutaber Khan in Peshawar Central Prison on June 13 2006 on

charges of murder of five people The fact that he was held in the juvenile wing of Peshawar

Central prison and the evidence presented by the accused confirming that his age was below 18

at the time of the killings were not taken into account during the trials and Mutaber was charged

as an adult in the case146

While the above does not cover exhaustively the practice of capitally punishing juveniles the

committee is expected to be well read on the matter The committee will be required to devise

ways to strictly apply the existing international law on the subject to curtail further deaths of

juveniles by states A series of recommendations on better implementation of international

covenants will be expected from the committee Delegates at UNHRC will also have to

familiarize themselves with the stipulations in the national laws of countries practicing juvenile

death penalties (Iran Saudi Arabia Pakistan Nigeria Sudan Yemen and UAE among others) to

discuss how these states are constitutionally able to bend international law and mete out the

illegal punishments

144

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 145

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 146

See FIDH and Human Rights Commission of Pakistan ―Slow march to the gallows and ―Condemned Prisoner

Executed Dawn Newspaper Karachi June 14 2005 httpwwwdawncom20060614nat16htm

UNHRC 37 of 44

Universality of Laws Incurring the Death Penalty

In countries which have not abolished the death penalty capital punishment may be imposed

only for the most serious crimes it being understood that their scope should not go beyond

intentional crimes with lethal or other extremely grave consequences

- Safeguards guaranteeing protection of the rights of those facing the death penalty147

Laws incurring the death penalty or capital crimes have certain uniformity the world over This

is of course barring states that are religiously affiliated and whose law systems are not secular

in nature The list of capital crimes for those states with non-secular legal systems is slightly

different The Human Rights Commission had decided that the imposition in the State party of

the death penalty for offences which cannot be characterized as the most serious including

apostasy committing a third homosexual act illicit sex embezzlement by officials and theft by

force are incompatible with Article 6 of the Covenant Economic offences including

embezzlement drug related offences political offences and robbery were also referred to148

The reason why looking into capital crimes and trying to garner a global impression of them is

important is that the death penalty can only realistically be abolished in a piecemeal way This

process will entail shortening the list of capital crimes The UN formally notes that ―in order

fully to guarantee the right to life provided for in article 3 of the Universal Declaration of

Human Rights the main objective to be pursued is that of progressively restricting the number of

offences for which capital punishment may be imposed with a view to the desirability of

abolishing this punishment in all countries149

The first established death penalty laws date as far back as the Eighteenth Century BC in the

Code of King Hammaurabi of Babylon which codified the death penalty for 25 different crimes

By the 1700s 222 crimes were punishable by death in Britain including stealing cutting down a

tree and robbing a rabbit warren In the 19th

century the death penalty was eliminated for over

100 of the 222 crimes punishable by death 150

In modern times the UN Special Rapporteur on

extrajudicial summary or arbitrary executions has stated that the death penalty should be

eliminated for economic crimes and drug-related offences and that the restrictions to its use

―exclude the possibility of death sentences for so-called victimless offences ndash including acts of

treason espionage and other vaguely defined acts usually described as crimes against the Statelsquo

or disloyaltylsquo and ―actions primarily related to prevailing moral values such as adultery and

prostitution as well as matters of sexual orientation151

147

httpwww2ohchrorgenglishlawpdfprotectionpdf 148

httpwwwunhchrchtbsdocnsf0bc310a747155dff88025655300537faeOpendocument 149

General Assembly resolution 2857 httpwwwunodcorgpdfcompendiumcompendium_2006_part_01_05pdf 150

httpdeathpenaltycurriculumorgstudentcabouthistoryhistoryPDF 151

httpswwwabofimedia24259report10pdf

UNHRC 38 of 44

Contrary to the made recommendations even political dissent warrants a death sentence in

several countries most notably in China and Iran In 2010 nearly 20 Kurdish people were

executed for political offences in Iran The country is known for keeping dissent especially from

the Kurds suppressed Most are executed on the grounds of moharebeh or enmity against God

Moreover challenging the power of the Ayatollah is also punishable by death These charges are

neither explicit nor in line with international guidelines over what crimes are punishable

capitally In Iran judges must handle such cases carefully as Iranian law provides for only one

punishment if an individual is found to be guilty of treason Libya too thwarts political dissent

with firm laws in place for punishing by death those who illegally form groups organizations or

associations against the state152

Saudi Arabia too is worth note for its vaguely phrased laws governing capital punishment

Intentional murder and crimes that spread ―mischief in the land (Fasad fil-ardh) merit death In

2010 the government announced that it had executed 26 people all by beheading Crimes that

―spread mischief include witchcraft and sorcery153

How is one convicted of witchcraft in the

21st century What can the international community do when regarding countries such as these

Treason arguably along with murder is the capital crime that has yet to be phased out by many

countries In some such as Brazil treason during warfare is the only crime for which a person

can be sentenced to death In the Gaza Strip under Hamas any sort of cooperation with Israeli

forces during military actions is also punishable by death In others including Algeria Bahrain

Iran and Malaysia treason is punishable by death in all circumstances The United States too has

federal laws governing treason under which traitors ―shall suffer death154

Child sex abuse is another crime that is widely held to merit the death penalty In Russia for

example according to the Russian Public Opinion Research Center an overwhelming majority

consider the death penalty to be an acceptable punishment especially in relation to molestation

155 In 2009 however Russias Constitutional Court effectively abolished the death penalty by

extending indefinitely a 13-year-old moratorium on capital punishment156

Indonesia has some of the strictest penalties for drug related crimes in the world Roughly half of

those on death row are incriminated with drug-related charges157

In 2008 though the most high

profile executions were of terrorists Three of those found responsible for the 2002 Bali

bombings were executed by shooting158

Generally speaking however a significant proportion of

152

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 153

httpwwwstategovgdrlrlshrrpt2010nea154472htm 154

httpdeathpenaltyproconorgviewresourcephpresourceID=1172 155

httpenrianrutrenddeath_penalty 156

httpwwwreuterscomarticle20091119idUSLJ330478 157

httpwwwnytimescom20080711worldasia11iht-indo114421132html 158

httpnewsbbccouk2hiasia-pacific7718246stm

UNHRC 39 of 44

the executions or death sentences recorded (in 2010) in China Egypt Indonesia Iran Laos

Libya Thailand United Arab Emirates and Yemen were for drug-related offences In December

2010 the amended Anti-Narcotics law came into force in Iran extending the scope of the death

penalty to include additional categories of illegal drugs (for example crystal meth) possession

of which became punishable by death Also around the same time the National Assembly of

Gambia voted to extend the scope of the death penalty by making the possession of more than

250g of heroin or cocaine an offence punishable by death159

Several states allow for the death penalty for crimes of blasphemy and other crimes for

nonviolent expression and association In Pakistan Aasia Bibi a Christian mother of five was

charged with blasphemy and sentenced to death after a trial largely believed to be unfair on 8

November 2010 She is currently on death row The country is also noted for its laws concerning

capital crimes The list includes 27 crimes most of which go beyond the notion of ―most serious

crimes as recommended by the International Covenant on Civil and Political Rights Extra-

marital sex and blasphemy are examples of some capital crimes in the country In December

2007 Pakistan voted against a United Nation General Assembly resolution for a moratorium on

the death penalty The year before however the nation amended its law on rape and adultery

charges which are no longer punishable by death160

As far back as 1989 recommendations have been made as to how to abolish the death penalty

Member states (of the UN) have been urged ―to publish for each category of offence for which

the death penalty is authorized and if possible on an annual basis information about the use of

the death penalty including the number of persons sentenced to death the number of executions

actually carried out the number of persons under sentence of death the number of death

sentences reversed or commuted on appeal and the number of instances in which clemency has

been granted and to include information on the extent to which the safeguards referred to above

are incorporated in national law161

The committee must inspect how far this recommendation

has been adopted and should seek to rectify the weaknesses in the system of gradually

abolishing the death penalty Can a target year be designated by which crimes meriting the death

penalty could be made universal How can countries with non-secular legal systems be brought

into the fold of international law

159

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 160

httpwwwfiacatorgenIMGpdfdppakistan-enpdf 161

httpgraduateinstitutechfacultyclaphamhrdocdocsecosocresolutiondeathpen1989html

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 24: UNHRCFINAL

UNHRC 20 of 44

freedoms in the political economic social cultural or any other field of public life72

It is due to

this that the international community has adopted the norm of subsuming ethnicity under the

terminology of race

―The Peoples Republic of China is a united multi-ethnic country So far 56 ethnic groups have

been identified and recognized by the central government The population of various ethnic

groups differs greatly While the Han ethnic group has the largest population and that of the

other 55 ethnic groups is relatively small so they are customarily referred to as ethnic

minoritieslsquo According to the fifth national census conducted in 2000 the population of all the

55 ethnic minority groups totaled 10449 million accounting for 841 percent of the total

population of China73

Chinas official 55 minorities are located primarily in the south west

and north of China Only Tibet and Xinjiang have a majority population of official minorities

while all other provinces municipalities and regions of China have a Han majority

One of Chinalsquos autonomous regions is the Xinjiang Uighur Autonomous Region (XUAR)

located in western China The area is vast accounting for one sixth of Chinalsquos land and houses

around 13 major ethnicities including the Uighurs who are a predominantly Muslim people with

origins in Central Asia The Uighurs have had strained ties with the state and have often resisted

Chinese authority74

In turn the Chinese government has reacted sometimes violently against

restless factions in the region One of the most passive aggressive forms of response on the part

of the Peoplelsquos Republic has been the encouragement of the migration of the Han people ndash

Chinalsquos ethnic majority ndash to the XUAR75

Around 90 of Xinjiangs population comprised of

Uighurs in 1949 now it is estimated that Uighurs make up only about 45 of the population76

The policies in Xinjiang are said to be designed to ―promote economic development not

demographic change In reality though the influx of migrants has amplified Uighur discontent

as Han and Uighurs compete over limited jobs and natural resources77

The United Stateslsquo

Congressional-Executive Commission on China reported that in 2006 the XPCC (Xinjiang

Production and Construction Core) reserved approximately 800 of 840 civil servant job openings

for Han Chinese78

One of the causes of the Han monopoly in the employment sector is the

linguistic advantage afforded to them and perpetuated by the education system As part of its

efforts to implicitly impose a unified culture the language policy was altered by the state with

an increased focus on use of Mandarin in schools at the expense of the local languages

Methods of education special to the ethnic peoples of the XUAR including the Muslim Uighurs

are suppressed For example a campaign by the PRC in 2001 targeted religious teachers and

72

httpwww2ohchrorgenglishlawcerdhtm 73

httpenglishgovcnofficial2005-0728content_18127htm 74

httpwwwcfrorgchinaeast-turkestan-islamic-movement-etimp9179 75

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p8 76

httpnewsbbccouk2hiasia-pacific3330803stm 77

httpwwwcfrorgchinauighurs-chinas-xinjiang-regionp16870p4 78

httpwwwcolumbiaeducunewsclips20080801UighursTWPOSTpdf

UNHRC 21 of 44

endeavored to sever ties between mosques and groups involved in allegedly ―separatist

activities Around 8000 imams were required to undergo ―political reeducation in this regard

and become ―patriotic religious personalities Ethnic minorities are educated in ways that do not

allow them to learn their own languages or practice their own religion In 2001 for example a

Muslim girl was expelled from school for praying 79

Moreover in an attempt to further its socialist agenda and bind ethnic minorities together

minority cultural activities are often hindered In its place nationalistic values are given a

premium and integrated into society so as to tie the entire country in a unified Chinese foldlsquo

Resultantly an asymmetry with regards to the provision of services and protection of cultural

identity can be found in almost every ethnic minority region in the country The repression

against minorities has wider implications on the human rights situation for all This leads to

creation of a vindictive attitude among the minorities not only against the government but also

the Han majority

In July 2009 this attitude manifested itself in

the form of severe riots between the Han and

Uighur communities in Xinjianglsquos capital city

Urumqi Ethnic tensions elevated to the point

that police involvement was made necessary

According to Chinese state media at least 150

people were killed and more than 800 were

injured The riots were reportedly sparked by a

Uighur protest over the ethnically motivated

killing of two Uighur workers in the southern

province of Guangdong

On the topic of allegations of separatism it is interesting to note that post 911 it has been noted

that the Chinese government has used concerns about terrorism as a method for suppressing

ethnic activity This is possible through the characterization of certain ethnicities as having

fundamental leanings The Muslim Uighurs fell under fire for this very reason after the

September 2001 attacks

One of the ways that the Chinese government with its Han leanings has asserted its presence in

the region is through the smokescreen of the XPCC The Peoplelsquos Liberation Army and the

XPCC are present in the region per the government to ―consolidate border defense accelerate

79

wwwminorityrightsorgdownloadphpid=29 Page 30

UNHRC 22 of 44

Xinjianglsquos development and reduce the economic burden on local governments and the local

people of all ethnic groups80

The heavy militarization of ethnic minority

regions also enables the Chinese government

to quickly respond to skirmishes between the

minorities and the Han For example clashes

between the Uighurs and the Han in the

XUAR are quickly clamped down upon The

response by Chinese authorities always

focuses on the minority groups in the region

The typical response includes a period of

strike hardlsquo security measures during which the minorities are subjected to police patrols of

crowded areas identity checks street searches increased criminal investigations and accelerated

trials The measures also include mandatory political indoctrination classes for the Uighur

population Swift Chinese response to ethnic dissidence precludes the possibility of trying

protestersrioters under due process This phenomenon also contributes to the controversy of

China and its policy of arbitrary imprisonment

Essential to any countrylsquos social progress is the protection and provision of the basic rights to all

its citizens For a country like China which has a significant standing in the international

community the degree to which human rights are upheld comes under added scrutiny Minorities

need to be guaranteed provision of not only fundamental rights but additional ones that grant

them equal opportunities

Recent Developments

3 November 2010 UN Secretary General pushes China on human rights

Ban Ki-moon the United Nations secretary general has called on China to respect human rights

after critics accused him of dodging the issue on a trip to Beijing The UN secretary general met

Hu Jintao the Chinese president but failed to challenge Mr Hu on the imprisonment of Liu

Xiaobo the democracy activist who was awarded this years Nobel Peace prize and raise the

issue of human rights81

80

httpwwwchinaorgcne-white200305269htm 81

httpwwwtelegraphcouknewsworldnewsasiachina8107148UN-Secretary-General-pushes-China-on-human-

rightshtml

UNHRC 23 of 44

5 November 2011 Yeqing Ji from Shanghai China will most likely not be able to have children

after she said two forced abortions physically impaired her uterus82

8 September 2011 The Chinese government has renewed Googlelsquos license to allow it to

continue operating its local website in the country83

13 November 2011 Seven months ago

Chinese police detained the countrylsquos most prominent artist Ai Weiwei at the airport and drove

him to a hidden location It was the beginning of what is to be a two-and-a-half month nightmare

for the architect and sculptor who is also a former darling of the Communist Party who later

turned into an outspoken government critic Ai was held on vague charges of economic crimes

was kept in isolation and subjected to Kafka-esque interrogations84

April 19 2011 Amnesty International a 21-year-old monk Phuntsog set himself on fire in an

apparent anti-government protest in March 2011 Instead of putting out the flames Chinese

police beat the young monk creating huge resentment in the monastery85

At least 11 ethnic

Tibetans have been detained for protesting against the event and against government policies

They are at risk of torture and other ill-treatment86

29 May 2011 300 Tibetan monks detained in Kirti monastery by Chinese security forces87

15 September 2011 Chinese Uighurs economic fears

Amid ethnic tensions minority regards modernization plans in Xinjiang as favoring Han Chinese

migrants88

20 November 2011 Another of Chinalsquos minorities the Hui Muslims in Ningxia do not feel

stigmatized

―There is an important reason why Hui and Han Chinese get along with each other Unlike

Muslims of the other ethnic minorities like Uighur Kazakh Kyrgyz and Tajik the Hui Muslims

speak Mandarin just like the Hans89

82

httpabcnewsgocomBusinesswoman-china-forced-abortions-leaves-unable-

childrenstoryid=14880884Tsia7LIk6so 83

httpwwwbbccouknewsbusiness-14832392 84

httpwwwthedailybeastcomnewsweek20111113ai-weiwei-speaks-out-on-his-detentionhtml 85

httphradvorgaggregatorsources10 86

httpwwwamnestyorgenlibraryassetASA170212011end75f7611-be66-4d5a-9391-

c80c43501d56asa170212011enhtml 87

httphumanrightshouseorgArticles16503html 88

httpwwwaljazeeracomvideoasia20110920119158016969449html 89

httpwwwtodayszamancomnews-263322-chinas-hui-muslims-do-not-feel-stigmatizedhtml

UNHRC 24 of 44

Conclusion

The United Nations Human Rights Council at LUMUN 2012 will be looked upon to provide a

framework for the resolution of these issues in a universal context The scope of the issues

should be expanded and applied to countries other than China The committee will have to make

recommendations which have universal application and resolve all aspects of the issue

comprehensively For any queries related to the study guide please do contact either (or both)

the committee directors at the given addresses

UNHRC 25 of 44

Topic Area B Abolishing the Death Penalty

Introduction to the Topic Area

The death penalty is formally defined as the execution of an offender sentenced to death after

conviction by a court of law of a criminal offenselsquo90

The concept of a capital crime is subjective

and states have made use of this practice in response to multiple forms of crime The use of the

death penalty has produced much controversy with regard to its apparent violation of

fundamental human rights as delineated in the Universal Declaration of Human Rights and

subsequent human rights charters and treaties It is asserted that the use of death penalty is in

contravention to the peopleslsquo right to life promised to every individual under Article 3 of the

Declaration91

Moreover Article 2 of the Charter of Fundamental Rights of the European Union

lucidly bars the imposition of death penalty as a form of punishment92

Arguments against the

use of death penalty are also made on the grounds of inhumane methods which are employed to

see out the process Historically multiple methods have been used which include death by

hanging severing of the head lethal injection shooting and electrocution93

94

As a response states have made keen efforts to abolish

the death penalty particularly in the last two decades as

can be interpreted from the graph on the right which

represents the number of states that have abolished the

death penalty Countries belonging to the European

region with the exclusion of Russia and Belarus have

sought to revoke the use of the practice The death

penalty is most commonly seen to be a formal practice

in most of the developing countries The trend is

apparent in Latin America Africa and Asia

96 countries have formally abandoned the use of death penalty 58 countries allow the use95

Other states have abolished the penalty in practice but the laws remain in place for the

imposition of the penalty as a response to certain crimes The imposition of the death penalty has

90

httpwwwbritannicacomEBcheckedtopic93902capital-punishment 91

httpwwwunorgendocumentsudhr 92

httpwwweuroparleuropaeucharterpdftext_enpdf 93

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffle

re-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 94

httpwwwdeathpenaltyinfoorgmethods-execution 95

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf

Figure 1 (Drag to enlarge)

UNHRC 26 of 44

seen a decline over the recent years with a fall in the number of executions that take place

annually It would however be incorrect to assume that the practice is not prevalent or widely in

effect Amnesty International reported that at least 2024 new death sentences were imposed in 67

countries in 2010 Moreover there were at least 17833 people sentenced to death worldwide at

the end of 201096

Again these are minimum figures which are the safest that can be inferred

from the given research There were 527 known executions carried out in 2010 globally97

This

figure however does not include the number of executions that took place in China where

analysts believe that more than a thousand people were put to death in the past year

The statistics represent the number of people executed through capital punishment One way to

formally define capital punishment is to regard it as the state sanctioned killing of an individual

through a judicial process as a punishment for a crime (defined as a capital crime by the state)98

Capital punishment is the most obvious and prevalent manifestation of the death penalty It is

often perceived as a statelsquos right in order to preserve law and order against any individual who

engages in serious crimes that threaten other individuals or the state Those who advocate against

the use of capital punishment label it as a symptom of a culture of violence not a solution to

itlsquo99

The controversy surrounding the topic is based on the legal ethical and moral acceptability

of the statelsquos right to an individuallsquos life The debate entails several social and economic factors

some of which will be reviewed in closer detail in the relevant section of this guide

One of the most striking aspects related to the issue is the imposition of the capital punishment

on juveniles The sentencing of juveniles to death is in clear breach of international law The

morality and validity of such a practice is often called into question and has been put under

relentless scrutiny despite all of which the practice is still carried out in a number of countries

Historically the United States China and Iran have the worst records relating to juvenile death

sentences100

The study guide also includes a separate section for the case of juveniles in which

the legal and social aspects of the problems are detailed

As stated states have made use of the death penalty to punish crimes of varying natures The use

of the death penalty is reserved for only the most seriouslsquo crimes as put forth in international

law101

The notion of a capital crime however is a subjective one states that have doled out

death sentences have defined it differently In certain countries the death penalty is only used to

charge criminals accused of war crimes In other countries the penalty is reserved for crimes like

96

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf 97

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010 98

httpusersrcncommwooddeathpenhtml 99

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 100

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 101

httpwwwunorgdocumentsecosocdocs1995e1995-78htm

UNHRC 27 of 44

murder rape or even robbery States also use the death penalty against individuals who are guilty

of treason The issue however is that many states practicing the death penalty impose the

punishment even when the crimes do not meet the threshold for the aforementioned most

seriouslsquo crimes The ability of states to define what constitutes as a capital crime has led to states

abusing their powers as has been observed in the sentences ordained by military courts

Moreover even the radicals who make the argument of the punishment fitting the crime agree

that in many instances individuals have been executed for softlsquo crimes crimes that were

certainly not tantamount to charges of murder or crimes against humanity The issue of apparent

violations of human rights is further exacerbated in these instances The study guide will discuss

the universal crimes that have resulted in the awarding of the death penalty and examine the

issue further The committee will be expected to discuss the feasibility of drawing up an

international definition of crimes which in isolated instances perhaps may be appropriate for a

sentence like the death penalty

Another pertinent aspect surrounding the debate is that of extrajudicial killings The execution of

a person by state authorities without the authority of a judicial proceeding is termed as an

extrajudicial killing Many states have used extrajudicial killings to establish their authority and

order without having to wade through the legal process By doing so they have deprived scores

of people of their fundamental right to free and fair trials Governments have also employed this

tactic to exercise political aggression and to suppress dissent A particular point of concern is the

fact that some states have made use of these killings even when they have officially revoked the

imposition of the death penalty Extrajudicial killings are carried out persistently in many

countries ndash the list includes countries like Iran Iraq Israel Philippines102

Most recently the

killing of Anwar al-Awlaki and Samir Khan in Yemen by a sanctioned National Security Council

move by the USA was an example of states embarking on such paths to eliminate threats to

national securitylsquo103

102

Multiple citations for each country can be found in the second paragraph article titled Extrajudicial killinglsquo on

Wikipedia 103

httpwwwtelegraphcouknewsworldnewsbarackobama7564581Barack-Obama-orders-killing-of-US-cleric-

Anwar-al-Awlakihtml

UNHRC 28 of 44

Wrongful convictions lead many to believe in the inherent incapacity of the death penalty to

serve justice On September 21 2011 US citizen Troy Davis was executed in Georgia after

which seven of the nine witnesses who testified against him in the case that led to his execution

recounted or retracted their evidences A petition with nearly one million signatures was put

forth to reconsider his case it was rejected On the same day a 17 year old boy was publicly

hanged in Iran for killing a popular athlete his justification based on self-defense was ignored

Also on the same day a Pakistani national was executed in China on grounds of drug trafficking

an offence that does not often result in capital punishment The need for the resolution of this

issue is pressing and the committee needs to deal with all aspects of the problem in a

comprehensive and enduring manner104

Capital Punishment

In 2010 23 countries implemented capital punishment A total of 527 executions (plus the 1000+

carried out in China alone) were known to have taken place with Iran Yemen USA and North

Korea meting out a significant number of sentences105

The figure is lower than the records

computed for years past There are more states which are now abolitionist either in law or in

practice with regard to the imposition of the punishment Gabon was officially the last country

to rescind the practice while bills calling for an end to capital punishment have been presented

to parliaments in Lebanon Mali Mongolia and South Korea106

Renewed efforts are

104

httpwwwamnestyorgennews-and-updatesus-executes-death-row-prisoner-troy-davis-2011-09-21 105

httpwwwguardiancouknewsdatablog2011mar29death-penalty-countries-world 106

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010

UNHRC 29 of 44

simultaneously being made on the international front to implement laws against capital

punishment A third resolution establishing a moratorium on the use of death penalty passed the

UN General Assembly on December 21 2010107

Despite the increasing momentum towards an eventual elimination of the practice the number of

executions taking place annually is a cause of major concern Advocates of the death penalty

assert that the practice is an effective means of deterring crime in society Public executions are

often held in Iran Afghanistan and Palestine for example to demonstrate the fate awaiting

those who commit similar crimes108

Arguments are made on the grounds of justice that it is

proper and fair to take an eye for an eye and a life for a life and that some individuals deserve

it for the crimes they commit

Those opposing the practice question the morality of an action sanctioned by the state which

endorses deprivation of the right to life a fundamental human right under the Universal

Declaration of Human Rights109

There are inescapable flaws within legal systems which are

aggravated by discrimination prosecutorial misconduct and inadequate legal representation

Moreover the risk of executing the innocent can never be eliminated110

An alternative is

presented in the form of imprisonment for life without parole which results in a parallel debate

is imprisonment for life a viable surrogate to the practice of death penalty A thread from this

debate also relates to the economic feasibility of carrying out a death sentence as opposed to the

feasibility of imprisonment for life

Deterrence

Capital punishment is often propagated as an adequate approach in the deterrence and prevention

of crime The logic is that if murderers are sentenced to death potential murderers will think

twice before killing for fear of losing their own life The deterrence theory presumes that the

once the punishment for a certain crime is established the criminal by committing the crime

voluntarily assumes the risk of receiving the prescribed punishment for the crime Only when the

most severe punishment has been set will there be a possibility of an individual evaluating their

actions in light of the consequences111

107

httpwwwundemocracycomA-RES-62-149pdf 108

httpwwwamnestyorgennews-and-updatessharp-rise-public-executions-iran-executes-first-juvenile-

offenders-2011-2011-04-27 109

wwwunorgendocumentsudhr 110

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 111

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 30 of 44

The death penalty it is asserted ensures that convicted criminals do not offend again moreover

it is deemed to be a just penalty for atrocious crimes It is further alleged that many criminals

who are set free even after lengthy sentences regress and go on to commit heinous crimes

Therefore there should never be the possibility of a release clause112

The deterrence theory is modeled on the grounds of human psychology logic and rationale As a

professor of jurisprudence Ernest van den Haag PhD wrote ―Common sense lately bolstered

by statistics tells us that the death penalty will deter murder if anything can People fear nothing

more than death Therefore nothing will deter a criminal more than the fear of death These

statements were further validated by a US Supreme Court Justice who said on record that

Prima facie the penalty of death is likely to have a stronger effect as a deterrent to normal

human beings than any other form of punishmentlsquo113

Numerous studies have been conducted on

the subject with varying results One of the most established studies was conducted in USA

using a panel data set of over 3000 counties from 1977 to 1996 which concluded that on

average one death sentence resulted in 18 fewer murders114

Delegates will be expected to be

familiar with other similar studies

These studies are commonly refuted as not crediblelsquo by opponents of the capital punishment

who also deny the correlation between crime and death penalty as a fabricated relationship which

cannot be empirically established115116

A study of the relationship between capital punishment

and the incidence of murder was conducted for the UN in 1988 and updated in 2002 The

conclusion was ―The investigation has not provided scientific proof that executions have more

deterrent effect than life imprisonment It is unlikely that such evidence will ever come

Deterrence hypothesis finds no support in the survey117

Another counter-argument asserts that crime is still a persistent feature of the societies that

continue to award the death penalty while many of the abolitionist states enjoy low crime rates

This can be evidenced by comparing the crime rate in USA or Pakistan with that of Canada or

some European state In Canada for example the homicide rate per 100000 fell from a peak of

309 in 1975 the year before the abolition of the death penalty for murder to 241 in 1980 and

in 2003 27 years after abolition the homicide rate was 173 per 100000 44 per cent lower than

in 1975118

112

httpwwwdeathpenaltyinfoorgfacts-about-deterrence-and-death-penalty 113

httpdeathpenaltyproconorgviewresourcephpresourceID=002000 114

httpdeathpenaltyproconorgsourcefilesThe20Deterrent20Effect20of20Capital20Punishmentpdf ndash

Delegates should carefully examine certain parts of this document to establish the credibility of the assertions made

They should also invest in trying to locate studies that refute the assertions made in this and similar studies 115

httpwwwdeathpenaltyinfoorglaw-enforcement-views-deterrencelawenforcement 116

httpwwwdeathpenaltyinfoorgDonohueDeterpdf 117

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 118

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml

UNHRC 31 of 44

The lack of evidence on the production of a unique deterrent effect points to the danger of

relying on the deterrence hypothesis as a basis for public policy on the death penalty

Retribution amp Morality

An important terminology that delegates need to familiarize themselves with is that of

―retributivism119

It is defined as ―a policy of criminal justice that sponsors the punishment of

criminals in retribution for the harm they have inflicted120

Criminals deserve to be punished in

proportion to the gravity of their crime regardless of whether the victim or anyone else desires

it we may all deeply regret having to carry out the punishment but consider it warrantedlsquo is

what many say in defense of the theory121

The need for the establishment of a visibly just state arises from the potential risks of not having

one As has been visible in many developing countries with shaky legal systems when criminals

are not adequately punished for their unlawful behavior the public takes the law into its own

hands and deals out vigilante justice It is asserted that retributivism is essential for a functioning

society where individuals respect the supremacy of law

The concept of retribution in society is also grounded in religious beliefs The concept of an eye

for an eye has been a part of all three Abrahamic traditions However in the modern world it is

Islamic nations that still retain the practice based on these grounds Similar traditions can be

found in Hinduism Christianity and Buddhism as well as other religions in different parts of the

world In many non-secular countries the constitutions and state laws are derived from religious

doctrines

Opponents dismiss this aspect of the argument as being emotionally charged with little rational

logic to support the contention They claim that the establishment of capital punishment gives

birth to a culture of violence endorsed by the state It perpetuates the cycle of aggression and

brutality something which the state should be actively inhibiting not endorsing

Wrongful Convictions

The death penalty carries with it the danger of wrongfully convicting an innocent person for

crimes he did not commit There is the potential for capital punishment to evolve into sheer

miscarriage of justice as in certain circumstances states are often seen to rush the trials and

convict the accused hastily This practice takes foremost apparently in military courts often in

119

Cavadino M amp Dignan J (1997) The Penal System An Introduction (2nd ed) p 39 London Sage 120

httpdictionaryreferencecombrowseretributivism 121

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 32 of 44

the developing or lesser-developed countries where the system of law is not properly established

It is not however exclusive to these countries Examples can be drawn from countries like

Philippines Thailand Iran and Palestine to name just a few where executions are carried out at

alarming pace removing the possibility of reviews

On 15 August 2004 Atefah Rajabi Sahaaleh was hanged in a public square in the Iranian city of

Neka Her death sentence was imposed for adultery and crimes against chastity122123

Atefah

was executed a week after the trial was run Following the execution the Judge for the case was

arrested for investigation by the Intelligence Ministry The media reported that in addition to the

confession of his rape of Atefeh Judge Rezai who served as judge jury and executioner also

confessed to torturing her during interrogations to extract names of others she had relations with

No transcripts from court proceedings were recorded The State alleged that Atefah was 22 at the

time of her execution A witness later claimed The judge just looked at her body because of

the developed physique and declared her as 22124

ndash her birth certificate revealed she was born

in 1988 Furthermore Atefah did not have access to a proper defense where she could contest

charges leveled against her This is one example of many such cases of miscarriage of justice

Something that recurs in these cases is the failure of the police or prosecuting authorities to

prevent the use of unreliable witnesses the misuse of evidence or confessions and the provision

of inadequate defense representation The advent of DNA profiling and the use of it as positive

evidence in criminal cases has resulted in the exoneration of multiple death row inmates on

grounds of forensic evidence or lack thereof Since 1973 138 people have been released from

death row in the United States after it was proven that they were innocent125

In 2009 Paul

House was cleared of murder and exonerated in Tennessee USA after having served 22 years

on death row His innocence was proclaimed in light of substantial additional DNA testing and

further investigationlsquo 126

Amnesty International has noted examples of wrongful convictions from elsewhere as well

including Jamaica Japan China Nigeria and Tanzania127

Paul G Cassell a former law clerk to

the Chief Justice of USA stated the mistaken release of guilty murderers should be of far greater

concern than the speculative and heretofore nonexistent risk of the mistaken execution of an

innocent personlsquo highlighting the case made by those who advocate the death penalty even in

light of wrongful convictions128

122

httpwwwcosmolearningcomdocumentariesexecution-of-a-teenage-girl1 123

httpnewsbbccouk2hi5217424stm 124

httpnewsbbccouk2hi5217424stm 125

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 126

httparticlescnncom2009-05-13justicetennesseeexonerated_1_death-row-inmate-dna-evidence-house-

arrest_s=PMCRIME 127

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 128

httpdeathpenaltycurriculumorgstudentcaboutargumentstestimony3bhtm

UNHRC 33 of 44

Alternative to Death Penalty

All abolitionist states have reverted to the practice of sentencing criminals to life imprisonment

(some without parole) which is also termed as death by incarceration Widely regarded as a more

humane course of action life imprisonment is also alleged to be a more economical practice

While ensuring public safety by keeping criminals away from society this system also saves the

lives of innocent people who have been falsely or wrongfully convicted The setup inhibits and

curbs the cycle of violence while retaining the deterrence factor it is strongly asserted

Advocates for the death penalty are averse towards life imprisonment for a number of reasons

They cite the unreliability of the system as one of the flaws which impedes the possibility of

such a sentence being successful A certain James Moore serves as a valid example in this case

In 1962 James Moore raped and strangled 14-year-old Pamela Moss The victimlsquos parents opted

out of capital punishment for Moore and he was instead sentenced to life in prison without

parole Twenty years later a change in sentencing laws in 1982 renders James Moore eligible for

parole every two years129130

Kenneth McDuff is another example McDuff was convicted and sentenced to life imprisonment

Years later due to the issue of overcrowding in prisons McDuff was released following which

he killed eight more people McDufflsquos example is of an individual from a developed country

with an established legal system in place131

Overcrowding is a feature of prisons in developing

or lesser developed countries In many such states criminals have also been known to easily

break out from penitentiaries

The economic aspect of the debate is murky at best There is a lack of empirical data on the

subject which is why the arguments of both these sides cannot be settled beyond doubt

Advocates of capital punishment insist that the overall costs of the practice are far lesser than the

costs of housing an inmate for a lifetime132

They also suggest that the life imprisonment allows

criminals to conceive new habeas corpus petitions which on legal grounds cannot be rejected

automatically resulting in more trials

On the other hand substantial arguments are made which stress that the cost of legal proceedings

in capital cases is in truth more than that of other cases States and nations spend a significant

portion of the taxpayerlsquos money in meting out such punishments133

Delegates when addressing

this portion of the debate will need to be aware of the financial aspects of the issue as it forms

for many states an important part of whether capital punishment should be revoked or

not

129

httpwesleylowecomcphtmldeter 130

httpwwwnytimescomkeywordparole 131

httpwesleylowecomcphtmldeter 132

Ibid ndash view section titled Capital Punishment and its costslsquo 133

httpwwwamnestyusaorgour-workissuesdeath-penaltyus-death-penalty-factsdeath-penalty-cost

UNHRC 34 of 44

Imposition of Death Penalty on Juveniles

The prohibition on the death penalty for crimes committed by juvenile offendersmdashpersons under

age 18 at the time of the offensemdashis well established in international law specifically in the

Convention on the Rights of Child

ldquoNo child shall be subjected to torture or other cruel inhuman or degrading treatment or

punishment Neither capital punishment nor life imprisonment without possibility of release shall

be imposed for offences committed by persons below eighteen years of agerdquo134

- Article 37(a) Convention on the Rights of Child

ldquoSentence of death shall not be imposed for crimes committed by persons below eighteen years

of age and shall not be carried out on pregnant womenrdquo135

- Article 6(5) International Covenant on Civil and Political Rights

The treaties are a unanimously agreed set of non-negotiable standards and obligations By

acceding to the treaties and ratifying them governments commit to protecting and ensuring

childrens rights and to holding themselves accountable for this commitment before the

international community

Even though the practice of capital punishment on juveniles is relatively rare however in clear

contravention of international law nine countries have executed offenders who were juveniles at

the time of their crimes between 1990 and 2005136

These countries include the Peoples Republic

of China (PRC) the Democratic Republic of the Congo Iran Nigeria Pakistan Saudi Arabia

Sudan the United States and Yemen137

The USA has since moved to implement a ban on capital

punishment for juveniles However in most other countries of the preceding list the practice is

still enshrined in the judicial system Iranlsquos record in particular has been abominable over the last

decade It has carried out 39 executions of persons under the age of 18 since 2005 Presently

over a hundred individuals are placed on death row for crimes committed as juveniles The

executions of Mahmoud Asgari Ayaz Marhoni and Makwan Moloudzadeh became international

symbols of Irans child capital punishment and the judicial system that hands down such

134

httpwww2ohchrorgenglishlawcrchtm 135

httpwww2ohchrorgenglishlawccprhtm 136

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf - This document by the Human Rights Watch

called The Last Holdoutslsquo is a good summary of juvenile executions and should be reviewed 137

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 - Contains a list with

statistics and details of countries which have allowed the imposition of death sentence to juveniles

UNHRC 35 of 44

sentences138139140

Saudi Arabia and China too have questionable records that need to be

scrutinized further

While regional treaties and charters usually substantiate international law the Arab Human

Rights Charter of 2004 is unique among regional and international treaties in that the ban on the

juvenile death penalty in it is not absolute but merely optional141

Furthermore national laws in states that observe such a practice are in violation of

international legally-binding charters In Iran and Saudi Arabia laws usually treat a child the

same way as an adult criminal offender would be treated Article 10(3) of the International

Covenant on Civil and Political Rights emphasizes the need for demarcation between the

handling of children and that of adults in stating ―Juvenile offenders shall be segregated from

adults and be accorded treatment appropriate to their age and legal status142

The definition of a child in these Muslim states is unclear as adulthood is associated with

attainment of puberty which is a relative concept The Committee on the Rights of the Child in

January 2005 censured the Saudi government for its practice of imposing the death penalty on

juveniles terming it a serious violation of the fundamental rights The committee was deeply

alarmed over the discretionary power judges hold to treat juveniles as adults as was stated in

the committeelsquos report Iran too was strongly condemned following the release of an

international report highlighting the dire situation in Iran by the International for Human Rights 143

138

httpwwwfoxnewscomstory0293329798200html 139

httpnewsbbccouk2himiddle_east7130380stm 140

httpenwikipediaorgwikiCapital_punishmentIran 141

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 142

httpwww2ohchrorgenglishlawccprhtm 143

httpwwwfidhorgIMGpdfRapport_Iran_finalpdf

UNHRC 36 of 44

On August 19 2008 Iranian authorities executed Seyyed Reza Hejazi at Isfahan Central Prison

for his role in a murder committed in 2003 when he was 15 Hejazi was tried as an adult by

Branch 106 of the Isfahan General Court even if he did not qualify as one under international

stipulations and sentenced to death on November 14 2005144

In Saudi Arabia Mu`id bin

Husayn bin Abu al-Qasim bin `Ali Hakami was executed on July 10 2007 for a murder he

allegedly committed three years earlier when he was 13 years old145

The judges in these states

because of the implementation of the Sharialsquo law have a large amount of discretion with regard

to their rulings This discretion is often abused in the interrogation and judicial proceedings In

Pakistan authorities hanged Mutaber Khan in Peshawar Central Prison on June 13 2006 on

charges of murder of five people The fact that he was held in the juvenile wing of Peshawar

Central prison and the evidence presented by the accused confirming that his age was below 18

at the time of the killings were not taken into account during the trials and Mutaber was charged

as an adult in the case146

While the above does not cover exhaustively the practice of capitally punishing juveniles the

committee is expected to be well read on the matter The committee will be required to devise

ways to strictly apply the existing international law on the subject to curtail further deaths of

juveniles by states A series of recommendations on better implementation of international

covenants will be expected from the committee Delegates at UNHRC will also have to

familiarize themselves with the stipulations in the national laws of countries practicing juvenile

death penalties (Iran Saudi Arabia Pakistan Nigeria Sudan Yemen and UAE among others) to

discuss how these states are constitutionally able to bend international law and mete out the

illegal punishments

144

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 145

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 146

See FIDH and Human Rights Commission of Pakistan ―Slow march to the gallows and ―Condemned Prisoner

Executed Dawn Newspaper Karachi June 14 2005 httpwwwdawncom20060614nat16htm

UNHRC 37 of 44

Universality of Laws Incurring the Death Penalty

In countries which have not abolished the death penalty capital punishment may be imposed

only for the most serious crimes it being understood that their scope should not go beyond

intentional crimes with lethal or other extremely grave consequences

- Safeguards guaranteeing protection of the rights of those facing the death penalty147

Laws incurring the death penalty or capital crimes have certain uniformity the world over This

is of course barring states that are religiously affiliated and whose law systems are not secular

in nature The list of capital crimes for those states with non-secular legal systems is slightly

different The Human Rights Commission had decided that the imposition in the State party of

the death penalty for offences which cannot be characterized as the most serious including

apostasy committing a third homosexual act illicit sex embezzlement by officials and theft by

force are incompatible with Article 6 of the Covenant Economic offences including

embezzlement drug related offences political offences and robbery were also referred to148

The reason why looking into capital crimes and trying to garner a global impression of them is

important is that the death penalty can only realistically be abolished in a piecemeal way This

process will entail shortening the list of capital crimes The UN formally notes that ―in order

fully to guarantee the right to life provided for in article 3 of the Universal Declaration of

Human Rights the main objective to be pursued is that of progressively restricting the number of

offences for which capital punishment may be imposed with a view to the desirability of

abolishing this punishment in all countries149

The first established death penalty laws date as far back as the Eighteenth Century BC in the

Code of King Hammaurabi of Babylon which codified the death penalty for 25 different crimes

By the 1700s 222 crimes were punishable by death in Britain including stealing cutting down a

tree and robbing a rabbit warren In the 19th

century the death penalty was eliminated for over

100 of the 222 crimes punishable by death 150

In modern times the UN Special Rapporteur on

extrajudicial summary or arbitrary executions has stated that the death penalty should be

eliminated for economic crimes and drug-related offences and that the restrictions to its use

―exclude the possibility of death sentences for so-called victimless offences ndash including acts of

treason espionage and other vaguely defined acts usually described as crimes against the Statelsquo

or disloyaltylsquo and ―actions primarily related to prevailing moral values such as adultery and

prostitution as well as matters of sexual orientation151

147

httpwww2ohchrorgenglishlawpdfprotectionpdf 148

httpwwwunhchrchtbsdocnsf0bc310a747155dff88025655300537faeOpendocument 149

General Assembly resolution 2857 httpwwwunodcorgpdfcompendiumcompendium_2006_part_01_05pdf 150

httpdeathpenaltycurriculumorgstudentcabouthistoryhistoryPDF 151

httpswwwabofimedia24259report10pdf

UNHRC 38 of 44

Contrary to the made recommendations even political dissent warrants a death sentence in

several countries most notably in China and Iran In 2010 nearly 20 Kurdish people were

executed for political offences in Iran The country is known for keeping dissent especially from

the Kurds suppressed Most are executed on the grounds of moharebeh or enmity against God

Moreover challenging the power of the Ayatollah is also punishable by death These charges are

neither explicit nor in line with international guidelines over what crimes are punishable

capitally In Iran judges must handle such cases carefully as Iranian law provides for only one

punishment if an individual is found to be guilty of treason Libya too thwarts political dissent

with firm laws in place for punishing by death those who illegally form groups organizations or

associations against the state152

Saudi Arabia too is worth note for its vaguely phrased laws governing capital punishment

Intentional murder and crimes that spread ―mischief in the land (Fasad fil-ardh) merit death In

2010 the government announced that it had executed 26 people all by beheading Crimes that

―spread mischief include witchcraft and sorcery153

How is one convicted of witchcraft in the

21st century What can the international community do when regarding countries such as these

Treason arguably along with murder is the capital crime that has yet to be phased out by many

countries In some such as Brazil treason during warfare is the only crime for which a person

can be sentenced to death In the Gaza Strip under Hamas any sort of cooperation with Israeli

forces during military actions is also punishable by death In others including Algeria Bahrain

Iran and Malaysia treason is punishable by death in all circumstances The United States too has

federal laws governing treason under which traitors ―shall suffer death154

Child sex abuse is another crime that is widely held to merit the death penalty In Russia for

example according to the Russian Public Opinion Research Center an overwhelming majority

consider the death penalty to be an acceptable punishment especially in relation to molestation

155 In 2009 however Russias Constitutional Court effectively abolished the death penalty by

extending indefinitely a 13-year-old moratorium on capital punishment156

Indonesia has some of the strictest penalties for drug related crimes in the world Roughly half of

those on death row are incriminated with drug-related charges157

In 2008 though the most high

profile executions were of terrorists Three of those found responsible for the 2002 Bali

bombings were executed by shooting158

Generally speaking however a significant proportion of

152

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 153

httpwwwstategovgdrlrlshrrpt2010nea154472htm 154

httpdeathpenaltyproconorgviewresourcephpresourceID=1172 155

httpenrianrutrenddeath_penalty 156

httpwwwreuterscomarticle20091119idUSLJ330478 157

httpwwwnytimescom20080711worldasia11iht-indo114421132html 158

httpnewsbbccouk2hiasia-pacific7718246stm

UNHRC 39 of 44

the executions or death sentences recorded (in 2010) in China Egypt Indonesia Iran Laos

Libya Thailand United Arab Emirates and Yemen were for drug-related offences In December

2010 the amended Anti-Narcotics law came into force in Iran extending the scope of the death

penalty to include additional categories of illegal drugs (for example crystal meth) possession

of which became punishable by death Also around the same time the National Assembly of

Gambia voted to extend the scope of the death penalty by making the possession of more than

250g of heroin or cocaine an offence punishable by death159

Several states allow for the death penalty for crimes of blasphemy and other crimes for

nonviolent expression and association In Pakistan Aasia Bibi a Christian mother of five was

charged with blasphemy and sentenced to death after a trial largely believed to be unfair on 8

November 2010 She is currently on death row The country is also noted for its laws concerning

capital crimes The list includes 27 crimes most of which go beyond the notion of ―most serious

crimes as recommended by the International Covenant on Civil and Political Rights Extra-

marital sex and blasphemy are examples of some capital crimes in the country In December

2007 Pakistan voted against a United Nation General Assembly resolution for a moratorium on

the death penalty The year before however the nation amended its law on rape and adultery

charges which are no longer punishable by death160

As far back as 1989 recommendations have been made as to how to abolish the death penalty

Member states (of the UN) have been urged ―to publish for each category of offence for which

the death penalty is authorized and if possible on an annual basis information about the use of

the death penalty including the number of persons sentenced to death the number of executions

actually carried out the number of persons under sentence of death the number of death

sentences reversed or commuted on appeal and the number of instances in which clemency has

been granted and to include information on the extent to which the safeguards referred to above

are incorporated in national law161

The committee must inspect how far this recommendation

has been adopted and should seek to rectify the weaknesses in the system of gradually

abolishing the death penalty Can a target year be designated by which crimes meriting the death

penalty could be made universal How can countries with non-secular legal systems be brought

into the fold of international law

159

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 160

httpwwwfiacatorgenIMGpdfdppakistan-enpdf 161

httpgraduateinstitutechfacultyclaphamhrdocdocsecosocresolutiondeathpen1989html

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 25: UNHRCFINAL

UNHRC 21 of 44

endeavored to sever ties between mosques and groups involved in allegedly ―separatist

activities Around 8000 imams were required to undergo ―political reeducation in this regard

and become ―patriotic religious personalities Ethnic minorities are educated in ways that do not

allow them to learn their own languages or practice their own religion In 2001 for example a

Muslim girl was expelled from school for praying 79

Moreover in an attempt to further its socialist agenda and bind ethnic minorities together

minority cultural activities are often hindered In its place nationalistic values are given a

premium and integrated into society so as to tie the entire country in a unified Chinese foldlsquo

Resultantly an asymmetry with regards to the provision of services and protection of cultural

identity can be found in almost every ethnic minority region in the country The repression

against minorities has wider implications on the human rights situation for all This leads to

creation of a vindictive attitude among the minorities not only against the government but also

the Han majority

In July 2009 this attitude manifested itself in

the form of severe riots between the Han and

Uighur communities in Xinjianglsquos capital city

Urumqi Ethnic tensions elevated to the point

that police involvement was made necessary

According to Chinese state media at least 150

people were killed and more than 800 were

injured The riots were reportedly sparked by a

Uighur protest over the ethnically motivated

killing of two Uighur workers in the southern

province of Guangdong

On the topic of allegations of separatism it is interesting to note that post 911 it has been noted

that the Chinese government has used concerns about terrorism as a method for suppressing

ethnic activity This is possible through the characterization of certain ethnicities as having

fundamental leanings The Muslim Uighurs fell under fire for this very reason after the

September 2001 attacks

One of the ways that the Chinese government with its Han leanings has asserted its presence in

the region is through the smokescreen of the XPCC The Peoplelsquos Liberation Army and the

XPCC are present in the region per the government to ―consolidate border defense accelerate

79

wwwminorityrightsorgdownloadphpid=29 Page 30

UNHRC 22 of 44

Xinjianglsquos development and reduce the economic burden on local governments and the local

people of all ethnic groups80

The heavy militarization of ethnic minority

regions also enables the Chinese government

to quickly respond to skirmishes between the

minorities and the Han For example clashes

between the Uighurs and the Han in the

XUAR are quickly clamped down upon The

response by Chinese authorities always

focuses on the minority groups in the region

The typical response includes a period of

strike hardlsquo security measures during which the minorities are subjected to police patrols of

crowded areas identity checks street searches increased criminal investigations and accelerated

trials The measures also include mandatory political indoctrination classes for the Uighur

population Swift Chinese response to ethnic dissidence precludes the possibility of trying

protestersrioters under due process This phenomenon also contributes to the controversy of

China and its policy of arbitrary imprisonment

Essential to any countrylsquos social progress is the protection and provision of the basic rights to all

its citizens For a country like China which has a significant standing in the international

community the degree to which human rights are upheld comes under added scrutiny Minorities

need to be guaranteed provision of not only fundamental rights but additional ones that grant

them equal opportunities

Recent Developments

3 November 2010 UN Secretary General pushes China on human rights

Ban Ki-moon the United Nations secretary general has called on China to respect human rights

after critics accused him of dodging the issue on a trip to Beijing The UN secretary general met

Hu Jintao the Chinese president but failed to challenge Mr Hu on the imprisonment of Liu

Xiaobo the democracy activist who was awarded this years Nobel Peace prize and raise the

issue of human rights81

80

httpwwwchinaorgcne-white200305269htm 81

httpwwwtelegraphcouknewsworldnewsasiachina8107148UN-Secretary-General-pushes-China-on-human-

rightshtml

UNHRC 23 of 44

5 November 2011 Yeqing Ji from Shanghai China will most likely not be able to have children

after she said two forced abortions physically impaired her uterus82

8 September 2011 The Chinese government has renewed Googlelsquos license to allow it to

continue operating its local website in the country83

13 November 2011 Seven months ago

Chinese police detained the countrylsquos most prominent artist Ai Weiwei at the airport and drove

him to a hidden location It was the beginning of what is to be a two-and-a-half month nightmare

for the architect and sculptor who is also a former darling of the Communist Party who later

turned into an outspoken government critic Ai was held on vague charges of economic crimes

was kept in isolation and subjected to Kafka-esque interrogations84

April 19 2011 Amnesty International a 21-year-old monk Phuntsog set himself on fire in an

apparent anti-government protest in March 2011 Instead of putting out the flames Chinese

police beat the young monk creating huge resentment in the monastery85

At least 11 ethnic

Tibetans have been detained for protesting against the event and against government policies

They are at risk of torture and other ill-treatment86

29 May 2011 300 Tibetan monks detained in Kirti monastery by Chinese security forces87

15 September 2011 Chinese Uighurs economic fears

Amid ethnic tensions minority regards modernization plans in Xinjiang as favoring Han Chinese

migrants88

20 November 2011 Another of Chinalsquos minorities the Hui Muslims in Ningxia do not feel

stigmatized

―There is an important reason why Hui and Han Chinese get along with each other Unlike

Muslims of the other ethnic minorities like Uighur Kazakh Kyrgyz and Tajik the Hui Muslims

speak Mandarin just like the Hans89

82

httpabcnewsgocomBusinesswoman-china-forced-abortions-leaves-unable-

childrenstoryid=14880884Tsia7LIk6so 83

httpwwwbbccouknewsbusiness-14832392 84

httpwwwthedailybeastcomnewsweek20111113ai-weiwei-speaks-out-on-his-detentionhtml 85

httphradvorgaggregatorsources10 86

httpwwwamnestyorgenlibraryassetASA170212011end75f7611-be66-4d5a-9391-

c80c43501d56asa170212011enhtml 87

httphumanrightshouseorgArticles16503html 88

httpwwwaljazeeracomvideoasia20110920119158016969449html 89

httpwwwtodayszamancomnews-263322-chinas-hui-muslims-do-not-feel-stigmatizedhtml

UNHRC 24 of 44

Conclusion

The United Nations Human Rights Council at LUMUN 2012 will be looked upon to provide a

framework for the resolution of these issues in a universal context The scope of the issues

should be expanded and applied to countries other than China The committee will have to make

recommendations which have universal application and resolve all aspects of the issue

comprehensively For any queries related to the study guide please do contact either (or both)

the committee directors at the given addresses

UNHRC 25 of 44

Topic Area B Abolishing the Death Penalty

Introduction to the Topic Area

The death penalty is formally defined as the execution of an offender sentenced to death after

conviction by a court of law of a criminal offenselsquo90

The concept of a capital crime is subjective

and states have made use of this practice in response to multiple forms of crime The use of the

death penalty has produced much controversy with regard to its apparent violation of

fundamental human rights as delineated in the Universal Declaration of Human Rights and

subsequent human rights charters and treaties It is asserted that the use of death penalty is in

contravention to the peopleslsquo right to life promised to every individual under Article 3 of the

Declaration91

Moreover Article 2 of the Charter of Fundamental Rights of the European Union

lucidly bars the imposition of death penalty as a form of punishment92

Arguments against the

use of death penalty are also made on the grounds of inhumane methods which are employed to

see out the process Historically multiple methods have been used which include death by

hanging severing of the head lethal injection shooting and electrocution93

94

As a response states have made keen efforts to abolish

the death penalty particularly in the last two decades as

can be interpreted from the graph on the right which

represents the number of states that have abolished the

death penalty Countries belonging to the European

region with the exclusion of Russia and Belarus have

sought to revoke the use of the practice The death

penalty is most commonly seen to be a formal practice

in most of the developing countries The trend is

apparent in Latin America Africa and Asia

96 countries have formally abandoned the use of death penalty 58 countries allow the use95

Other states have abolished the penalty in practice but the laws remain in place for the

imposition of the penalty as a response to certain crimes The imposition of the death penalty has

90

httpwwwbritannicacomEBcheckedtopic93902capital-punishment 91

httpwwwunorgendocumentsudhr 92

httpwwweuroparleuropaeucharterpdftext_enpdf 93

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffle

re-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 94

httpwwwdeathpenaltyinfoorgmethods-execution 95

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf

Figure 1 (Drag to enlarge)

UNHRC 26 of 44

seen a decline over the recent years with a fall in the number of executions that take place

annually It would however be incorrect to assume that the practice is not prevalent or widely in

effect Amnesty International reported that at least 2024 new death sentences were imposed in 67

countries in 2010 Moreover there were at least 17833 people sentenced to death worldwide at

the end of 201096

Again these are minimum figures which are the safest that can be inferred

from the given research There were 527 known executions carried out in 2010 globally97

This

figure however does not include the number of executions that took place in China where

analysts believe that more than a thousand people were put to death in the past year

The statistics represent the number of people executed through capital punishment One way to

formally define capital punishment is to regard it as the state sanctioned killing of an individual

through a judicial process as a punishment for a crime (defined as a capital crime by the state)98

Capital punishment is the most obvious and prevalent manifestation of the death penalty It is

often perceived as a statelsquos right in order to preserve law and order against any individual who

engages in serious crimes that threaten other individuals or the state Those who advocate against

the use of capital punishment label it as a symptom of a culture of violence not a solution to

itlsquo99

The controversy surrounding the topic is based on the legal ethical and moral acceptability

of the statelsquos right to an individuallsquos life The debate entails several social and economic factors

some of which will be reviewed in closer detail in the relevant section of this guide

One of the most striking aspects related to the issue is the imposition of the capital punishment

on juveniles The sentencing of juveniles to death is in clear breach of international law The

morality and validity of such a practice is often called into question and has been put under

relentless scrutiny despite all of which the practice is still carried out in a number of countries

Historically the United States China and Iran have the worst records relating to juvenile death

sentences100

The study guide also includes a separate section for the case of juveniles in which

the legal and social aspects of the problems are detailed

As stated states have made use of the death penalty to punish crimes of varying natures The use

of the death penalty is reserved for only the most seriouslsquo crimes as put forth in international

law101

The notion of a capital crime however is a subjective one states that have doled out

death sentences have defined it differently In certain countries the death penalty is only used to

charge criminals accused of war crimes In other countries the penalty is reserved for crimes like

96

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf 97

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010 98

httpusersrcncommwooddeathpenhtml 99

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 100

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 101

httpwwwunorgdocumentsecosocdocs1995e1995-78htm

UNHRC 27 of 44

murder rape or even robbery States also use the death penalty against individuals who are guilty

of treason The issue however is that many states practicing the death penalty impose the

punishment even when the crimes do not meet the threshold for the aforementioned most

seriouslsquo crimes The ability of states to define what constitutes as a capital crime has led to states

abusing their powers as has been observed in the sentences ordained by military courts

Moreover even the radicals who make the argument of the punishment fitting the crime agree

that in many instances individuals have been executed for softlsquo crimes crimes that were

certainly not tantamount to charges of murder or crimes against humanity The issue of apparent

violations of human rights is further exacerbated in these instances The study guide will discuss

the universal crimes that have resulted in the awarding of the death penalty and examine the

issue further The committee will be expected to discuss the feasibility of drawing up an

international definition of crimes which in isolated instances perhaps may be appropriate for a

sentence like the death penalty

Another pertinent aspect surrounding the debate is that of extrajudicial killings The execution of

a person by state authorities without the authority of a judicial proceeding is termed as an

extrajudicial killing Many states have used extrajudicial killings to establish their authority and

order without having to wade through the legal process By doing so they have deprived scores

of people of their fundamental right to free and fair trials Governments have also employed this

tactic to exercise political aggression and to suppress dissent A particular point of concern is the

fact that some states have made use of these killings even when they have officially revoked the

imposition of the death penalty Extrajudicial killings are carried out persistently in many

countries ndash the list includes countries like Iran Iraq Israel Philippines102

Most recently the

killing of Anwar al-Awlaki and Samir Khan in Yemen by a sanctioned National Security Council

move by the USA was an example of states embarking on such paths to eliminate threats to

national securitylsquo103

102

Multiple citations for each country can be found in the second paragraph article titled Extrajudicial killinglsquo on

Wikipedia 103

httpwwwtelegraphcouknewsworldnewsbarackobama7564581Barack-Obama-orders-killing-of-US-cleric-

Anwar-al-Awlakihtml

UNHRC 28 of 44

Wrongful convictions lead many to believe in the inherent incapacity of the death penalty to

serve justice On September 21 2011 US citizen Troy Davis was executed in Georgia after

which seven of the nine witnesses who testified against him in the case that led to his execution

recounted or retracted their evidences A petition with nearly one million signatures was put

forth to reconsider his case it was rejected On the same day a 17 year old boy was publicly

hanged in Iran for killing a popular athlete his justification based on self-defense was ignored

Also on the same day a Pakistani national was executed in China on grounds of drug trafficking

an offence that does not often result in capital punishment The need for the resolution of this

issue is pressing and the committee needs to deal with all aspects of the problem in a

comprehensive and enduring manner104

Capital Punishment

In 2010 23 countries implemented capital punishment A total of 527 executions (plus the 1000+

carried out in China alone) were known to have taken place with Iran Yemen USA and North

Korea meting out a significant number of sentences105

The figure is lower than the records

computed for years past There are more states which are now abolitionist either in law or in

practice with regard to the imposition of the punishment Gabon was officially the last country

to rescind the practice while bills calling for an end to capital punishment have been presented

to parliaments in Lebanon Mali Mongolia and South Korea106

Renewed efforts are

104

httpwwwamnestyorgennews-and-updatesus-executes-death-row-prisoner-troy-davis-2011-09-21 105

httpwwwguardiancouknewsdatablog2011mar29death-penalty-countries-world 106

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010

UNHRC 29 of 44

simultaneously being made on the international front to implement laws against capital

punishment A third resolution establishing a moratorium on the use of death penalty passed the

UN General Assembly on December 21 2010107

Despite the increasing momentum towards an eventual elimination of the practice the number of

executions taking place annually is a cause of major concern Advocates of the death penalty

assert that the practice is an effective means of deterring crime in society Public executions are

often held in Iran Afghanistan and Palestine for example to demonstrate the fate awaiting

those who commit similar crimes108

Arguments are made on the grounds of justice that it is

proper and fair to take an eye for an eye and a life for a life and that some individuals deserve

it for the crimes they commit

Those opposing the practice question the morality of an action sanctioned by the state which

endorses deprivation of the right to life a fundamental human right under the Universal

Declaration of Human Rights109

There are inescapable flaws within legal systems which are

aggravated by discrimination prosecutorial misconduct and inadequate legal representation

Moreover the risk of executing the innocent can never be eliminated110

An alternative is

presented in the form of imprisonment for life without parole which results in a parallel debate

is imprisonment for life a viable surrogate to the practice of death penalty A thread from this

debate also relates to the economic feasibility of carrying out a death sentence as opposed to the

feasibility of imprisonment for life

Deterrence

Capital punishment is often propagated as an adequate approach in the deterrence and prevention

of crime The logic is that if murderers are sentenced to death potential murderers will think

twice before killing for fear of losing their own life The deterrence theory presumes that the

once the punishment for a certain crime is established the criminal by committing the crime

voluntarily assumes the risk of receiving the prescribed punishment for the crime Only when the

most severe punishment has been set will there be a possibility of an individual evaluating their

actions in light of the consequences111

107

httpwwwundemocracycomA-RES-62-149pdf 108

httpwwwamnestyorgennews-and-updatessharp-rise-public-executions-iran-executes-first-juvenile-

offenders-2011-2011-04-27 109

wwwunorgendocumentsudhr 110

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 111

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 30 of 44

The death penalty it is asserted ensures that convicted criminals do not offend again moreover

it is deemed to be a just penalty for atrocious crimes It is further alleged that many criminals

who are set free even after lengthy sentences regress and go on to commit heinous crimes

Therefore there should never be the possibility of a release clause112

The deterrence theory is modeled on the grounds of human psychology logic and rationale As a

professor of jurisprudence Ernest van den Haag PhD wrote ―Common sense lately bolstered

by statistics tells us that the death penalty will deter murder if anything can People fear nothing

more than death Therefore nothing will deter a criminal more than the fear of death These

statements were further validated by a US Supreme Court Justice who said on record that

Prima facie the penalty of death is likely to have a stronger effect as a deterrent to normal

human beings than any other form of punishmentlsquo113

Numerous studies have been conducted on

the subject with varying results One of the most established studies was conducted in USA

using a panel data set of over 3000 counties from 1977 to 1996 which concluded that on

average one death sentence resulted in 18 fewer murders114

Delegates will be expected to be

familiar with other similar studies

These studies are commonly refuted as not crediblelsquo by opponents of the capital punishment

who also deny the correlation between crime and death penalty as a fabricated relationship which

cannot be empirically established115116

A study of the relationship between capital punishment

and the incidence of murder was conducted for the UN in 1988 and updated in 2002 The

conclusion was ―The investigation has not provided scientific proof that executions have more

deterrent effect than life imprisonment It is unlikely that such evidence will ever come

Deterrence hypothesis finds no support in the survey117

Another counter-argument asserts that crime is still a persistent feature of the societies that

continue to award the death penalty while many of the abolitionist states enjoy low crime rates

This can be evidenced by comparing the crime rate in USA or Pakistan with that of Canada or

some European state In Canada for example the homicide rate per 100000 fell from a peak of

309 in 1975 the year before the abolition of the death penalty for murder to 241 in 1980 and

in 2003 27 years after abolition the homicide rate was 173 per 100000 44 per cent lower than

in 1975118

112

httpwwwdeathpenaltyinfoorgfacts-about-deterrence-and-death-penalty 113

httpdeathpenaltyproconorgviewresourcephpresourceID=002000 114

httpdeathpenaltyproconorgsourcefilesThe20Deterrent20Effect20of20Capital20Punishmentpdf ndash

Delegates should carefully examine certain parts of this document to establish the credibility of the assertions made

They should also invest in trying to locate studies that refute the assertions made in this and similar studies 115

httpwwwdeathpenaltyinfoorglaw-enforcement-views-deterrencelawenforcement 116

httpwwwdeathpenaltyinfoorgDonohueDeterpdf 117

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 118

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml

UNHRC 31 of 44

The lack of evidence on the production of a unique deterrent effect points to the danger of

relying on the deterrence hypothesis as a basis for public policy on the death penalty

Retribution amp Morality

An important terminology that delegates need to familiarize themselves with is that of

―retributivism119

It is defined as ―a policy of criminal justice that sponsors the punishment of

criminals in retribution for the harm they have inflicted120

Criminals deserve to be punished in

proportion to the gravity of their crime regardless of whether the victim or anyone else desires

it we may all deeply regret having to carry out the punishment but consider it warrantedlsquo is

what many say in defense of the theory121

The need for the establishment of a visibly just state arises from the potential risks of not having

one As has been visible in many developing countries with shaky legal systems when criminals

are not adequately punished for their unlawful behavior the public takes the law into its own

hands and deals out vigilante justice It is asserted that retributivism is essential for a functioning

society where individuals respect the supremacy of law

The concept of retribution in society is also grounded in religious beliefs The concept of an eye

for an eye has been a part of all three Abrahamic traditions However in the modern world it is

Islamic nations that still retain the practice based on these grounds Similar traditions can be

found in Hinduism Christianity and Buddhism as well as other religions in different parts of the

world In many non-secular countries the constitutions and state laws are derived from religious

doctrines

Opponents dismiss this aspect of the argument as being emotionally charged with little rational

logic to support the contention They claim that the establishment of capital punishment gives

birth to a culture of violence endorsed by the state It perpetuates the cycle of aggression and

brutality something which the state should be actively inhibiting not endorsing

Wrongful Convictions

The death penalty carries with it the danger of wrongfully convicting an innocent person for

crimes he did not commit There is the potential for capital punishment to evolve into sheer

miscarriage of justice as in certain circumstances states are often seen to rush the trials and

convict the accused hastily This practice takes foremost apparently in military courts often in

119

Cavadino M amp Dignan J (1997) The Penal System An Introduction (2nd ed) p 39 London Sage 120

httpdictionaryreferencecombrowseretributivism 121

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 32 of 44

the developing or lesser-developed countries where the system of law is not properly established

It is not however exclusive to these countries Examples can be drawn from countries like

Philippines Thailand Iran and Palestine to name just a few where executions are carried out at

alarming pace removing the possibility of reviews

On 15 August 2004 Atefah Rajabi Sahaaleh was hanged in a public square in the Iranian city of

Neka Her death sentence was imposed for adultery and crimes against chastity122123

Atefah

was executed a week after the trial was run Following the execution the Judge for the case was

arrested for investigation by the Intelligence Ministry The media reported that in addition to the

confession of his rape of Atefeh Judge Rezai who served as judge jury and executioner also

confessed to torturing her during interrogations to extract names of others she had relations with

No transcripts from court proceedings were recorded The State alleged that Atefah was 22 at the

time of her execution A witness later claimed The judge just looked at her body because of

the developed physique and declared her as 22124

ndash her birth certificate revealed she was born

in 1988 Furthermore Atefah did not have access to a proper defense where she could contest

charges leveled against her This is one example of many such cases of miscarriage of justice

Something that recurs in these cases is the failure of the police or prosecuting authorities to

prevent the use of unreliable witnesses the misuse of evidence or confessions and the provision

of inadequate defense representation The advent of DNA profiling and the use of it as positive

evidence in criminal cases has resulted in the exoneration of multiple death row inmates on

grounds of forensic evidence or lack thereof Since 1973 138 people have been released from

death row in the United States after it was proven that they were innocent125

In 2009 Paul

House was cleared of murder and exonerated in Tennessee USA after having served 22 years

on death row His innocence was proclaimed in light of substantial additional DNA testing and

further investigationlsquo 126

Amnesty International has noted examples of wrongful convictions from elsewhere as well

including Jamaica Japan China Nigeria and Tanzania127

Paul G Cassell a former law clerk to

the Chief Justice of USA stated the mistaken release of guilty murderers should be of far greater

concern than the speculative and heretofore nonexistent risk of the mistaken execution of an

innocent personlsquo highlighting the case made by those who advocate the death penalty even in

light of wrongful convictions128

122

httpwwwcosmolearningcomdocumentariesexecution-of-a-teenage-girl1 123

httpnewsbbccouk2hi5217424stm 124

httpnewsbbccouk2hi5217424stm 125

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 126

httparticlescnncom2009-05-13justicetennesseeexonerated_1_death-row-inmate-dna-evidence-house-

arrest_s=PMCRIME 127

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 128

httpdeathpenaltycurriculumorgstudentcaboutargumentstestimony3bhtm

UNHRC 33 of 44

Alternative to Death Penalty

All abolitionist states have reverted to the practice of sentencing criminals to life imprisonment

(some without parole) which is also termed as death by incarceration Widely regarded as a more

humane course of action life imprisonment is also alleged to be a more economical practice

While ensuring public safety by keeping criminals away from society this system also saves the

lives of innocent people who have been falsely or wrongfully convicted The setup inhibits and

curbs the cycle of violence while retaining the deterrence factor it is strongly asserted

Advocates for the death penalty are averse towards life imprisonment for a number of reasons

They cite the unreliability of the system as one of the flaws which impedes the possibility of

such a sentence being successful A certain James Moore serves as a valid example in this case

In 1962 James Moore raped and strangled 14-year-old Pamela Moss The victimlsquos parents opted

out of capital punishment for Moore and he was instead sentenced to life in prison without

parole Twenty years later a change in sentencing laws in 1982 renders James Moore eligible for

parole every two years129130

Kenneth McDuff is another example McDuff was convicted and sentenced to life imprisonment

Years later due to the issue of overcrowding in prisons McDuff was released following which

he killed eight more people McDufflsquos example is of an individual from a developed country

with an established legal system in place131

Overcrowding is a feature of prisons in developing

or lesser developed countries In many such states criminals have also been known to easily

break out from penitentiaries

The economic aspect of the debate is murky at best There is a lack of empirical data on the

subject which is why the arguments of both these sides cannot be settled beyond doubt

Advocates of capital punishment insist that the overall costs of the practice are far lesser than the

costs of housing an inmate for a lifetime132

They also suggest that the life imprisonment allows

criminals to conceive new habeas corpus petitions which on legal grounds cannot be rejected

automatically resulting in more trials

On the other hand substantial arguments are made which stress that the cost of legal proceedings

in capital cases is in truth more than that of other cases States and nations spend a significant

portion of the taxpayerlsquos money in meting out such punishments133

Delegates when addressing

this portion of the debate will need to be aware of the financial aspects of the issue as it forms

for many states an important part of whether capital punishment should be revoked or

not

129

httpwesleylowecomcphtmldeter 130

httpwwwnytimescomkeywordparole 131

httpwesleylowecomcphtmldeter 132

Ibid ndash view section titled Capital Punishment and its costslsquo 133

httpwwwamnestyusaorgour-workissuesdeath-penaltyus-death-penalty-factsdeath-penalty-cost

UNHRC 34 of 44

Imposition of Death Penalty on Juveniles

The prohibition on the death penalty for crimes committed by juvenile offendersmdashpersons under

age 18 at the time of the offensemdashis well established in international law specifically in the

Convention on the Rights of Child

ldquoNo child shall be subjected to torture or other cruel inhuman or degrading treatment or

punishment Neither capital punishment nor life imprisonment without possibility of release shall

be imposed for offences committed by persons below eighteen years of agerdquo134

- Article 37(a) Convention on the Rights of Child

ldquoSentence of death shall not be imposed for crimes committed by persons below eighteen years

of age and shall not be carried out on pregnant womenrdquo135

- Article 6(5) International Covenant on Civil and Political Rights

The treaties are a unanimously agreed set of non-negotiable standards and obligations By

acceding to the treaties and ratifying them governments commit to protecting and ensuring

childrens rights and to holding themselves accountable for this commitment before the

international community

Even though the practice of capital punishment on juveniles is relatively rare however in clear

contravention of international law nine countries have executed offenders who were juveniles at

the time of their crimes between 1990 and 2005136

These countries include the Peoples Republic

of China (PRC) the Democratic Republic of the Congo Iran Nigeria Pakistan Saudi Arabia

Sudan the United States and Yemen137

The USA has since moved to implement a ban on capital

punishment for juveniles However in most other countries of the preceding list the practice is

still enshrined in the judicial system Iranlsquos record in particular has been abominable over the last

decade It has carried out 39 executions of persons under the age of 18 since 2005 Presently

over a hundred individuals are placed on death row for crimes committed as juveniles The

executions of Mahmoud Asgari Ayaz Marhoni and Makwan Moloudzadeh became international

symbols of Irans child capital punishment and the judicial system that hands down such

134

httpwww2ohchrorgenglishlawcrchtm 135

httpwww2ohchrorgenglishlawccprhtm 136

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf - This document by the Human Rights Watch

called The Last Holdoutslsquo is a good summary of juvenile executions and should be reviewed 137

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 - Contains a list with

statistics and details of countries which have allowed the imposition of death sentence to juveniles

UNHRC 35 of 44

sentences138139140

Saudi Arabia and China too have questionable records that need to be

scrutinized further

While regional treaties and charters usually substantiate international law the Arab Human

Rights Charter of 2004 is unique among regional and international treaties in that the ban on the

juvenile death penalty in it is not absolute but merely optional141

Furthermore national laws in states that observe such a practice are in violation of

international legally-binding charters In Iran and Saudi Arabia laws usually treat a child the

same way as an adult criminal offender would be treated Article 10(3) of the International

Covenant on Civil and Political Rights emphasizes the need for demarcation between the

handling of children and that of adults in stating ―Juvenile offenders shall be segregated from

adults and be accorded treatment appropriate to their age and legal status142

The definition of a child in these Muslim states is unclear as adulthood is associated with

attainment of puberty which is a relative concept The Committee on the Rights of the Child in

January 2005 censured the Saudi government for its practice of imposing the death penalty on

juveniles terming it a serious violation of the fundamental rights The committee was deeply

alarmed over the discretionary power judges hold to treat juveniles as adults as was stated in

the committeelsquos report Iran too was strongly condemned following the release of an

international report highlighting the dire situation in Iran by the International for Human Rights 143

138

httpwwwfoxnewscomstory0293329798200html 139

httpnewsbbccouk2himiddle_east7130380stm 140

httpenwikipediaorgwikiCapital_punishmentIran 141

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 142

httpwww2ohchrorgenglishlawccprhtm 143

httpwwwfidhorgIMGpdfRapport_Iran_finalpdf

UNHRC 36 of 44

On August 19 2008 Iranian authorities executed Seyyed Reza Hejazi at Isfahan Central Prison

for his role in a murder committed in 2003 when he was 15 Hejazi was tried as an adult by

Branch 106 of the Isfahan General Court even if he did not qualify as one under international

stipulations and sentenced to death on November 14 2005144

In Saudi Arabia Mu`id bin

Husayn bin Abu al-Qasim bin `Ali Hakami was executed on July 10 2007 for a murder he

allegedly committed three years earlier when he was 13 years old145

The judges in these states

because of the implementation of the Sharialsquo law have a large amount of discretion with regard

to their rulings This discretion is often abused in the interrogation and judicial proceedings In

Pakistan authorities hanged Mutaber Khan in Peshawar Central Prison on June 13 2006 on

charges of murder of five people The fact that he was held in the juvenile wing of Peshawar

Central prison and the evidence presented by the accused confirming that his age was below 18

at the time of the killings were not taken into account during the trials and Mutaber was charged

as an adult in the case146

While the above does not cover exhaustively the practice of capitally punishing juveniles the

committee is expected to be well read on the matter The committee will be required to devise

ways to strictly apply the existing international law on the subject to curtail further deaths of

juveniles by states A series of recommendations on better implementation of international

covenants will be expected from the committee Delegates at UNHRC will also have to

familiarize themselves with the stipulations in the national laws of countries practicing juvenile

death penalties (Iran Saudi Arabia Pakistan Nigeria Sudan Yemen and UAE among others) to

discuss how these states are constitutionally able to bend international law and mete out the

illegal punishments

144

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 145

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 146

See FIDH and Human Rights Commission of Pakistan ―Slow march to the gallows and ―Condemned Prisoner

Executed Dawn Newspaper Karachi June 14 2005 httpwwwdawncom20060614nat16htm

UNHRC 37 of 44

Universality of Laws Incurring the Death Penalty

In countries which have not abolished the death penalty capital punishment may be imposed

only for the most serious crimes it being understood that their scope should not go beyond

intentional crimes with lethal or other extremely grave consequences

- Safeguards guaranteeing protection of the rights of those facing the death penalty147

Laws incurring the death penalty or capital crimes have certain uniformity the world over This

is of course barring states that are religiously affiliated and whose law systems are not secular

in nature The list of capital crimes for those states with non-secular legal systems is slightly

different The Human Rights Commission had decided that the imposition in the State party of

the death penalty for offences which cannot be characterized as the most serious including

apostasy committing a third homosexual act illicit sex embezzlement by officials and theft by

force are incompatible with Article 6 of the Covenant Economic offences including

embezzlement drug related offences political offences and robbery were also referred to148

The reason why looking into capital crimes and trying to garner a global impression of them is

important is that the death penalty can only realistically be abolished in a piecemeal way This

process will entail shortening the list of capital crimes The UN formally notes that ―in order

fully to guarantee the right to life provided for in article 3 of the Universal Declaration of

Human Rights the main objective to be pursued is that of progressively restricting the number of

offences for which capital punishment may be imposed with a view to the desirability of

abolishing this punishment in all countries149

The first established death penalty laws date as far back as the Eighteenth Century BC in the

Code of King Hammaurabi of Babylon which codified the death penalty for 25 different crimes

By the 1700s 222 crimes were punishable by death in Britain including stealing cutting down a

tree and robbing a rabbit warren In the 19th

century the death penalty was eliminated for over

100 of the 222 crimes punishable by death 150

In modern times the UN Special Rapporteur on

extrajudicial summary or arbitrary executions has stated that the death penalty should be

eliminated for economic crimes and drug-related offences and that the restrictions to its use

―exclude the possibility of death sentences for so-called victimless offences ndash including acts of

treason espionage and other vaguely defined acts usually described as crimes against the Statelsquo

or disloyaltylsquo and ―actions primarily related to prevailing moral values such as adultery and

prostitution as well as matters of sexual orientation151

147

httpwww2ohchrorgenglishlawpdfprotectionpdf 148

httpwwwunhchrchtbsdocnsf0bc310a747155dff88025655300537faeOpendocument 149

General Assembly resolution 2857 httpwwwunodcorgpdfcompendiumcompendium_2006_part_01_05pdf 150

httpdeathpenaltycurriculumorgstudentcabouthistoryhistoryPDF 151

httpswwwabofimedia24259report10pdf

UNHRC 38 of 44

Contrary to the made recommendations even political dissent warrants a death sentence in

several countries most notably in China and Iran In 2010 nearly 20 Kurdish people were

executed for political offences in Iran The country is known for keeping dissent especially from

the Kurds suppressed Most are executed on the grounds of moharebeh or enmity against God

Moreover challenging the power of the Ayatollah is also punishable by death These charges are

neither explicit nor in line with international guidelines over what crimes are punishable

capitally In Iran judges must handle such cases carefully as Iranian law provides for only one

punishment if an individual is found to be guilty of treason Libya too thwarts political dissent

with firm laws in place for punishing by death those who illegally form groups organizations or

associations against the state152

Saudi Arabia too is worth note for its vaguely phrased laws governing capital punishment

Intentional murder and crimes that spread ―mischief in the land (Fasad fil-ardh) merit death In

2010 the government announced that it had executed 26 people all by beheading Crimes that

―spread mischief include witchcraft and sorcery153

How is one convicted of witchcraft in the

21st century What can the international community do when regarding countries such as these

Treason arguably along with murder is the capital crime that has yet to be phased out by many

countries In some such as Brazil treason during warfare is the only crime for which a person

can be sentenced to death In the Gaza Strip under Hamas any sort of cooperation with Israeli

forces during military actions is also punishable by death In others including Algeria Bahrain

Iran and Malaysia treason is punishable by death in all circumstances The United States too has

federal laws governing treason under which traitors ―shall suffer death154

Child sex abuse is another crime that is widely held to merit the death penalty In Russia for

example according to the Russian Public Opinion Research Center an overwhelming majority

consider the death penalty to be an acceptable punishment especially in relation to molestation

155 In 2009 however Russias Constitutional Court effectively abolished the death penalty by

extending indefinitely a 13-year-old moratorium on capital punishment156

Indonesia has some of the strictest penalties for drug related crimes in the world Roughly half of

those on death row are incriminated with drug-related charges157

In 2008 though the most high

profile executions were of terrorists Three of those found responsible for the 2002 Bali

bombings were executed by shooting158

Generally speaking however a significant proportion of

152

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 153

httpwwwstategovgdrlrlshrrpt2010nea154472htm 154

httpdeathpenaltyproconorgviewresourcephpresourceID=1172 155

httpenrianrutrenddeath_penalty 156

httpwwwreuterscomarticle20091119idUSLJ330478 157

httpwwwnytimescom20080711worldasia11iht-indo114421132html 158

httpnewsbbccouk2hiasia-pacific7718246stm

UNHRC 39 of 44

the executions or death sentences recorded (in 2010) in China Egypt Indonesia Iran Laos

Libya Thailand United Arab Emirates and Yemen were for drug-related offences In December

2010 the amended Anti-Narcotics law came into force in Iran extending the scope of the death

penalty to include additional categories of illegal drugs (for example crystal meth) possession

of which became punishable by death Also around the same time the National Assembly of

Gambia voted to extend the scope of the death penalty by making the possession of more than

250g of heroin or cocaine an offence punishable by death159

Several states allow for the death penalty for crimes of blasphemy and other crimes for

nonviolent expression and association In Pakistan Aasia Bibi a Christian mother of five was

charged with blasphemy and sentenced to death after a trial largely believed to be unfair on 8

November 2010 She is currently on death row The country is also noted for its laws concerning

capital crimes The list includes 27 crimes most of which go beyond the notion of ―most serious

crimes as recommended by the International Covenant on Civil and Political Rights Extra-

marital sex and blasphemy are examples of some capital crimes in the country In December

2007 Pakistan voted against a United Nation General Assembly resolution for a moratorium on

the death penalty The year before however the nation amended its law on rape and adultery

charges which are no longer punishable by death160

As far back as 1989 recommendations have been made as to how to abolish the death penalty

Member states (of the UN) have been urged ―to publish for each category of offence for which

the death penalty is authorized and if possible on an annual basis information about the use of

the death penalty including the number of persons sentenced to death the number of executions

actually carried out the number of persons under sentence of death the number of death

sentences reversed or commuted on appeal and the number of instances in which clemency has

been granted and to include information on the extent to which the safeguards referred to above

are incorporated in national law161

The committee must inspect how far this recommendation

has been adopted and should seek to rectify the weaknesses in the system of gradually

abolishing the death penalty Can a target year be designated by which crimes meriting the death

penalty could be made universal How can countries with non-secular legal systems be brought

into the fold of international law

159

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 160

httpwwwfiacatorgenIMGpdfdppakistan-enpdf 161

httpgraduateinstitutechfacultyclaphamhrdocdocsecosocresolutiondeathpen1989html

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 26: UNHRCFINAL

UNHRC 22 of 44

Xinjianglsquos development and reduce the economic burden on local governments and the local

people of all ethnic groups80

The heavy militarization of ethnic minority

regions also enables the Chinese government

to quickly respond to skirmishes between the

minorities and the Han For example clashes

between the Uighurs and the Han in the

XUAR are quickly clamped down upon The

response by Chinese authorities always

focuses on the minority groups in the region

The typical response includes a period of

strike hardlsquo security measures during which the minorities are subjected to police patrols of

crowded areas identity checks street searches increased criminal investigations and accelerated

trials The measures also include mandatory political indoctrination classes for the Uighur

population Swift Chinese response to ethnic dissidence precludes the possibility of trying

protestersrioters under due process This phenomenon also contributes to the controversy of

China and its policy of arbitrary imprisonment

Essential to any countrylsquos social progress is the protection and provision of the basic rights to all

its citizens For a country like China which has a significant standing in the international

community the degree to which human rights are upheld comes under added scrutiny Minorities

need to be guaranteed provision of not only fundamental rights but additional ones that grant

them equal opportunities

Recent Developments

3 November 2010 UN Secretary General pushes China on human rights

Ban Ki-moon the United Nations secretary general has called on China to respect human rights

after critics accused him of dodging the issue on a trip to Beijing The UN secretary general met

Hu Jintao the Chinese president but failed to challenge Mr Hu on the imprisonment of Liu

Xiaobo the democracy activist who was awarded this years Nobel Peace prize and raise the

issue of human rights81

80

httpwwwchinaorgcne-white200305269htm 81

httpwwwtelegraphcouknewsworldnewsasiachina8107148UN-Secretary-General-pushes-China-on-human-

rightshtml

UNHRC 23 of 44

5 November 2011 Yeqing Ji from Shanghai China will most likely not be able to have children

after she said two forced abortions physically impaired her uterus82

8 September 2011 The Chinese government has renewed Googlelsquos license to allow it to

continue operating its local website in the country83

13 November 2011 Seven months ago

Chinese police detained the countrylsquos most prominent artist Ai Weiwei at the airport and drove

him to a hidden location It was the beginning of what is to be a two-and-a-half month nightmare

for the architect and sculptor who is also a former darling of the Communist Party who later

turned into an outspoken government critic Ai was held on vague charges of economic crimes

was kept in isolation and subjected to Kafka-esque interrogations84

April 19 2011 Amnesty International a 21-year-old monk Phuntsog set himself on fire in an

apparent anti-government protest in March 2011 Instead of putting out the flames Chinese

police beat the young monk creating huge resentment in the monastery85

At least 11 ethnic

Tibetans have been detained for protesting against the event and against government policies

They are at risk of torture and other ill-treatment86

29 May 2011 300 Tibetan monks detained in Kirti monastery by Chinese security forces87

15 September 2011 Chinese Uighurs economic fears

Amid ethnic tensions minority regards modernization plans in Xinjiang as favoring Han Chinese

migrants88

20 November 2011 Another of Chinalsquos minorities the Hui Muslims in Ningxia do not feel

stigmatized

―There is an important reason why Hui and Han Chinese get along with each other Unlike

Muslims of the other ethnic minorities like Uighur Kazakh Kyrgyz and Tajik the Hui Muslims

speak Mandarin just like the Hans89

82

httpabcnewsgocomBusinesswoman-china-forced-abortions-leaves-unable-

childrenstoryid=14880884Tsia7LIk6so 83

httpwwwbbccouknewsbusiness-14832392 84

httpwwwthedailybeastcomnewsweek20111113ai-weiwei-speaks-out-on-his-detentionhtml 85

httphradvorgaggregatorsources10 86

httpwwwamnestyorgenlibraryassetASA170212011end75f7611-be66-4d5a-9391-

c80c43501d56asa170212011enhtml 87

httphumanrightshouseorgArticles16503html 88

httpwwwaljazeeracomvideoasia20110920119158016969449html 89

httpwwwtodayszamancomnews-263322-chinas-hui-muslims-do-not-feel-stigmatizedhtml

UNHRC 24 of 44

Conclusion

The United Nations Human Rights Council at LUMUN 2012 will be looked upon to provide a

framework for the resolution of these issues in a universal context The scope of the issues

should be expanded and applied to countries other than China The committee will have to make

recommendations which have universal application and resolve all aspects of the issue

comprehensively For any queries related to the study guide please do contact either (or both)

the committee directors at the given addresses

UNHRC 25 of 44

Topic Area B Abolishing the Death Penalty

Introduction to the Topic Area

The death penalty is formally defined as the execution of an offender sentenced to death after

conviction by a court of law of a criminal offenselsquo90

The concept of a capital crime is subjective

and states have made use of this practice in response to multiple forms of crime The use of the

death penalty has produced much controversy with regard to its apparent violation of

fundamental human rights as delineated in the Universal Declaration of Human Rights and

subsequent human rights charters and treaties It is asserted that the use of death penalty is in

contravention to the peopleslsquo right to life promised to every individual under Article 3 of the

Declaration91

Moreover Article 2 of the Charter of Fundamental Rights of the European Union

lucidly bars the imposition of death penalty as a form of punishment92

Arguments against the

use of death penalty are also made on the grounds of inhumane methods which are employed to

see out the process Historically multiple methods have been used which include death by

hanging severing of the head lethal injection shooting and electrocution93

94

As a response states have made keen efforts to abolish

the death penalty particularly in the last two decades as

can be interpreted from the graph on the right which

represents the number of states that have abolished the

death penalty Countries belonging to the European

region with the exclusion of Russia and Belarus have

sought to revoke the use of the practice The death

penalty is most commonly seen to be a formal practice

in most of the developing countries The trend is

apparent in Latin America Africa and Asia

96 countries have formally abandoned the use of death penalty 58 countries allow the use95

Other states have abolished the penalty in practice but the laws remain in place for the

imposition of the penalty as a response to certain crimes The imposition of the death penalty has

90

httpwwwbritannicacomEBcheckedtopic93902capital-punishment 91

httpwwwunorgendocumentsudhr 92

httpwwweuroparleuropaeucharterpdftext_enpdf 93

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffle

re-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 94

httpwwwdeathpenaltyinfoorgmethods-execution 95

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf

Figure 1 (Drag to enlarge)

UNHRC 26 of 44

seen a decline over the recent years with a fall in the number of executions that take place

annually It would however be incorrect to assume that the practice is not prevalent or widely in

effect Amnesty International reported that at least 2024 new death sentences were imposed in 67

countries in 2010 Moreover there were at least 17833 people sentenced to death worldwide at

the end of 201096

Again these are minimum figures which are the safest that can be inferred

from the given research There were 527 known executions carried out in 2010 globally97

This

figure however does not include the number of executions that took place in China where

analysts believe that more than a thousand people were put to death in the past year

The statistics represent the number of people executed through capital punishment One way to

formally define capital punishment is to regard it as the state sanctioned killing of an individual

through a judicial process as a punishment for a crime (defined as a capital crime by the state)98

Capital punishment is the most obvious and prevalent manifestation of the death penalty It is

often perceived as a statelsquos right in order to preserve law and order against any individual who

engages in serious crimes that threaten other individuals or the state Those who advocate against

the use of capital punishment label it as a symptom of a culture of violence not a solution to

itlsquo99

The controversy surrounding the topic is based on the legal ethical and moral acceptability

of the statelsquos right to an individuallsquos life The debate entails several social and economic factors

some of which will be reviewed in closer detail in the relevant section of this guide

One of the most striking aspects related to the issue is the imposition of the capital punishment

on juveniles The sentencing of juveniles to death is in clear breach of international law The

morality and validity of such a practice is often called into question and has been put under

relentless scrutiny despite all of which the practice is still carried out in a number of countries

Historically the United States China and Iran have the worst records relating to juvenile death

sentences100

The study guide also includes a separate section for the case of juveniles in which

the legal and social aspects of the problems are detailed

As stated states have made use of the death penalty to punish crimes of varying natures The use

of the death penalty is reserved for only the most seriouslsquo crimes as put forth in international

law101

The notion of a capital crime however is a subjective one states that have doled out

death sentences have defined it differently In certain countries the death penalty is only used to

charge criminals accused of war crimes In other countries the penalty is reserved for crimes like

96

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf 97

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010 98

httpusersrcncommwooddeathpenhtml 99

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 100

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 101

httpwwwunorgdocumentsecosocdocs1995e1995-78htm

UNHRC 27 of 44

murder rape or even robbery States also use the death penalty against individuals who are guilty

of treason The issue however is that many states practicing the death penalty impose the

punishment even when the crimes do not meet the threshold for the aforementioned most

seriouslsquo crimes The ability of states to define what constitutes as a capital crime has led to states

abusing their powers as has been observed in the sentences ordained by military courts

Moreover even the radicals who make the argument of the punishment fitting the crime agree

that in many instances individuals have been executed for softlsquo crimes crimes that were

certainly not tantamount to charges of murder or crimes against humanity The issue of apparent

violations of human rights is further exacerbated in these instances The study guide will discuss

the universal crimes that have resulted in the awarding of the death penalty and examine the

issue further The committee will be expected to discuss the feasibility of drawing up an

international definition of crimes which in isolated instances perhaps may be appropriate for a

sentence like the death penalty

Another pertinent aspect surrounding the debate is that of extrajudicial killings The execution of

a person by state authorities without the authority of a judicial proceeding is termed as an

extrajudicial killing Many states have used extrajudicial killings to establish their authority and

order without having to wade through the legal process By doing so they have deprived scores

of people of their fundamental right to free and fair trials Governments have also employed this

tactic to exercise political aggression and to suppress dissent A particular point of concern is the

fact that some states have made use of these killings even when they have officially revoked the

imposition of the death penalty Extrajudicial killings are carried out persistently in many

countries ndash the list includes countries like Iran Iraq Israel Philippines102

Most recently the

killing of Anwar al-Awlaki and Samir Khan in Yemen by a sanctioned National Security Council

move by the USA was an example of states embarking on such paths to eliminate threats to

national securitylsquo103

102

Multiple citations for each country can be found in the second paragraph article titled Extrajudicial killinglsquo on

Wikipedia 103

httpwwwtelegraphcouknewsworldnewsbarackobama7564581Barack-Obama-orders-killing-of-US-cleric-

Anwar-al-Awlakihtml

UNHRC 28 of 44

Wrongful convictions lead many to believe in the inherent incapacity of the death penalty to

serve justice On September 21 2011 US citizen Troy Davis was executed in Georgia after

which seven of the nine witnesses who testified against him in the case that led to his execution

recounted or retracted their evidences A petition with nearly one million signatures was put

forth to reconsider his case it was rejected On the same day a 17 year old boy was publicly

hanged in Iran for killing a popular athlete his justification based on self-defense was ignored

Also on the same day a Pakistani national was executed in China on grounds of drug trafficking

an offence that does not often result in capital punishment The need for the resolution of this

issue is pressing and the committee needs to deal with all aspects of the problem in a

comprehensive and enduring manner104

Capital Punishment

In 2010 23 countries implemented capital punishment A total of 527 executions (plus the 1000+

carried out in China alone) were known to have taken place with Iran Yemen USA and North

Korea meting out a significant number of sentences105

The figure is lower than the records

computed for years past There are more states which are now abolitionist either in law or in

practice with regard to the imposition of the punishment Gabon was officially the last country

to rescind the practice while bills calling for an end to capital punishment have been presented

to parliaments in Lebanon Mali Mongolia and South Korea106

Renewed efforts are

104

httpwwwamnestyorgennews-and-updatesus-executes-death-row-prisoner-troy-davis-2011-09-21 105

httpwwwguardiancouknewsdatablog2011mar29death-penalty-countries-world 106

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010

UNHRC 29 of 44

simultaneously being made on the international front to implement laws against capital

punishment A third resolution establishing a moratorium on the use of death penalty passed the

UN General Assembly on December 21 2010107

Despite the increasing momentum towards an eventual elimination of the practice the number of

executions taking place annually is a cause of major concern Advocates of the death penalty

assert that the practice is an effective means of deterring crime in society Public executions are

often held in Iran Afghanistan and Palestine for example to demonstrate the fate awaiting

those who commit similar crimes108

Arguments are made on the grounds of justice that it is

proper and fair to take an eye for an eye and a life for a life and that some individuals deserve

it for the crimes they commit

Those opposing the practice question the morality of an action sanctioned by the state which

endorses deprivation of the right to life a fundamental human right under the Universal

Declaration of Human Rights109

There are inescapable flaws within legal systems which are

aggravated by discrimination prosecutorial misconduct and inadequate legal representation

Moreover the risk of executing the innocent can never be eliminated110

An alternative is

presented in the form of imprisonment for life without parole which results in a parallel debate

is imprisonment for life a viable surrogate to the practice of death penalty A thread from this

debate also relates to the economic feasibility of carrying out a death sentence as opposed to the

feasibility of imprisonment for life

Deterrence

Capital punishment is often propagated as an adequate approach in the deterrence and prevention

of crime The logic is that if murderers are sentenced to death potential murderers will think

twice before killing for fear of losing their own life The deterrence theory presumes that the

once the punishment for a certain crime is established the criminal by committing the crime

voluntarily assumes the risk of receiving the prescribed punishment for the crime Only when the

most severe punishment has been set will there be a possibility of an individual evaluating their

actions in light of the consequences111

107

httpwwwundemocracycomA-RES-62-149pdf 108

httpwwwamnestyorgennews-and-updatessharp-rise-public-executions-iran-executes-first-juvenile-

offenders-2011-2011-04-27 109

wwwunorgendocumentsudhr 110

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 111

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 30 of 44

The death penalty it is asserted ensures that convicted criminals do not offend again moreover

it is deemed to be a just penalty for atrocious crimes It is further alleged that many criminals

who are set free even after lengthy sentences regress and go on to commit heinous crimes

Therefore there should never be the possibility of a release clause112

The deterrence theory is modeled on the grounds of human psychology logic and rationale As a

professor of jurisprudence Ernest van den Haag PhD wrote ―Common sense lately bolstered

by statistics tells us that the death penalty will deter murder if anything can People fear nothing

more than death Therefore nothing will deter a criminal more than the fear of death These

statements were further validated by a US Supreme Court Justice who said on record that

Prima facie the penalty of death is likely to have a stronger effect as a deterrent to normal

human beings than any other form of punishmentlsquo113

Numerous studies have been conducted on

the subject with varying results One of the most established studies was conducted in USA

using a panel data set of over 3000 counties from 1977 to 1996 which concluded that on

average one death sentence resulted in 18 fewer murders114

Delegates will be expected to be

familiar with other similar studies

These studies are commonly refuted as not crediblelsquo by opponents of the capital punishment

who also deny the correlation between crime and death penalty as a fabricated relationship which

cannot be empirically established115116

A study of the relationship between capital punishment

and the incidence of murder was conducted for the UN in 1988 and updated in 2002 The

conclusion was ―The investigation has not provided scientific proof that executions have more

deterrent effect than life imprisonment It is unlikely that such evidence will ever come

Deterrence hypothesis finds no support in the survey117

Another counter-argument asserts that crime is still a persistent feature of the societies that

continue to award the death penalty while many of the abolitionist states enjoy low crime rates

This can be evidenced by comparing the crime rate in USA or Pakistan with that of Canada or

some European state In Canada for example the homicide rate per 100000 fell from a peak of

309 in 1975 the year before the abolition of the death penalty for murder to 241 in 1980 and

in 2003 27 years after abolition the homicide rate was 173 per 100000 44 per cent lower than

in 1975118

112

httpwwwdeathpenaltyinfoorgfacts-about-deterrence-and-death-penalty 113

httpdeathpenaltyproconorgviewresourcephpresourceID=002000 114

httpdeathpenaltyproconorgsourcefilesThe20Deterrent20Effect20of20Capital20Punishmentpdf ndash

Delegates should carefully examine certain parts of this document to establish the credibility of the assertions made

They should also invest in trying to locate studies that refute the assertions made in this and similar studies 115

httpwwwdeathpenaltyinfoorglaw-enforcement-views-deterrencelawenforcement 116

httpwwwdeathpenaltyinfoorgDonohueDeterpdf 117

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 118

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml

UNHRC 31 of 44

The lack of evidence on the production of a unique deterrent effect points to the danger of

relying on the deterrence hypothesis as a basis for public policy on the death penalty

Retribution amp Morality

An important terminology that delegates need to familiarize themselves with is that of

―retributivism119

It is defined as ―a policy of criminal justice that sponsors the punishment of

criminals in retribution for the harm they have inflicted120

Criminals deserve to be punished in

proportion to the gravity of their crime regardless of whether the victim or anyone else desires

it we may all deeply regret having to carry out the punishment but consider it warrantedlsquo is

what many say in defense of the theory121

The need for the establishment of a visibly just state arises from the potential risks of not having

one As has been visible in many developing countries with shaky legal systems when criminals

are not adequately punished for their unlawful behavior the public takes the law into its own

hands and deals out vigilante justice It is asserted that retributivism is essential for a functioning

society where individuals respect the supremacy of law

The concept of retribution in society is also grounded in religious beliefs The concept of an eye

for an eye has been a part of all three Abrahamic traditions However in the modern world it is

Islamic nations that still retain the practice based on these grounds Similar traditions can be

found in Hinduism Christianity and Buddhism as well as other religions in different parts of the

world In many non-secular countries the constitutions and state laws are derived from religious

doctrines

Opponents dismiss this aspect of the argument as being emotionally charged with little rational

logic to support the contention They claim that the establishment of capital punishment gives

birth to a culture of violence endorsed by the state It perpetuates the cycle of aggression and

brutality something which the state should be actively inhibiting not endorsing

Wrongful Convictions

The death penalty carries with it the danger of wrongfully convicting an innocent person for

crimes he did not commit There is the potential for capital punishment to evolve into sheer

miscarriage of justice as in certain circumstances states are often seen to rush the trials and

convict the accused hastily This practice takes foremost apparently in military courts often in

119

Cavadino M amp Dignan J (1997) The Penal System An Introduction (2nd ed) p 39 London Sage 120

httpdictionaryreferencecombrowseretributivism 121

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 32 of 44

the developing or lesser-developed countries where the system of law is not properly established

It is not however exclusive to these countries Examples can be drawn from countries like

Philippines Thailand Iran and Palestine to name just a few where executions are carried out at

alarming pace removing the possibility of reviews

On 15 August 2004 Atefah Rajabi Sahaaleh was hanged in a public square in the Iranian city of

Neka Her death sentence was imposed for adultery and crimes against chastity122123

Atefah

was executed a week after the trial was run Following the execution the Judge for the case was

arrested for investigation by the Intelligence Ministry The media reported that in addition to the

confession of his rape of Atefeh Judge Rezai who served as judge jury and executioner also

confessed to torturing her during interrogations to extract names of others she had relations with

No transcripts from court proceedings were recorded The State alleged that Atefah was 22 at the

time of her execution A witness later claimed The judge just looked at her body because of

the developed physique and declared her as 22124

ndash her birth certificate revealed she was born

in 1988 Furthermore Atefah did not have access to a proper defense where she could contest

charges leveled against her This is one example of many such cases of miscarriage of justice

Something that recurs in these cases is the failure of the police or prosecuting authorities to

prevent the use of unreliable witnesses the misuse of evidence or confessions and the provision

of inadequate defense representation The advent of DNA profiling and the use of it as positive

evidence in criminal cases has resulted in the exoneration of multiple death row inmates on

grounds of forensic evidence or lack thereof Since 1973 138 people have been released from

death row in the United States after it was proven that they were innocent125

In 2009 Paul

House was cleared of murder and exonerated in Tennessee USA after having served 22 years

on death row His innocence was proclaimed in light of substantial additional DNA testing and

further investigationlsquo 126

Amnesty International has noted examples of wrongful convictions from elsewhere as well

including Jamaica Japan China Nigeria and Tanzania127

Paul G Cassell a former law clerk to

the Chief Justice of USA stated the mistaken release of guilty murderers should be of far greater

concern than the speculative and heretofore nonexistent risk of the mistaken execution of an

innocent personlsquo highlighting the case made by those who advocate the death penalty even in

light of wrongful convictions128

122

httpwwwcosmolearningcomdocumentariesexecution-of-a-teenage-girl1 123

httpnewsbbccouk2hi5217424stm 124

httpnewsbbccouk2hi5217424stm 125

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 126

httparticlescnncom2009-05-13justicetennesseeexonerated_1_death-row-inmate-dna-evidence-house-

arrest_s=PMCRIME 127

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 128

httpdeathpenaltycurriculumorgstudentcaboutargumentstestimony3bhtm

UNHRC 33 of 44

Alternative to Death Penalty

All abolitionist states have reverted to the practice of sentencing criminals to life imprisonment

(some without parole) which is also termed as death by incarceration Widely regarded as a more

humane course of action life imprisonment is also alleged to be a more economical practice

While ensuring public safety by keeping criminals away from society this system also saves the

lives of innocent people who have been falsely or wrongfully convicted The setup inhibits and

curbs the cycle of violence while retaining the deterrence factor it is strongly asserted

Advocates for the death penalty are averse towards life imprisonment for a number of reasons

They cite the unreliability of the system as one of the flaws which impedes the possibility of

such a sentence being successful A certain James Moore serves as a valid example in this case

In 1962 James Moore raped and strangled 14-year-old Pamela Moss The victimlsquos parents opted

out of capital punishment for Moore and he was instead sentenced to life in prison without

parole Twenty years later a change in sentencing laws in 1982 renders James Moore eligible for

parole every two years129130

Kenneth McDuff is another example McDuff was convicted and sentenced to life imprisonment

Years later due to the issue of overcrowding in prisons McDuff was released following which

he killed eight more people McDufflsquos example is of an individual from a developed country

with an established legal system in place131

Overcrowding is a feature of prisons in developing

or lesser developed countries In many such states criminals have also been known to easily

break out from penitentiaries

The economic aspect of the debate is murky at best There is a lack of empirical data on the

subject which is why the arguments of both these sides cannot be settled beyond doubt

Advocates of capital punishment insist that the overall costs of the practice are far lesser than the

costs of housing an inmate for a lifetime132

They also suggest that the life imprisonment allows

criminals to conceive new habeas corpus petitions which on legal grounds cannot be rejected

automatically resulting in more trials

On the other hand substantial arguments are made which stress that the cost of legal proceedings

in capital cases is in truth more than that of other cases States and nations spend a significant

portion of the taxpayerlsquos money in meting out such punishments133

Delegates when addressing

this portion of the debate will need to be aware of the financial aspects of the issue as it forms

for many states an important part of whether capital punishment should be revoked or

not

129

httpwesleylowecomcphtmldeter 130

httpwwwnytimescomkeywordparole 131

httpwesleylowecomcphtmldeter 132

Ibid ndash view section titled Capital Punishment and its costslsquo 133

httpwwwamnestyusaorgour-workissuesdeath-penaltyus-death-penalty-factsdeath-penalty-cost

UNHRC 34 of 44

Imposition of Death Penalty on Juveniles

The prohibition on the death penalty for crimes committed by juvenile offendersmdashpersons under

age 18 at the time of the offensemdashis well established in international law specifically in the

Convention on the Rights of Child

ldquoNo child shall be subjected to torture or other cruel inhuman or degrading treatment or

punishment Neither capital punishment nor life imprisonment without possibility of release shall

be imposed for offences committed by persons below eighteen years of agerdquo134

- Article 37(a) Convention on the Rights of Child

ldquoSentence of death shall not be imposed for crimes committed by persons below eighteen years

of age and shall not be carried out on pregnant womenrdquo135

- Article 6(5) International Covenant on Civil and Political Rights

The treaties are a unanimously agreed set of non-negotiable standards and obligations By

acceding to the treaties and ratifying them governments commit to protecting and ensuring

childrens rights and to holding themselves accountable for this commitment before the

international community

Even though the practice of capital punishment on juveniles is relatively rare however in clear

contravention of international law nine countries have executed offenders who were juveniles at

the time of their crimes between 1990 and 2005136

These countries include the Peoples Republic

of China (PRC) the Democratic Republic of the Congo Iran Nigeria Pakistan Saudi Arabia

Sudan the United States and Yemen137

The USA has since moved to implement a ban on capital

punishment for juveniles However in most other countries of the preceding list the practice is

still enshrined in the judicial system Iranlsquos record in particular has been abominable over the last

decade It has carried out 39 executions of persons under the age of 18 since 2005 Presently

over a hundred individuals are placed on death row for crimes committed as juveniles The

executions of Mahmoud Asgari Ayaz Marhoni and Makwan Moloudzadeh became international

symbols of Irans child capital punishment and the judicial system that hands down such

134

httpwww2ohchrorgenglishlawcrchtm 135

httpwww2ohchrorgenglishlawccprhtm 136

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf - This document by the Human Rights Watch

called The Last Holdoutslsquo is a good summary of juvenile executions and should be reviewed 137

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 - Contains a list with

statistics and details of countries which have allowed the imposition of death sentence to juveniles

UNHRC 35 of 44

sentences138139140

Saudi Arabia and China too have questionable records that need to be

scrutinized further

While regional treaties and charters usually substantiate international law the Arab Human

Rights Charter of 2004 is unique among regional and international treaties in that the ban on the

juvenile death penalty in it is not absolute but merely optional141

Furthermore national laws in states that observe such a practice are in violation of

international legally-binding charters In Iran and Saudi Arabia laws usually treat a child the

same way as an adult criminal offender would be treated Article 10(3) of the International

Covenant on Civil and Political Rights emphasizes the need for demarcation between the

handling of children and that of adults in stating ―Juvenile offenders shall be segregated from

adults and be accorded treatment appropriate to their age and legal status142

The definition of a child in these Muslim states is unclear as adulthood is associated with

attainment of puberty which is a relative concept The Committee on the Rights of the Child in

January 2005 censured the Saudi government for its practice of imposing the death penalty on

juveniles terming it a serious violation of the fundamental rights The committee was deeply

alarmed over the discretionary power judges hold to treat juveniles as adults as was stated in

the committeelsquos report Iran too was strongly condemned following the release of an

international report highlighting the dire situation in Iran by the International for Human Rights 143

138

httpwwwfoxnewscomstory0293329798200html 139

httpnewsbbccouk2himiddle_east7130380stm 140

httpenwikipediaorgwikiCapital_punishmentIran 141

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 142

httpwww2ohchrorgenglishlawccprhtm 143

httpwwwfidhorgIMGpdfRapport_Iran_finalpdf

UNHRC 36 of 44

On August 19 2008 Iranian authorities executed Seyyed Reza Hejazi at Isfahan Central Prison

for his role in a murder committed in 2003 when he was 15 Hejazi was tried as an adult by

Branch 106 of the Isfahan General Court even if he did not qualify as one under international

stipulations and sentenced to death on November 14 2005144

In Saudi Arabia Mu`id bin

Husayn bin Abu al-Qasim bin `Ali Hakami was executed on July 10 2007 for a murder he

allegedly committed three years earlier when he was 13 years old145

The judges in these states

because of the implementation of the Sharialsquo law have a large amount of discretion with regard

to their rulings This discretion is often abused in the interrogation and judicial proceedings In

Pakistan authorities hanged Mutaber Khan in Peshawar Central Prison on June 13 2006 on

charges of murder of five people The fact that he was held in the juvenile wing of Peshawar

Central prison and the evidence presented by the accused confirming that his age was below 18

at the time of the killings were not taken into account during the trials and Mutaber was charged

as an adult in the case146

While the above does not cover exhaustively the practice of capitally punishing juveniles the

committee is expected to be well read on the matter The committee will be required to devise

ways to strictly apply the existing international law on the subject to curtail further deaths of

juveniles by states A series of recommendations on better implementation of international

covenants will be expected from the committee Delegates at UNHRC will also have to

familiarize themselves with the stipulations in the national laws of countries practicing juvenile

death penalties (Iran Saudi Arabia Pakistan Nigeria Sudan Yemen and UAE among others) to

discuss how these states are constitutionally able to bend international law and mete out the

illegal punishments

144

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 145

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 146

See FIDH and Human Rights Commission of Pakistan ―Slow march to the gallows and ―Condemned Prisoner

Executed Dawn Newspaper Karachi June 14 2005 httpwwwdawncom20060614nat16htm

UNHRC 37 of 44

Universality of Laws Incurring the Death Penalty

In countries which have not abolished the death penalty capital punishment may be imposed

only for the most serious crimes it being understood that their scope should not go beyond

intentional crimes with lethal or other extremely grave consequences

- Safeguards guaranteeing protection of the rights of those facing the death penalty147

Laws incurring the death penalty or capital crimes have certain uniformity the world over This

is of course barring states that are religiously affiliated and whose law systems are not secular

in nature The list of capital crimes for those states with non-secular legal systems is slightly

different The Human Rights Commission had decided that the imposition in the State party of

the death penalty for offences which cannot be characterized as the most serious including

apostasy committing a third homosexual act illicit sex embezzlement by officials and theft by

force are incompatible with Article 6 of the Covenant Economic offences including

embezzlement drug related offences political offences and robbery were also referred to148

The reason why looking into capital crimes and trying to garner a global impression of them is

important is that the death penalty can only realistically be abolished in a piecemeal way This

process will entail shortening the list of capital crimes The UN formally notes that ―in order

fully to guarantee the right to life provided for in article 3 of the Universal Declaration of

Human Rights the main objective to be pursued is that of progressively restricting the number of

offences for which capital punishment may be imposed with a view to the desirability of

abolishing this punishment in all countries149

The first established death penalty laws date as far back as the Eighteenth Century BC in the

Code of King Hammaurabi of Babylon which codified the death penalty for 25 different crimes

By the 1700s 222 crimes were punishable by death in Britain including stealing cutting down a

tree and robbing a rabbit warren In the 19th

century the death penalty was eliminated for over

100 of the 222 crimes punishable by death 150

In modern times the UN Special Rapporteur on

extrajudicial summary or arbitrary executions has stated that the death penalty should be

eliminated for economic crimes and drug-related offences and that the restrictions to its use

―exclude the possibility of death sentences for so-called victimless offences ndash including acts of

treason espionage and other vaguely defined acts usually described as crimes against the Statelsquo

or disloyaltylsquo and ―actions primarily related to prevailing moral values such as adultery and

prostitution as well as matters of sexual orientation151

147

httpwww2ohchrorgenglishlawpdfprotectionpdf 148

httpwwwunhchrchtbsdocnsf0bc310a747155dff88025655300537faeOpendocument 149

General Assembly resolution 2857 httpwwwunodcorgpdfcompendiumcompendium_2006_part_01_05pdf 150

httpdeathpenaltycurriculumorgstudentcabouthistoryhistoryPDF 151

httpswwwabofimedia24259report10pdf

UNHRC 38 of 44

Contrary to the made recommendations even political dissent warrants a death sentence in

several countries most notably in China and Iran In 2010 nearly 20 Kurdish people were

executed for political offences in Iran The country is known for keeping dissent especially from

the Kurds suppressed Most are executed on the grounds of moharebeh or enmity against God

Moreover challenging the power of the Ayatollah is also punishable by death These charges are

neither explicit nor in line with international guidelines over what crimes are punishable

capitally In Iran judges must handle such cases carefully as Iranian law provides for only one

punishment if an individual is found to be guilty of treason Libya too thwarts political dissent

with firm laws in place for punishing by death those who illegally form groups organizations or

associations against the state152

Saudi Arabia too is worth note for its vaguely phrased laws governing capital punishment

Intentional murder and crimes that spread ―mischief in the land (Fasad fil-ardh) merit death In

2010 the government announced that it had executed 26 people all by beheading Crimes that

―spread mischief include witchcraft and sorcery153

How is one convicted of witchcraft in the

21st century What can the international community do when regarding countries such as these

Treason arguably along with murder is the capital crime that has yet to be phased out by many

countries In some such as Brazil treason during warfare is the only crime for which a person

can be sentenced to death In the Gaza Strip under Hamas any sort of cooperation with Israeli

forces during military actions is also punishable by death In others including Algeria Bahrain

Iran and Malaysia treason is punishable by death in all circumstances The United States too has

federal laws governing treason under which traitors ―shall suffer death154

Child sex abuse is another crime that is widely held to merit the death penalty In Russia for

example according to the Russian Public Opinion Research Center an overwhelming majority

consider the death penalty to be an acceptable punishment especially in relation to molestation

155 In 2009 however Russias Constitutional Court effectively abolished the death penalty by

extending indefinitely a 13-year-old moratorium on capital punishment156

Indonesia has some of the strictest penalties for drug related crimes in the world Roughly half of

those on death row are incriminated with drug-related charges157

In 2008 though the most high

profile executions were of terrorists Three of those found responsible for the 2002 Bali

bombings were executed by shooting158

Generally speaking however a significant proportion of

152

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 153

httpwwwstategovgdrlrlshrrpt2010nea154472htm 154

httpdeathpenaltyproconorgviewresourcephpresourceID=1172 155

httpenrianrutrenddeath_penalty 156

httpwwwreuterscomarticle20091119idUSLJ330478 157

httpwwwnytimescom20080711worldasia11iht-indo114421132html 158

httpnewsbbccouk2hiasia-pacific7718246stm

UNHRC 39 of 44

the executions or death sentences recorded (in 2010) in China Egypt Indonesia Iran Laos

Libya Thailand United Arab Emirates and Yemen were for drug-related offences In December

2010 the amended Anti-Narcotics law came into force in Iran extending the scope of the death

penalty to include additional categories of illegal drugs (for example crystal meth) possession

of which became punishable by death Also around the same time the National Assembly of

Gambia voted to extend the scope of the death penalty by making the possession of more than

250g of heroin or cocaine an offence punishable by death159

Several states allow for the death penalty for crimes of blasphemy and other crimes for

nonviolent expression and association In Pakistan Aasia Bibi a Christian mother of five was

charged with blasphemy and sentenced to death after a trial largely believed to be unfair on 8

November 2010 She is currently on death row The country is also noted for its laws concerning

capital crimes The list includes 27 crimes most of which go beyond the notion of ―most serious

crimes as recommended by the International Covenant on Civil and Political Rights Extra-

marital sex and blasphemy are examples of some capital crimes in the country In December

2007 Pakistan voted against a United Nation General Assembly resolution for a moratorium on

the death penalty The year before however the nation amended its law on rape and adultery

charges which are no longer punishable by death160

As far back as 1989 recommendations have been made as to how to abolish the death penalty

Member states (of the UN) have been urged ―to publish for each category of offence for which

the death penalty is authorized and if possible on an annual basis information about the use of

the death penalty including the number of persons sentenced to death the number of executions

actually carried out the number of persons under sentence of death the number of death

sentences reversed or commuted on appeal and the number of instances in which clemency has

been granted and to include information on the extent to which the safeguards referred to above

are incorporated in national law161

The committee must inspect how far this recommendation

has been adopted and should seek to rectify the weaknesses in the system of gradually

abolishing the death penalty Can a target year be designated by which crimes meriting the death

penalty could be made universal How can countries with non-secular legal systems be brought

into the fold of international law

159

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 160

httpwwwfiacatorgenIMGpdfdppakistan-enpdf 161

httpgraduateinstitutechfacultyclaphamhrdocdocsecosocresolutiondeathpen1989html

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 27: UNHRCFINAL

UNHRC 23 of 44

5 November 2011 Yeqing Ji from Shanghai China will most likely not be able to have children

after she said two forced abortions physically impaired her uterus82

8 September 2011 The Chinese government has renewed Googlelsquos license to allow it to

continue operating its local website in the country83

13 November 2011 Seven months ago

Chinese police detained the countrylsquos most prominent artist Ai Weiwei at the airport and drove

him to a hidden location It was the beginning of what is to be a two-and-a-half month nightmare

for the architect and sculptor who is also a former darling of the Communist Party who later

turned into an outspoken government critic Ai was held on vague charges of economic crimes

was kept in isolation and subjected to Kafka-esque interrogations84

April 19 2011 Amnesty International a 21-year-old monk Phuntsog set himself on fire in an

apparent anti-government protest in March 2011 Instead of putting out the flames Chinese

police beat the young monk creating huge resentment in the monastery85

At least 11 ethnic

Tibetans have been detained for protesting against the event and against government policies

They are at risk of torture and other ill-treatment86

29 May 2011 300 Tibetan monks detained in Kirti monastery by Chinese security forces87

15 September 2011 Chinese Uighurs economic fears

Amid ethnic tensions minority regards modernization plans in Xinjiang as favoring Han Chinese

migrants88

20 November 2011 Another of Chinalsquos minorities the Hui Muslims in Ningxia do not feel

stigmatized

―There is an important reason why Hui and Han Chinese get along with each other Unlike

Muslims of the other ethnic minorities like Uighur Kazakh Kyrgyz and Tajik the Hui Muslims

speak Mandarin just like the Hans89

82

httpabcnewsgocomBusinesswoman-china-forced-abortions-leaves-unable-

childrenstoryid=14880884Tsia7LIk6so 83

httpwwwbbccouknewsbusiness-14832392 84

httpwwwthedailybeastcomnewsweek20111113ai-weiwei-speaks-out-on-his-detentionhtml 85

httphradvorgaggregatorsources10 86

httpwwwamnestyorgenlibraryassetASA170212011end75f7611-be66-4d5a-9391-

c80c43501d56asa170212011enhtml 87

httphumanrightshouseorgArticles16503html 88

httpwwwaljazeeracomvideoasia20110920119158016969449html 89

httpwwwtodayszamancomnews-263322-chinas-hui-muslims-do-not-feel-stigmatizedhtml

UNHRC 24 of 44

Conclusion

The United Nations Human Rights Council at LUMUN 2012 will be looked upon to provide a

framework for the resolution of these issues in a universal context The scope of the issues

should be expanded and applied to countries other than China The committee will have to make

recommendations which have universal application and resolve all aspects of the issue

comprehensively For any queries related to the study guide please do contact either (or both)

the committee directors at the given addresses

UNHRC 25 of 44

Topic Area B Abolishing the Death Penalty

Introduction to the Topic Area

The death penalty is formally defined as the execution of an offender sentenced to death after

conviction by a court of law of a criminal offenselsquo90

The concept of a capital crime is subjective

and states have made use of this practice in response to multiple forms of crime The use of the

death penalty has produced much controversy with regard to its apparent violation of

fundamental human rights as delineated in the Universal Declaration of Human Rights and

subsequent human rights charters and treaties It is asserted that the use of death penalty is in

contravention to the peopleslsquo right to life promised to every individual under Article 3 of the

Declaration91

Moreover Article 2 of the Charter of Fundamental Rights of the European Union

lucidly bars the imposition of death penalty as a form of punishment92

Arguments against the

use of death penalty are also made on the grounds of inhumane methods which are employed to

see out the process Historically multiple methods have been used which include death by

hanging severing of the head lethal injection shooting and electrocution93

94

As a response states have made keen efforts to abolish

the death penalty particularly in the last two decades as

can be interpreted from the graph on the right which

represents the number of states that have abolished the

death penalty Countries belonging to the European

region with the exclusion of Russia and Belarus have

sought to revoke the use of the practice The death

penalty is most commonly seen to be a formal practice

in most of the developing countries The trend is

apparent in Latin America Africa and Asia

96 countries have formally abandoned the use of death penalty 58 countries allow the use95

Other states have abolished the penalty in practice but the laws remain in place for the

imposition of the penalty as a response to certain crimes The imposition of the death penalty has

90

httpwwwbritannicacomEBcheckedtopic93902capital-punishment 91

httpwwwunorgendocumentsudhr 92

httpwwweuroparleuropaeucharterpdftext_enpdf 93

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffle

re-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 94

httpwwwdeathpenaltyinfoorgmethods-execution 95

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf

Figure 1 (Drag to enlarge)

UNHRC 26 of 44

seen a decline over the recent years with a fall in the number of executions that take place

annually It would however be incorrect to assume that the practice is not prevalent or widely in

effect Amnesty International reported that at least 2024 new death sentences were imposed in 67

countries in 2010 Moreover there were at least 17833 people sentenced to death worldwide at

the end of 201096

Again these are minimum figures which are the safest that can be inferred

from the given research There were 527 known executions carried out in 2010 globally97

This

figure however does not include the number of executions that took place in China where

analysts believe that more than a thousand people were put to death in the past year

The statistics represent the number of people executed through capital punishment One way to

formally define capital punishment is to regard it as the state sanctioned killing of an individual

through a judicial process as a punishment for a crime (defined as a capital crime by the state)98

Capital punishment is the most obvious and prevalent manifestation of the death penalty It is

often perceived as a statelsquos right in order to preserve law and order against any individual who

engages in serious crimes that threaten other individuals or the state Those who advocate against

the use of capital punishment label it as a symptom of a culture of violence not a solution to

itlsquo99

The controversy surrounding the topic is based on the legal ethical and moral acceptability

of the statelsquos right to an individuallsquos life The debate entails several social and economic factors

some of which will be reviewed in closer detail in the relevant section of this guide

One of the most striking aspects related to the issue is the imposition of the capital punishment

on juveniles The sentencing of juveniles to death is in clear breach of international law The

morality and validity of such a practice is often called into question and has been put under

relentless scrutiny despite all of which the practice is still carried out in a number of countries

Historically the United States China and Iran have the worst records relating to juvenile death

sentences100

The study guide also includes a separate section for the case of juveniles in which

the legal and social aspects of the problems are detailed

As stated states have made use of the death penalty to punish crimes of varying natures The use

of the death penalty is reserved for only the most seriouslsquo crimes as put forth in international

law101

The notion of a capital crime however is a subjective one states that have doled out

death sentences have defined it differently In certain countries the death penalty is only used to

charge criminals accused of war crimes In other countries the penalty is reserved for crimes like

96

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf 97

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010 98

httpusersrcncommwooddeathpenhtml 99

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 100

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 101

httpwwwunorgdocumentsecosocdocs1995e1995-78htm

UNHRC 27 of 44

murder rape or even robbery States also use the death penalty against individuals who are guilty

of treason The issue however is that many states practicing the death penalty impose the

punishment even when the crimes do not meet the threshold for the aforementioned most

seriouslsquo crimes The ability of states to define what constitutes as a capital crime has led to states

abusing their powers as has been observed in the sentences ordained by military courts

Moreover even the radicals who make the argument of the punishment fitting the crime agree

that in many instances individuals have been executed for softlsquo crimes crimes that were

certainly not tantamount to charges of murder or crimes against humanity The issue of apparent

violations of human rights is further exacerbated in these instances The study guide will discuss

the universal crimes that have resulted in the awarding of the death penalty and examine the

issue further The committee will be expected to discuss the feasibility of drawing up an

international definition of crimes which in isolated instances perhaps may be appropriate for a

sentence like the death penalty

Another pertinent aspect surrounding the debate is that of extrajudicial killings The execution of

a person by state authorities without the authority of a judicial proceeding is termed as an

extrajudicial killing Many states have used extrajudicial killings to establish their authority and

order without having to wade through the legal process By doing so they have deprived scores

of people of their fundamental right to free and fair trials Governments have also employed this

tactic to exercise political aggression and to suppress dissent A particular point of concern is the

fact that some states have made use of these killings even when they have officially revoked the

imposition of the death penalty Extrajudicial killings are carried out persistently in many

countries ndash the list includes countries like Iran Iraq Israel Philippines102

Most recently the

killing of Anwar al-Awlaki and Samir Khan in Yemen by a sanctioned National Security Council

move by the USA was an example of states embarking on such paths to eliminate threats to

national securitylsquo103

102

Multiple citations for each country can be found in the second paragraph article titled Extrajudicial killinglsquo on

Wikipedia 103

httpwwwtelegraphcouknewsworldnewsbarackobama7564581Barack-Obama-orders-killing-of-US-cleric-

Anwar-al-Awlakihtml

UNHRC 28 of 44

Wrongful convictions lead many to believe in the inherent incapacity of the death penalty to

serve justice On September 21 2011 US citizen Troy Davis was executed in Georgia after

which seven of the nine witnesses who testified against him in the case that led to his execution

recounted or retracted their evidences A petition with nearly one million signatures was put

forth to reconsider his case it was rejected On the same day a 17 year old boy was publicly

hanged in Iran for killing a popular athlete his justification based on self-defense was ignored

Also on the same day a Pakistani national was executed in China on grounds of drug trafficking

an offence that does not often result in capital punishment The need for the resolution of this

issue is pressing and the committee needs to deal with all aspects of the problem in a

comprehensive and enduring manner104

Capital Punishment

In 2010 23 countries implemented capital punishment A total of 527 executions (plus the 1000+

carried out in China alone) were known to have taken place with Iran Yemen USA and North

Korea meting out a significant number of sentences105

The figure is lower than the records

computed for years past There are more states which are now abolitionist either in law or in

practice with regard to the imposition of the punishment Gabon was officially the last country

to rescind the practice while bills calling for an end to capital punishment have been presented

to parliaments in Lebanon Mali Mongolia and South Korea106

Renewed efforts are

104

httpwwwamnestyorgennews-and-updatesus-executes-death-row-prisoner-troy-davis-2011-09-21 105

httpwwwguardiancouknewsdatablog2011mar29death-penalty-countries-world 106

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010

UNHRC 29 of 44

simultaneously being made on the international front to implement laws against capital

punishment A third resolution establishing a moratorium on the use of death penalty passed the

UN General Assembly on December 21 2010107

Despite the increasing momentum towards an eventual elimination of the practice the number of

executions taking place annually is a cause of major concern Advocates of the death penalty

assert that the practice is an effective means of deterring crime in society Public executions are

often held in Iran Afghanistan and Palestine for example to demonstrate the fate awaiting

those who commit similar crimes108

Arguments are made on the grounds of justice that it is

proper and fair to take an eye for an eye and a life for a life and that some individuals deserve

it for the crimes they commit

Those opposing the practice question the morality of an action sanctioned by the state which

endorses deprivation of the right to life a fundamental human right under the Universal

Declaration of Human Rights109

There are inescapable flaws within legal systems which are

aggravated by discrimination prosecutorial misconduct and inadequate legal representation

Moreover the risk of executing the innocent can never be eliminated110

An alternative is

presented in the form of imprisonment for life without parole which results in a parallel debate

is imprisonment for life a viable surrogate to the practice of death penalty A thread from this

debate also relates to the economic feasibility of carrying out a death sentence as opposed to the

feasibility of imprisonment for life

Deterrence

Capital punishment is often propagated as an adequate approach in the deterrence and prevention

of crime The logic is that if murderers are sentenced to death potential murderers will think

twice before killing for fear of losing their own life The deterrence theory presumes that the

once the punishment for a certain crime is established the criminal by committing the crime

voluntarily assumes the risk of receiving the prescribed punishment for the crime Only when the

most severe punishment has been set will there be a possibility of an individual evaluating their

actions in light of the consequences111

107

httpwwwundemocracycomA-RES-62-149pdf 108

httpwwwamnestyorgennews-and-updatessharp-rise-public-executions-iran-executes-first-juvenile-

offenders-2011-2011-04-27 109

wwwunorgendocumentsudhr 110

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 111

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 30 of 44

The death penalty it is asserted ensures that convicted criminals do not offend again moreover

it is deemed to be a just penalty for atrocious crimes It is further alleged that many criminals

who are set free even after lengthy sentences regress and go on to commit heinous crimes

Therefore there should never be the possibility of a release clause112

The deterrence theory is modeled on the grounds of human psychology logic and rationale As a

professor of jurisprudence Ernest van den Haag PhD wrote ―Common sense lately bolstered

by statistics tells us that the death penalty will deter murder if anything can People fear nothing

more than death Therefore nothing will deter a criminal more than the fear of death These

statements were further validated by a US Supreme Court Justice who said on record that

Prima facie the penalty of death is likely to have a stronger effect as a deterrent to normal

human beings than any other form of punishmentlsquo113

Numerous studies have been conducted on

the subject with varying results One of the most established studies was conducted in USA

using a panel data set of over 3000 counties from 1977 to 1996 which concluded that on

average one death sentence resulted in 18 fewer murders114

Delegates will be expected to be

familiar with other similar studies

These studies are commonly refuted as not crediblelsquo by opponents of the capital punishment

who also deny the correlation between crime and death penalty as a fabricated relationship which

cannot be empirically established115116

A study of the relationship between capital punishment

and the incidence of murder was conducted for the UN in 1988 and updated in 2002 The

conclusion was ―The investigation has not provided scientific proof that executions have more

deterrent effect than life imprisonment It is unlikely that such evidence will ever come

Deterrence hypothesis finds no support in the survey117

Another counter-argument asserts that crime is still a persistent feature of the societies that

continue to award the death penalty while many of the abolitionist states enjoy low crime rates

This can be evidenced by comparing the crime rate in USA or Pakistan with that of Canada or

some European state In Canada for example the homicide rate per 100000 fell from a peak of

309 in 1975 the year before the abolition of the death penalty for murder to 241 in 1980 and

in 2003 27 years after abolition the homicide rate was 173 per 100000 44 per cent lower than

in 1975118

112

httpwwwdeathpenaltyinfoorgfacts-about-deterrence-and-death-penalty 113

httpdeathpenaltyproconorgviewresourcephpresourceID=002000 114

httpdeathpenaltyproconorgsourcefilesThe20Deterrent20Effect20of20Capital20Punishmentpdf ndash

Delegates should carefully examine certain parts of this document to establish the credibility of the assertions made

They should also invest in trying to locate studies that refute the assertions made in this and similar studies 115

httpwwwdeathpenaltyinfoorglaw-enforcement-views-deterrencelawenforcement 116

httpwwwdeathpenaltyinfoorgDonohueDeterpdf 117

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 118

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml

UNHRC 31 of 44

The lack of evidence on the production of a unique deterrent effect points to the danger of

relying on the deterrence hypothesis as a basis for public policy on the death penalty

Retribution amp Morality

An important terminology that delegates need to familiarize themselves with is that of

―retributivism119

It is defined as ―a policy of criminal justice that sponsors the punishment of

criminals in retribution for the harm they have inflicted120

Criminals deserve to be punished in

proportion to the gravity of their crime regardless of whether the victim or anyone else desires

it we may all deeply regret having to carry out the punishment but consider it warrantedlsquo is

what many say in defense of the theory121

The need for the establishment of a visibly just state arises from the potential risks of not having

one As has been visible in many developing countries with shaky legal systems when criminals

are not adequately punished for their unlawful behavior the public takes the law into its own

hands and deals out vigilante justice It is asserted that retributivism is essential for a functioning

society where individuals respect the supremacy of law

The concept of retribution in society is also grounded in religious beliefs The concept of an eye

for an eye has been a part of all three Abrahamic traditions However in the modern world it is

Islamic nations that still retain the practice based on these grounds Similar traditions can be

found in Hinduism Christianity and Buddhism as well as other religions in different parts of the

world In many non-secular countries the constitutions and state laws are derived from religious

doctrines

Opponents dismiss this aspect of the argument as being emotionally charged with little rational

logic to support the contention They claim that the establishment of capital punishment gives

birth to a culture of violence endorsed by the state It perpetuates the cycle of aggression and

brutality something which the state should be actively inhibiting not endorsing

Wrongful Convictions

The death penalty carries with it the danger of wrongfully convicting an innocent person for

crimes he did not commit There is the potential for capital punishment to evolve into sheer

miscarriage of justice as in certain circumstances states are often seen to rush the trials and

convict the accused hastily This practice takes foremost apparently in military courts often in

119

Cavadino M amp Dignan J (1997) The Penal System An Introduction (2nd ed) p 39 London Sage 120

httpdictionaryreferencecombrowseretributivism 121

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 32 of 44

the developing or lesser-developed countries where the system of law is not properly established

It is not however exclusive to these countries Examples can be drawn from countries like

Philippines Thailand Iran and Palestine to name just a few where executions are carried out at

alarming pace removing the possibility of reviews

On 15 August 2004 Atefah Rajabi Sahaaleh was hanged in a public square in the Iranian city of

Neka Her death sentence was imposed for adultery and crimes against chastity122123

Atefah

was executed a week after the trial was run Following the execution the Judge for the case was

arrested for investigation by the Intelligence Ministry The media reported that in addition to the

confession of his rape of Atefeh Judge Rezai who served as judge jury and executioner also

confessed to torturing her during interrogations to extract names of others she had relations with

No transcripts from court proceedings were recorded The State alleged that Atefah was 22 at the

time of her execution A witness later claimed The judge just looked at her body because of

the developed physique and declared her as 22124

ndash her birth certificate revealed she was born

in 1988 Furthermore Atefah did not have access to a proper defense where she could contest

charges leveled against her This is one example of many such cases of miscarriage of justice

Something that recurs in these cases is the failure of the police or prosecuting authorities to

prevent the use of unreliable witnesses the misuse of evidence or confessions and the provision

of inadequate defense representation The advent of DNA profiling and the use of it as positive

evidence in criminal cases has resulted in the exoneration of multiple death row inmates on

grounds of forensic evidence or lack thereof Since 1973 138 people have been released from

death row in the United States after it was proven that they were innocent125

In 2009 Paul

House was cleared of murder and exonerated in Tennessee USA after having served 22 years

on death row His innocence was proclaimed in light of substantial additional DNA testing and

further investigationlsquo 126

Amnesty International has noted examples of wrongful convictions from elsewhere as well

including Jamaica Japan China Nigeria and Tanzania127

Paul G Cassell a former law clerk to

the Chief Justice of USA stated the mistaken release of guilty murderers should be of far greater

concern than the speculative and heretofore nonexistent risk of the mistaken execution of an

innocent personlsquo highlighting the case made by those who advocate the death penalty even in

light of wrongful convictions128

122

httpwwwcosmolearningcomdocumentariesexecution-of-a-teenage-girl1 123

httpnewsbbccouk2hi5217424stm 124

httpnewsbbccouk2hi5217424stm 125

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 126

httparticlescnncom2009-05-13justicetennesseeexonerated_1_death-row-inmate-dna-evidence-house-

arrest_s=PMCRIME 127

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 128

httpdeathpenaltycurriculumorgstudentcaboutargumentstestimony3bhtm

UNHRC 33 of 44

Alternative to Death Penalty

All abolitionist states have reverted to the practice of sentencing criminals to life imprisonment

(some without parole) which is also termed as death by incarceration Widely regarded as a more

humane course of action life imprisonment is also alleged to be a more economical practice

While ensuring public safety by keeping criminals away from society this system also saves the

lives of innocent people who have been falsely or wrongfully convicted The setup inhibits and

curbs the cycle of violence while retaining the deterrence factor it is strongly asserted

Advocates for the death penalty are averse towards life imprisonment for a number of reasons

They cite the unreliability of the system as one of the flaws which impedes the possibility of

such a sentence being successful A certain James Moore serves as a valid example in this case

In 1962 James Moore raped and strangled 14-year-old Pamela Moss The victimlsquos parents opted

out of capital punishment for Moore and he was instead sentenced to life in prison without

parole Twenty years later a change in sentencing laws in 1982 renders James Moore eligible for

parole every two years129130

Kenneth McDuff is another example McDuff was convicted and sentenced to life imprisonment

Years later due to the issue of overcrowding in prisons McDuff was released following which

he killed eight more people McDufflsquos example is of an individual from a developed country

with an established legal system in place131

Overcrowding is a feature of prisons in developing

or lesser developed countries In many such states criminals have also been known to easily

break out from penitentiaries

The economic aspect of the debate is murky at best There is a lack of empirical data on the

subject which is why the arguments of both these sides cannot be settled beyond doubt

Advocates of capital punishment insist that the overall costs of the practice are far lesser than the

costs of housing an inmate for a lifetime132

They also suggest that the life imprisonment allows

criminals to conceive new habeas corpus petitions which on legal grounds cannot be rejected

automatically resulting in more trials

On the other hand substantial arguments are made which stress that the cost of legal proceedings

in capital cases is in truth more than that of other cases States and nations spend a significant

portion of the taxpayerlsquos money in meting out such punishments133

Delegates when addressing

this portion of the debate will need to be aware of the financial aspects of the issue as it forms

for many states an important part of whether capital punishment should be revoked or

not

129

httpwesleylowecomcphtmldeter 130

httpwwwnytimescomkeywordparole 131

httpwesleylowecomcphtmldeter 132

Ibid ndash view section titled Capital Punishment and its costslsquo 133

httpwwwamnestyusaorgour-workissuesdeath-penaltyus-death-penalty-factsdeath-penalty-cost

UNHRC 34 of 44

Imposition of Death Penalty on Juveniles

The prohibition on the death penalty for crimes committed by juvenile offendersmdashpersons under

age 18 at the time of the offensemdashis well established in international law specifically in the

Convention on the Rights of Child

ldquoNo child shall be subjected to torture or other cruel inhuman or degrading treatment or

punishment Neither capital punishment nor life imprisonment without possibility of release shall

be imposed for offences committed by persons below eighteen years of agerdquo134

- Article 37(a) Convention on the Rights of Child

ldquoSentence of death shall not be imposed for crimes committed by persons below eighteen years

of age and shall not be carried out on pregnant womenrdquo135

- Article 6(5) International Covenant on Civil and Political Rights

The treaties are a unanimously agreed set of non-negotiable standards and obligations By

acceding to the treaties and ratifying them governments commit to protecting and ensuring

childrens rights and to holding themselves accountable for this commitment before the

international community

Even though the practice of capital punishment on juveniles is relatively rare however in clear

contravention of international law nine countries have executed offenders who were juveniles at

the time of their crimes between 1990 and 2005136

These countries include the Peoples Republic

of China (PRC) the Democratic Republic of the Congo Iran Nigeria Pakistan Saudi Arabia

Sudan the United States and Yemen137

The USA has since moved to implement a ban on capital

punishment for juveniles However in most other countries of the preceding list the practice is

still enshrined in the judicial system Iranlsquos record in particular has been abominable over the last

decade It has carried out 39 executions of persons under the age of 18 since 2005 Presently

over a hundred individuals are placed on death row for crimes committed as juveniles The

executions of Mahmoud Asgari Ayaz Marhoni and Makwan Moloudzadeh became international

symbols of Irans child capital punishment and the judicial system that hands down such

134

httpwww2ohchrorgenglishlawcrchtm 135

httpwww2ohchrorgenglishlawccprhtm 136

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf - This document by the Human Rights Watch

called The Last Holdoutslsquo is a good summary of juvenile executions and should be reviewed 137

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 - Contains a list with

statistics and details of countries which have allowed the imposition of death sentence to juveniles

UNHRC 35 of 44

sentences138139140

Saudi Arabia and China too have questionable records that need to be

scrutinized further

While regional treaties and charters usually substantiate international law the Arab Human

Rights Charter of 2004 is unique among regional and international treaties in that the ban on the

juvenile death penalty in it is not absolute but merely optional141

Furthermore national laws in states that observe such a practice are in violation of

international legally-binding charters In Iran and Saudi Arabia laws usually treat a child the

same way as an adult criminal offender would be treated Article 10(3) of the International

Covenant on Civil and Political Rights emphasizes the need for demarcation between the

handling of children and that of adults in stating ―Juvenile offenders shall be segregated from

adults and be accorded treatment appropriate to their age and legal status142

The definition of a child in these Muslim states is unclear as adulthood is associated with

attainment of puberty which is a relative concept The Committee on the Rights of the Child in

January 2005 censured the Saudi government for its practice of imposing the death penalty on

juveniles terming it a serious violation of the fundamental rights The committee was deeply

alarmed over the discretionary power judges hold to treat juveniles as adults as was stated in

the committeelsquos report Iran too was strongly condemned following the release of an

international report highlighting the dire situation in Iran by the International for Human Rights 143

138

httpwwwfoxnewscomstory0293329798200html 139

httpnewsbbccouk2himiddle_east7130380stm 140

httpenwikipediaorgwikiCapital_punishmentIran 141

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 142

httpwww2ohchrorgenglishlawccprhtm 143

httpwwwfidhorgIMGpdfRapport_Iran_finalpdf

UNHRC 36 of 44

On August 19 2008 Iranian authorities executed Seyyed Reza Hejazi at Isfahan Central Prison

for his role in a murder committed in 2003 when he was 15 Hejazi was tried as an adult by

Branch 106 of the Isfahan General Court even if he did not qualify as one under international

stipulations and sentenced to death on November 14 2005144

In Saudi Arabia Mu`id bin

Husayn bin Abu al-Qasim bin `Ali Hakami was executed on July 10 2007 for a murder he

allegedly committed three years earlier when he was 13 years old145

The judges in these states

because of the implementation of the Sharialsquo law have a large amount of discretion with regard

to their rulings This discretion is often abused in the interrogation and judicial proceedings In

Pakistan authorities hanged Mutaber Khan in Peshawar Central Prison on June 13 2006 on

charges of murder of five people The fact that he was held in the juvenile wing of Peshawar

Central prison and the evidence presented by the accused confirming that his age was below 18

at the time of the killings were not taken into account during the trials and Mutaber was charged

as an adult in the case146

While the above does not cover exhaustively the practice of capitally punishing juveniles the

committee is expected to be well read on the matter The committee will be required to devise

ways to strictly apply the existing international law on the subject to curtail further deaths of

juveniles by states A series of recommendations on better implementation of international

covenants will be expected from the committee Delegates at UNHRC will also have to

familiarize themselves with the stipulations in the national laws of countries practicing juvenile

death penalties (Iran Saudi Arabia Pakistan Nigeria Sudan Yemen and UAE among others) to

discuss how these states are constitutionally able to bend international law and mete out the

illegal punishments

144

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 145

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 146

See FIDH and Human Rights Commission of Pakistan ―Slow march to the gallows and ―Condemned Prisoner

Executed Dawn Newspaper Karachi June 14 2005 httpwwwdawncom20060614nat16htm

UNHRC 37 of 44

Universality of Laws Incurring the Death Penalty

In countries which have not abolished the death penalty capital punishment may be imposed

only for the most serious crimes it being understood that their scope should not go beyond

intentional crimes with lethal or other extremely grave consequences

- Safeguards guaranteeing protection of the rights of those facing the death penalty147

Laws incurring the death penalty or capital crimes have certain uniformity the world over This

is of course barring states that are religiously affiliated and whose law systems are not secular

in nature The list of capital crimes for those states with non-secular legal systems is slightly

different The Human Rights Commission had decided that the imposition in the State party of

the death penalty for offences which cannot be characterized as the most serious including

apostasy committing a third homosexual act illicit sex embezzlement by officials and theft by

force are incompatible with Article 6 of the Covenant Economic offences including

embezzlement drug related offences political offences and robbery were also referred to148

The reason why looking into capital crimes and trying to garner a global impression of them is

important is that the death penalty can only realistically be abolished in a piecemeal way This

process will entail shortening the list of capital crimes The UN formally notes that ―in order

fully to guarantee the right to life provided for in article 3 of the Universal Declaration of

Human Rights the main objective to be pursued is that of progressively restricting the number of

offences for which capital punishment may be imposed with a view to the desirability of

abolishing this punishment in all countries149

The first established death penalty laws date as far back as the Eighteenth Century BC in the

Code of King Hammaurabi of Babylon which codified the death penalty for 25 different crimes

By the 1700s 222 crimes were punishable by death in Britain including stealing cutting down a

tree and robbing a rabbit warren In the 19th

century the death penalty was eliminated for over

100 of the 222 crimes punishable by death 150

In modern times the UN Special Rapporteur on

extrajudicial summary or arbitrary executions has stated that the death penalty should be

eliminated for economic crimes and drug-related offences and that the restrictions to its use

―exclude the possibility of death sentences for so-called victimless offences ndash including acts of

treason espionage and other vaguely defined acts usually described as crimes against the Statelsquo

or disloyaltylsquo and ―actions primarily related to prevailing moral values such as adultery and

prostitution as well as matters of sexual orientation151

147

httpwww2ohchrorgenglishlawpdfprotectionpdf 148

httpwwwunhchrchtbsdocnsf0bc310a747155dff88025655300537faeOpendocument 149

General Assembly resolution 2857 httpwwwunodcorgpdfcompendiumcompendium_2006_part_01_05pdf 150

httpdeathpenaltycurriculumorgstudentcabouthistoryhistoryPDF 151

httpswwwabofimedia24259report10pdf

UNHRC 38 of 44

Contrary to the made recommendations even political dissent warrants a death sentence in

several countries most notably in China and Iran In 2010 nearly 20 Kurdish people were

executed for political offences in Iran The country is known for keeping dissent especially from

the Kurds suppressed Most are executed on the grounds of moharebeh or enmity against God

Moreover challenging the power of the Ayatollah is also punishable by death These charges are

neither explicit nor in line with international guidelines over what crimes are punishable

capitally In Iran judges must handle such cases carefully as Iranian law provides for only one

punishment if an individual is found to be guilty of treason Libya too thwarts political dissent

with firm laws in place for punishing by death those who illegally form groups organizations or

associations against the state152

Saudi Arabia too is worth note for its vaguely phrased laws governing capital punishment

Intentional murder and crimes that spread ―mischief in the land (Fasad fil-ardh) merit death In

2010 the government announced that it had executed 26 people all by beheading Crimes that

―spread mischief include witchcraft and sorcery153

How is one convicted of witchcraft in the

21st century What can the international community do when regarding countries such as these

Treason arguably along with murder is the capital crime that has yet to be phased out by many

countries In some such as Brazil treason during warfare is the only crime for which a person

can be sentenced to death In the Gaza Strip under Hamas any sort of cooperation with Israeli

forces during military actions is also punishable by death In others including Algeria Bahrain

Iran and Malaysia treason is punishable by death in all circumstances The United States too has

federal laws governing treason under which traitors ―shall suffer death154

Child sex abuse is another crime that is widely held to merit the death penalty In Russia for

example according to the Russian Public Opinion Research Center an overwhelming majority

consider the death penalty to be an acceptable punishment especially in relation to molestation

155 In 2009 however Russias Constitutional Court effectively abolished the death penalty by

extending indefinitely a 13-year-old moratorium on capital punishment156

Indonesia has some of the strictest penalties for drug related crimes in the world Roughly half of

those on death row are incriminated with drug-related charges157

In 2008 though the most high

profile executions were of terrorists Three of those found responsible for the 2002 Bali

bombings were executed by shooting158

Generally speaking however a significant proportion of

152

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 153

httpwwwstategovgdrlrlshrrpt2010nea154472htm 154

httpdeathpenaltyproconorgviewresourcephpresourceID=1172 155

httpenrianrutrenddeath_penalty 156

httpwwwreuterscomarticle20091119idUSLJ330478 157

httpwwwnytimescom20080711worldasia11iht-indo114421132html 158

httpnewsbbccouk2hiasia-pacific7718246stm

UNHRC 39 of 44

the executions or death sentences recorded (in 2010) in China Egypt Indonesia Iran Laos

Libya Thailand United Arab Emirates and Yemen were for drug-related offences In December

2010 the amended Anti-Narcotics law came into force in Iran extending the scope of the death

penalty to include additional categories of illegal drugs (for example crystal meth) possession

of which became punishable by death Also around the same time the National Assembly of

Gambia voted to extend the scope of the death penalty by making the possession of more than

250g of heroin or cocaine an offence punishable by death159

Several states allow for the death penalty for crimes of blasphemy and other crimes for

nonviolent expression and association In Pakistan Aasia Bibi a Christian mother of five was

charged with blasphemy and sentenced to death after a trial largely believed to be unfair on 8

November 2010 She is currently on death row The country is also noted for its laws concerning

capital crimes The list includes 27 crimes most of which go beyond the notion of ―most serious

crimes as recommended by the International Covenant on Civil and Political Rights Extra-

marital sex and blasphemy are examples of some capital crimes in the country In December

2007 Pakistan voted against a United Nation General Assembly resolution for a moratorium on

the death penalty The year before however the nation amended its law on rape and adultery

charges which are no longer punishable by death160

As far back as 1989 recommendations have been made as to how to abolish the death penalty

Member states (of the UN) have been urged ―to publish for each category of offence for which

the death penalty is authorized and if possible on an annual basis information about the use of

the death penalty including the number of persons sentenced to death the number of executions

actually carried out the number of persons under sentence of death the number of death

sentences reversed or commuted on appeal and the number of instances in which clemency has

been granted and to include information on the extent to which the safeguards referred to above

are incorporated in national law161

The committee must inspect how far this recommendation

has been adopted and should seek to rectify the weaknesses in the system of gradually

abolishing the death penalty Can a target year be designated by which crimes meriting the death

penalty could be made universal How can countries with non-secular legal systems be brought

into the fold of international law

159

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 160

httpwwwfiacatorgenIMGpdfdppakistan-enpdf 161

httpgraduateinstitutechfacultyclaphamhrdocdocsecosocresolutiondeathpen1989html

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 28: UNHRCFINAL

UNHRC 24 of 44

Conclusion

The United Nations Human Rights Council at LUMUN 2012 will be looked upon to provide a

framework for the resolution of these issues in a universal context The scope of the issues

should be expanded and applied to countries other than China The committee will have to make

recommendations which have universal application and resolve all aspects of the issue

comprehensively For any queries related to the study guide please do contact either (or both)

the committee directors at the given addresses

UNHRC 25 of 44

Topic Area B Abolishing the Death Penalty

Introduction to the Topic Area

The death penalty is formally defined as the execution of an offender sentenced to death after

conviction by a court of law of a criminal offenselsquo90

The concept of a capital crime is subjective

and states have made use of this practice in response to multiple forms of crime The use of the

death penalty has produced much controversy with regard to its apparent violation of

fundamental human rights as delineated in the Universal Declaration of Human Rights and

subsequent human rights charters and treaties It is asserted that the use of death penalty is in

contravention to the peopleslsquo right to life promised to every individual under Article 3 of the

Declaration91

Moreover Article 2 of the Charter of Fundamental Rights of the European Union

lucidly bars the imposition of death penalty as a form of punishment92

Arguments against the

use of death penalty are also made on the grounds of inhumane methods which are employed to

see out the process Historically multiple methods have been used which include death by

hanging severing of the head lethal injection shooting and electrocution93

94

As a response states have made keen efforts to abolish

the death penalty particularly in the last two decades as

can be interpreted from the graph on the right which

represents the number of states that have abolished the

death penalty Countries belonging to the European

region with the exclusion of Russia and Belarus have

sought to revoke the use of the practice The death

penalty is most commonly seen to be a formal practice

in most of the developing countries The trend is

apparent in Latin America Africa and Asia

96 countries have formally abandoned the use of death penalty 58 countries allow the use95

Other states have abolished the penalty in practice but the laws remain in place for the

imposition of the penalty as a response to certain crimes The imposition of the death penalty has

90

httpwwwbritannicacomEBcheckedtopic93902capital-punishment 91

httpwwwunorgendocumentsudhr 92

httpwwweuroparleuropaeucharterpdftext_enpdf 93

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffle

re-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 94

httpwwwdeathpenaltyinfoorgmethods-execution 95

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf

Figure 1 (Drag to enlarge)

UNHRC 26 of 44

seen a decline over the recent years with a fall in the number of executions that take place

annually It would however be incorrect to assume that the practice is not prevalent or widely in

effect Amnesty International reported that at least 2024 new death sentences were imposed in 67

countries in 2010 Moreover there were at least 17833 people sentenced to death worldwide at

the end of 201096

Again these are minimum figures which are the safest that can be inferred

from the given research There were 527 known executions carried out in 2010 globally97

This

figure however does not include the number of executions that took place in China where

analysts believe that more than a thousand people were put to death in the past year

The statistics represent the number of people executed through capital punishment One way to

formally define capital punishment is to regard it as the state sanctioned killing of an individual

through a judicial process as a punishment for a crime (defined as a capital crime by the state)98

Capital punishment is the most obvious and prevalent manifestation of the death penalty It is

often perceived as a statelsquos right in order to preserve law and order against any individual who

engages in serious crimes that threaten other individuals or the state Those who advocate against

the use of capital punishment label it as a symptom of a culture of violence not a solution to

itlsquo99

The controversy surrounding the topic is based on the legal ethical and moral acceptability

of the statelsquos right to an individuallsquos life The debate entails several social and economic factors

some of which will be reviewed in closer detail in the relevant section of this guide

One of the most striking aspects related to the issue is the imposition of the capital punishment

on juveniles The sentencing of juveniles to death is in clear breach of international law The

morality and validity of such a practice is often called into question and has been put under

relentless scrutiny despite all of which the practice is still carried out in a number of countries

Historically the United States China and Iran have the worst records relating to juvenile death

sentences100

The study guide also includes a separate section for the case of juveniles in which

the legal and social aspects of the problems are detailed

As stated states have made use of the death penalty to punish crimes of varying natures The use

of the death penalty is reserved for only the most seriouslsquo crimes as put forth in international

law101

The notion of a capital crime however is a subjective one states that have doled out

death sentences have defined it differently In certain countries the death penalty is only used to

charge criminals accused of war crimes In other countries the penalty is reserved for crimes like

96

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf 97

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010 98

httpusersrcncommwooddeathpenhtml 99

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 100

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 101

httpwwwunorgdocumentsecosocdocs1995e1995-78htm

UNHRC 27 of 44

murder rape or even robbery States also use the death penalty against individuals who are guilty

of treason The issue however is that many states practicing the death penalty impose the

punishment even when the crimes do not meet the threshold for the aforementioned most

seriouslsquo crimes The ability of states to define what constitutes as a capital crime has led to states

abusing their powers as has been observed in the sentences ordained by military courts

Moreover even the radicals who make the argument of the punishment fitting the crime agree

that in many instances individuals have been executed for softlsquo crimes crimes that were

certainly not tantamount to charges of murder or crimes against humanity The issue of apparent

violations of human rights is further exacerbated in these instances The study guide will discuss

the universal crimes that have resulted in the awarding of the death penalty and examine the

issue further The committee will be expected to discuss the feasibility of drawing up an

international definition of crimes which in isolated instances perhaps may be appropriate for a

sentence like the death penalty

Another pertinent aspect surrounding the debate is that of extrajudicial killings The execution of

a person by state authorities without the authority of a judicial proceeding is termed as an

extrajudicial killing Many states have used extrajudicial killings to establish their authority and

order without having to wade through the legal process By doing so they have deprived scores

of people of their fundamental right to free and fair trials Governments have also employed this

tactic to exercise political aggression and to suppress dissent A particular point of concern is the

fact that some states have made use of these killings even when they have officially revoked the

imposition of the death penalty Extrajudicial killings are carried out persistently in many

countries ndash the list includes countries like Iran Iraq Israel Philippines102

Most recently the

killing of Anwar al-Awlaki and Samir Khan in Yemen by a sanctioned National Security Council

move by the USA was an example of states embarking on such paths to eliminate threats to

national securitylsquo103

102

Multiple citations for each country can be found in the second paragraph article titled Extrajudicial killinglsquo on

Wikipedia 103

httpwwwtelegraphcouknewsworldnewsbarackobama7564581Barack-Obama-orders-killing-of-US-cleric-

Anwar-al-Awlakihtml

UNHRC 28 of 44

Wrongful convictions lead many to believe in the inherent incapacity of the death penalty to

serve justice On September 21 2011 US citizen Troy Davis was executed in Georgia after

which seven of the nine witnesses who testified against him in the case that led to his execution

recounted or retracted their evidences A petition with nearly one million signatures was put

forth to reconsider his case it was rejected On the same day a 17 year old boy was publicly

hanged in Iran for killing a popular athlete his justification based on self-defense was ignored

Also on the same day a Pakistani national was executed in China on grounds of drug trafficking

an offence that does not often result in capital punishment The need for the resolution of this

issue is pressing and the committee needs to deal with all aspects of the problem in a

comprehensive and enduring manner104

Capital Punishment

In 2010 23 countries implemented capital punishment A total of 527 executions (plus the 1000+

carried out in China alone) were known to have taken place with Iran Yemen USA and North

Korea meting out a significant number of sentences105

The figure is lower than the records

computed for years past There are more states which are now abolitionist either in law or in

practice with regard to the imposition of the punishment Gabon was officially the last country

to rescind the practice while bills calling for an end to capital punishment have been presented

to parliaments in Lebanon Mali Mongolia and South Korea106

Renewed efforts are

104

httpwwwamnestyorgennews-and-updatesus-executes-death-row-prisoner-troy-davis-2011-09-21 105

httpwwwguardiancouknewsdatablog2011mar29death-penalty-countries-world 106

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010

UNHRC 29 of 44

simultaneously being made on the international front to implement laws against capital

punishment A third resolution establishing a moratorium on the use of death penalty passed the

UN General Assembly on December 21 2010107

Despite the increasing momentum towards an eventual elimination of the practice the number of

executions taking place annually is a cause of major concern Advocates of the death penalty

assert that the practice is an effective means of deterring crime in society Public executions are

often held in Iran Afghanistan and Palestine for example to demonstrate the fate awaiting

those who commit similar crimes108

Arguments are made on the grounds of justice that it is

proper and fair to take an eye for an eye and a life for a life and that some individuals deserve

it for the crimes they commit

Those opposing the practice question the morality of an action sanctioned by the state which

endorses deprivation of the right to life a fundamental human right under the Universal

Declaration of Human Rights109

There are inescapable flaws within legal systems which are

aggravated by discrimination prosecutorial misconduct and inadequate legal representation

Moreover the risk of executing the innocent can never be eliminated110

An alternative is

presented in the form of imprisonment for life without parole which results in a parallel debate

is imprisonment for life a viable surrogate to the practice of death penalty A thread from this

debate also relates to the economic feasibility of carrying out a death sentence as opposed to the

feasibility of imprisonment for life

Deterrence

Capital punishment is often propagated as an adequate approach in the deterrence and prevention

of crime The logic is that if murderers are sentenced to death potential murderers will think

twice before killing for fear of losing their own life The deterrence theory presumes that the

once the punishment for a certain crime is established the criminal by committing the crime

voluntarily assumes the risk of receiving the prescribed punishment for the crime Only when the

most severe punishment has been set will there be a possibility of an individual evaluating their

actions in light of the consequences111

107

httpwwwundemocracycomA-RES-62-149pdf 108

httpwwwamnestyorgennews-and-updatessharp-rise-public-executions-iran-executes-first-juvenile-

offenders-2011-2011-04-27 109

wwwunorgendocumentsudhr 110

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 111

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 30 of 44

The death penalty it is asserted ensures that convicted criminals do not offend again moreover

it is deemed to be a just penalty for atrocious crimes It is further alleged that many criminals

who are set free even after lengthy sentences regress and go on to commit heinous crimes

Therefore there should never be the possibility of a release clause112

The deterrence theory is modeled on the grounds of human psychology logic and rationale As a

professor of jurisprudence Ernest van den Haag PhD wrote ―Common sense lately bolstered

by statistics tells us that the death penalty will deter murder if anything can People fear nothing

more than death Therefore nothing will deter a criminal more than the fear of death These

statements were further validated by a US Supreme Court Justice who said on record that

Prima facie the penalty of death is likely to have a stronger effect as a deterrent to normal

human beings than any other form of punishmentlsquo113

Numerous studies have been conducted on

the subject with varying results One of the most established studies was conducted in USA

using a panel data set of over 3000 counties from 1977 to 1996 which concluded that on

average one death sentence resulted in 18 fewer murders114

Delegates will be expected to be

familiar with other similar studies

These studies are commonly refuted as not crediblelsquo by opponents of the capital punishment

who also deny the correlation between crime and death penalty as a fabricated relationship which

cannot be empirically established115116

A study of the relationship between capital punishment

and the incidence of murder was conducted for the UN in 1988 and updated in 2002 The

conclusion was ―The investigation has not provided scientific proof that executions have more

deterrent effect than life imprisonment It is unlikely that such evidence will ever come

Deterrence hypothesis finds no support in the survey117

Another counter-argument asserts that crime is still a persistent feature of the societies that

continue to award the death penalty while many of the abolitionist states enjoy low crime rates

This can be evidenced by comparing the crime rate in USA or Pakistan with that of Canada or

some European state In Canada for example the homicide rate per 100000 fell from a peak of

309 in 1975 the year before the abolition of the death penalty for murder to 241 in 1980 and

in 2003 27 years after abolition the homicide rate was 173 per 100000 44 per cent lower than

in 1975118

112

httpwwwdeathpenaltyinfoorgfacts-about-deterrence-and-death-penalty 113

httpdeathpenaltyproconorgviewresourcephpresourceID=002000 114

httpdeathpenaltyproconorgsourcefilesThe20Deterrent20Effect20of20Capital20Punishmentpdf ndash

Delegates should carefully examine certain parts of this document to establish the credibility of the assertions made

They should also invest in trying to locate studies that refute the assertions made in this and similar studies 115

httpwwwdeathpenaltyinfoorglaw-enforcement-views-deterrencelawenforcement 116

httpwwwdeathpenaltyinfoorgDonohueDeterpdf 117

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 118

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml

UNHRC 31 of 44

The lack of evidence on the production of a unique deterrent effect points to the danger of

relying on the deterrence hypothesis as a basis for public policy on the death penalty

Retribution amp Morality

An important terminology that delegates need to familiarize themselves with is that of

―retributivism119

It is defined as ―a policy of criminal justice that sponsors the punishment of

criminals in retribution for the harm they have inflicted120

Criminals deserve to be punished in

proportion to the gravity of their crime regardless of whether the victim or anyone else desires

it we may all deeply regret having to carry out the punishment but consider it warrantedlsquo is

what many say in defense of the theory121

The need for the establishment of a visibly just state arises from the potential risks of not having

one As has been visible in many developing countries with shaky legal systems when criminals

are not adequately punished for their unlawful behavior the public takes the law into its own

hands and deals out vigilante justice It is asserted that retributivism is essential for a functioning

society where individuals respect the supremacy of law

The concept of retribution in society is also grounded in religious beliefs The concept of an eye

for an eye has been a part of all three Abrahamic traditions However in the modern world it is

Islamic nations that still retain the practice based on these grounds Similar traditions can be

found in Hinduism Christianity and Buddhism as well as other religions in different parts of the

world In many non-secular countries the constitutions and state laws are derived from religious

doctrines

Opponents dismiss this aspect of the argument as being emotionally charged with little rational

logic to support the contention They claim that the establishment of capital punishment gives

birth to a culture of violence endorsed by the state It perpetuates the cycle of aggression and

brutality something which the state should be actively inhibiting not endorsing

Wrongful Convictions

The death penalty carries with it the danger of wrongfully convicting an innocent person for

crimes he did not commit There is the potential for capital punishment to evolve into sheer

miscarriage of justice as in certain circumstances states are often seen to rush the trials and

convict the accused hastily This practice takes foremost apparently in military courts often in

119

Cavadino M amp Dignan J (1997) The Penal System An Introduction (2nd ed) p 39 London Sage 120

httpdictionaryreferencecombrowseretributivism 121

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 32 of 44

the developing or lesser-developed countries where the system of law is not properly established

It is not however exclusive to these countries Examples can be drawn from countries like

Philippines Thailand Iran and Palestine to name just a few where executions are carried out at

alarming pace removing the possibility of reviews

On 15 August 2004 Atefah Rajabi Sahaaleh was hanged in a public square in the Iranian city of

Neka Her death sentence was imposed for adultery and crimes against chastity122123

Atefah

was executed a week after the trial was run Following the execution the Judge for the case was

arrested for investigation by the Intelligence Ministry The media reported that in addition to the

confession of his rape of Atefeh Judge Rezai who served as judge jury and executioner also

confessed to torturing her during interrogations to extract names of others she had relations with

No transcripts from court proceedings were recorded The State alleged that Atefah was 22 at the

time of her execution A witness later claimed The judge just looked at her body because of

the developed physique and declared her as 22124

ndash her birth certificate revealed she was born

in 1988 Furthermore Atefah did not have access to a proper defense where she could contest

charges leveled against her This is one example of many such cases of miscarriage of justice

Something that recurs in these cases is the failure of the police or prosecuting authorities to

prevent the use of unreliable witnesses the misuse of evidence or confessions and the provision

of inadequate defense representation The advent of DNA profiling and the use of it as positive

evidence in criminal cases has resulted in the exoneration of multiple death row inmates on

grounds of forensic evidence or lack thereof Since 1973 138 people have been released from

death row in the United States after it was proven that they were innocent125

In 2009 Paul

House was cleared of murder and exonerated in Tennessee USA after having served 22 years

on death row His innocence was proclaimed in light of substantial additional DNA testing and

further investigationlsquo 126

Amnesty International has noted examples of wrongful convictions from elsewhere as well

including Jamaica Japan China Nigeria and Tanzania127

Paul G Cassell a former law clerk to

the Chief Justice of USA stated the mistaken release of guilty murderers should be of far greater

concern than the speculative and heretofore nonexistent risk of the mistaken execution of an

innocent personlsquo highlighting the case made by those who advocate the death penalty even in

light of wrongful convictions128

122

httpwwwcosmolearningcomdocumentariesexecution-of-a-teenage-girl1 123

httpnewsbbccouk2hi5217424stm 124

httpnewsbbccouk2hi5217424stm 125

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 126

httparticlescnncom2009-05-13justicetennesseeexonerated_1_death-row-inmate-dna-evidence-house-

arrest_s=PMCRIME 127

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 128

httpdeathpenaltycurriculumorgstudentcaboutargumentstestimony3bhtm

UNHRC 33 of 44

Alternative to Death Penalty

All abolitionist states have reverted to the practice of sentencing criminals to life imprisonment

(some without parole) which is also termed as death by incarceration Widely regarded as a more

humane course of action life imprisonment is also alleged to be a more economical practice

While ensuring public safety by keeping criminals away from society this system also saves the

lives of innocent people who have been falsely or wrongfully convicted The setup inhibits and

curbs the cycle of violence while retaining the deterrence factor it is strongly asserted

Advocates for the death penalty are averse towards life imprisonment for a number of reasons

They cite the unreliability of the system as one of the flaws which impedes the possibility of

such a sentence being successful A certain James Moore serves as a valid example in this case

In 1962 James Moore raped and strangled 14-year-old Pamela Moss The victimlsquos parents opted

out of capital punishment for Moore and he was instead sentenced to life in prison without

parole Twenty years later a change in sentencing laws in 1982 renders James Moore eligible for

parole every two years129130

Kenneth McDuff is another example McDuff was convicted and sentenced to life imprisonment

Years later due to the issue of overcrowding in prisons McDuff was released following which

he killed eight more people McDufflsquos example is of an individual from a developed country

with an established legal system in place131

Overcrowding is a feature of prisons in developing

or lesser developed countries In many such states criminals have also been known to easily

break out from penitentiaries

The economic aspect of the debate is murky at best There is a lack of empirical data on the

subject which is why the arguments of both these sides cannot be settled beyond doubt

Advocates of capital punishment insist that the overall costs of the practice are far lesser than the

costs of housing an inmate for a lifetime132

They also suggest that the life imprisonment allows

criminals to conceive new habeas corpus petitions which on legal grounds cannot be rejected

automatically resulting in more trials

On the other hand substantial arguments are made which stress that the cost of legal proceedings

in capital cases is in truth more than that of other cases States and nations spend a significant

portion of the taxpayerlsquos money in meting out such punishments133

Delegates when addressing

this portion of the debate will need to be aware of the financial aspects of the issue as it forms

for many states an important part of whether capital punishment should be revoked or

not

129

httpwesleylowecomcphtmldeter 130

httpwwwnytimescomkeywordparole 131

httpwesleylowecomcphtmldeter 132

Ibid ndash view section titled Capital Punishment and its costslsquo 133

httpwwwamnestyusaorgour-workissuesdeath-penaltyus-death-penalty-factsdeath-penalty-cost

UNHRC 34 of 44

Imposition of Death Penalty on Juveniles

The prohibition on the death penalty for crimes committed by juvenile offendersmdashpersons under

age 18 at the time of the offensemdashis well established in international law specifically in the

Convention on the Rights of Child

ldquoNo child shall be subjected to torture or other cruel inhuman or degrading treatment or

punishment Neither capital punishment nor life imprisonment without possibility of release shall

be imposed for offences committed by persons below eighteen years of agerdquo134

- Article 37(a) Convention on the Rights of Child

ldquoSentence of death shall not be imposed for crimes committed by persons below eighteen years

of age and shall not be carried out on pregnant womenrdquo135

- Article 6(5) International Covenant on Civil and Political Rights

The treaties are a unanimously agreed set of non-negotiable standards and obligations By

acceding to the treaties and ratifying them governments commit to protecting and ensuring

childrens rights and to holding themselves accountable for this commitment before the

international community

Even though the practice of capital punishment on juveniles is relatively rare however in clear

contravention of international law nine countries have executed offenders who were juveniles at

the time of their crimes between 1990 and 2005136

These countries include the Peoples Republic

of China (PRC) the Democratic Republic of the Congo Iran Nigeria Pakistan Saudi Arabia

Sudan the United States and Yemen137

The USA has since moved to implement a ban on capital

punishment for juveniles However in most other countries of the preceding list the practice is

still enshrined in the judicial system Iranlsquos record in particular has been abominable over the last

decade It has carried out 39 executions of persons under the age of 18 since 2005 Presently

over a hundred individuals are placed on death row for crimes committed as juveniles The

executions of Mahmoud Asgari Ayaz Marhoni and Makwan Moloudzadeh became international

symbols of Irans child capital punishment and the judicial system that hands down such

134

httpwww2ohchrorgenglishlawcrchtm 135

httpwww2ohchrorgenglishlawccprhtm 136

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf - This document by the Human Rights Watch

called The Last Holdoutslsquo is a good summary of juvenile executions and should be reviewed 137

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 - Contains a list with

statistics and details of countries which have allowed the imposition of death sentence to juveniles

UNHRC 35 of 44

sentences138139140

Saudi Arabia and China too have questionable records that need to be

scrutinized further

While regional treaties and charters usually substantiate international law the Arab Human

Rights Charter of 2004 is unique among regional and international treaties in that the ban on the

juvenile death penalty in it is not absolute but merely optional141

Furthermore national laws in states that observe such a practice are in violation of

international legally-binding charters In Iran and Saudi Arabia laws usually treat a child the

same way as an adult criminal offender would be treated Article 10(3) of the International

Covenant on Civil and Political Rights emphasizes the need for demarcation between the

handling of children and that of adults in stating ―Juvenile offenders shall be segregated from

adults and be accorded treatment appropriate to their age and legal status142

The definition of a child in these Muslim states is unclear as adulthood is associated with

attainment of puberty which is a relative concept The Committee on the Rights of the Child in

January 2005 censured the Saudi government for its practice of imposing the death penalty on

juveniles terming it a serious violation of the fundamental rights The committee was deeply

alarmed over the discretionary power judges hold to treat juveniles as adults as was stated in

the committeelsquos report Iran too was strongly condemned following the release of an

international report highlighting the dire situation in Iran by the International for Human Rights 143

138

httpwwwfoxnewscomstory0293329798200html 139

httpnewsbbccouk2himiddle_east7130380stm 140

httpenwikipediaorgwikiCapital_punishmentIran 141

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 142

httpwww2ohchrorgenglishlawccprhtm 143

httpwwwfidhorgIMGpdfRapport_Iran_finalpdf

UNHRC 36 of 44

On August 19 2008 Iranian authorities executed Seyyed Reza Hejazi at Isfahan Central Prison

for his role in a murder committed in 2003 when he was 15 Hejazi was tried as an adult by

Branch 106 of the Isfahan General Court even if he did not qualify as one under international

stipulations and sentenced to death on November 14 2005144

In Saudi Arabia Mu`id bin

Husayn bin Abu al-Qasim bin `Ali Hakami was executed on July 10 2007 for a murder he

allegedly committed three years earlier when he was 13 years old145

The judges in these states

because of the implementation of the Sharialsquo law have a large amount of discretion with regard

to their rulings This discretion is often abused in the interrogation and judicial proceedings In

Pakistan authorities hanged Mutaber Khan in Peshawar Central Prison on June 13 2006 on

charges of murder of five people The fact that he was held in the juvenile wing of Peshawar

Central prison and the evidence presented by the accused confirming that his age was below 18

at the time of the killings were not taken into account during the trials and Mutaber was charged

as an adult in the case146

While the above does not cover exhaustively the practice of capitally punishing juveniles the

committee is expected to be well read on the matter The committee will be required to devise

ways to strictly apply the existing international law on the subject to curtail further deaths of

juveniles by states A series of recommendations on better implementation of international

covenants will be expected from the committee Delegates at UNHRC will also have to

familiarize themselves with the stipulations in the national laws of countries practicing juvenile

death penalties (Iran Saudi Arabia Pakistan Nigeria Sudan Yemen and UAE among others) to

discuss how these states are constitutionally able to bend international law and mete out the

illegal punishments

144

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 145

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 146

See FIDH and Human Rights Commission of Pakistan ―Slow march to the gallows and ―Condemned Prisoner

Executed Dawn Newspaper Karachi June 14 2005 httpwwwdawncom20060614nat16htm

UNHRC 37 of 44

Universality of Laws Incurring the Death Penalty

In countries which have not abolished the death penalty capital punishment may be imposed

only for the most serious crimes it being understood that their scope should not go beyond

intentional crimes with lethal or other extremely grave consequences

- Safeguards guaranteeing protection of the rights of those facing the death penalty147

Laws incurring the death penalty or capital crimes have certain uniformity the world over This

is of course barring states that are religiously affiliated and whose law systems are not secular

in nature The list of capital crimes for those states with non-secular legal systems is slightly

different The Human Rights Commission had decided that the imposition in the State party of

the death penalty for offences which cannot be characterized as the most serious including

apostasy committing a third homosexual act illicit sex embezzlement by officials and theft by

force are incompatible with Article 6 of the Covenant Economic offences including

embezzlement drug related offences political offences and robbery were also referred to148

The reason why looking into capital crimes and trying to garner a global impression of them is

important is that the death penalty can only realistically be abolished in a piecemeal way This

process will entail shortening the list of capital crimes The UN formally notes that ―in order

fully to guarantee the right to life provided for in article 3 of the Universal Declaration of

Human Rights the main objective to be pursued is that of progressively restricting the number of

offences for which capital punishment may be imposed with a view to the desirability of

abolishing this punishment in all countries149

The first established death penalty laws date as far back as the Eighteenth Century BC in the

Code of King Hammaurabi of Babylon which codified the death penalty for 25 different crimes

By the 1700s 222 crimes were punishable by death in Britain including stealing cutting down a

tree and robbing a rabbit warren In the 19th

century the death penalty was eliminated for over

100 of the 222 crimes punishable by death 150

In modern times the UN Special Rapporteur on

extrajudicial summary or arbitrary executions has stated that the death penalty should be

eliminated for economic crimes and drug-related offences and that the restrictions to its use

―exclude the possibility of death sentences for so-called victimless offences ndash including acts of

treason espionage and other vaguely defined acts usually described as crimes against the Statelsquo

or disloyaltylsquo and ―actions primarily related to prevailing moral values such as adultery and

prostitution as well as matters of sexual orientation151

147

httpwww2ohchrorgenglishlawpdfprotectionpdf 148

httpwwwunhchrchtbsdocnsf0bc310a747155dff88025655300537faeOpendocument 149

General Assembly resolution 2857 httpwwwunodcorgpdfcompendiumcompendium_2006_part_01_05pdf 150

httpdeathpenaltycurriculumorgstudentcabouthistoryhistoryPDF 151

httpswwwabofimedia24259report10pdf

UNHRC 38 of 44

Contrary to the made recommendations even political dissent warrants a death sentence in

several countries most notably in China and Iran In 2010 nearly 20 Kurdish people were

executed for political offences in Iran The country is known for keeping dissent especially from

the Kurds suppressed Most are executed on the grounds of moharebeh or enmity against God

Moreover challenging the power of the Ayatollah is also punishable by death These charges are

neither explicit nor in line with international guidelines over what crimes are punishable

capitally In Iran judges must handle such cases carefully as Iranian law provides for only one

punishment if an individual is found to be guilty of treason Libya too thwarts political dissent

with firm laws in place for punishing by death those who illegally form groups organizations or

associations against the state152

Saudi Arabia too is worth note for its vaguely phrased laws governing capital punishment

Intentional murder and crimes that spread ―mischief in the land (Fasad fil-ardh) merit death In

2010 the government announced that it had executed 26 people all by beheading Crimes that

―spread mischief include witchcraft and sorcery153

How is one convicted of witchcraft in the

21st century What can the international community do when regarding countries such as these

Treason arguably along with murder is the capital crime that has yet to be phased out by many

countries In some such as Brazil treason during warfare is the only crime for which a person

can be sentenced to death In the Gaza Strip under Hamas any sort of cooperation with Israeli

forces during military actions is also punishable by death In others including Algeria Bahrain

Iran and Malaysia treason is punishable by death in all circumstances The United States too has

federal laws governing treason under which traitors ―shall suffer death154

Child sex abuse is another crime that is widely held to merit the death penalty In Russia for

example according to the Russian Public Opinion Research Center an overwhelming majority

consider the death penalty to be an acceptable punishment especially in relation to molestation

155 In 2009 however Russias Constitutional Court effectively abolished the death penalty by

extending indefinitely a 13-year-old moratorium on capital punishment156

Indonesia has some of the strictest penalties for drug related crimes in the world Roughly half of

those on death row are incriminated with drug-related charges157

In 2008 though the most high

profile executions were of terrorists Three of those found responsible for the 2002 Bali

bombings were executed by shooting158

Generally speaking however a significant proportion of

152

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 153

httpwwwstategovgdrlrlshrrpt2010nea154472htm 154

httpdeathpenaltyproconorgviewresourcephpresourceID=1172 155

httpenrianrutrenddeath_penalty 156

httpwwwreuterscomarticle20091119idUSLJ330478 157

httpwwwnytimescom20080711worldasia11iht-indo114421132html 158

httpnewsbbccouk2hiasia-pacific7718246stm

UNHRC 39 of 44

the executions or death sentences recorded (in 2010) in China Egypt Indonesia Iran Laos

Libya Thailand United Arab Emirates and Yemen were for drug-related offences In December

2010 the amended Anti-Narcotics law came into force in Iran extending the scope of the death

penalty to include additional categories of illegal drugs (for example crystal meth) possession

of which became punishable by death Also around the same time the National Assembly of

Gambia voted to extend the scope of the death penalty by making the possession of more than

250g of heroin or cocaine an offence punishable by death159

Several states allow for the death penalty for crimes of blasphemy and other crimes for

nonviolent expression and association In Pakistan Aasia Bibi a Christian mother of five was

charged with blasphemy and sentenced to death after a trial largely believed to be unfair on 8

November 2010 She is currently on death row The country is also noted for its laws concerning

capital crimes The list includes 27 crimes most of which go beyond the notion of ―most serious

crimes as recommended by the International Covenant on Civil and Political Rights Extra-

marital sex and blasphemy are examples of some capital crimes in the country In December

2007 Pakistan voted against a United Nation General Assembly resolution for a moratorium on

the death penalty The year before however the nation amended its law on rape and adultery

charges which are no longer punishable by death160

As far back as 1989 recommendations have been made as to how to abolish the death penalty

Member states (of the UN) have been urged ―to publish for each category of offence for which

the death penalty is authorized and if possible on an annual basis information about the use of

the death penalty including the number of persons sentenced to death the number of executions

actually carried out the number of persons under sentence of death the number of death

sentences reversed or commuted on appeal and the number of instances in which clemency has

been granted and to include information on the extent to which the safeguards referred to above

are incorporated in national law161

The committee must inspect how far this recommendation

has been adopted and should seek to rectify the weaknesses in the system of gradually

abolishing the death penalty Can a target year be designated by which crimes meriting the death

penalty could be made universal How can countries with non-secular legal systems be brought

into the fold of international law

159

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 160

httpwwwfiacatorgenIMGpdfdppakistan-enpdf 161

httpgraduateinstitutechfacultyclaphamhrdocdocsecosocresolutiondeathpen1989html

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 29: UNHRCFINAL

UNHRC 25 of 44

Topic Area B Abolishing the Death Penalty

Introduction to the Topic Area

The death penalty is formally defined as the execution of an offender sentenced to death after

conviction by a court of law of a criminal offenselsquo90

The concept of a capital crime is subjective

and states have made use of this practice in response to multiple forms of crime The use of the

death penalty has produced much controversy with regard to its apparent violation of

fundamental human rights as delineated in the Universal Declaration of Human Rights and

subsequent human rights charters and treaties It is asserted that the use of death penalty is in

contravention to the peopleslsquo right to life promised to every individual under Article 3 of the

Declaration91

Moreover Article 2 of the Charter of Fundamental Rights of the European Union

lucidly bars the imposition of death penalty as a form of punishment92

Arguments against the

use of death penalty are also made on the grounds of inhumane methods which are employed to

see out the process Historically multiple methods have been used which include death by

hanging severing of the head lethal injection shooting and electrocution93

94

As a response states have made keen efforts to abolish

the death penalty particularly in the last two decades as

can be interpreted from the graph on the right which

represents the number of states that have abolished the

death penalty Countries belonging to the European

region with the exclusion of Russia and Belarus have

sought to revoke the use of the practice The death

penalty is most commonly seen to be a formal practice

in most of the developing countries The trend is

apparent in Latin America Africa and Asia

96 countries have formally abandoned the use of death penalty 58 countries allow the use95

Other states have abolished the penalty in practice but the laws remain in place for the

imposition of the penalty as a response to certain crimes The imposition of the death penalty has

90

httpwwwbritannicacomEBcheckedtopic93902capital-punishment 91

httpwwwunorgendocumentsudhr 92

httpwwweuroparleuropaeucharterpdftext_enpdf 93

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffle

re-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 94

httpwwwdeathpenaltyinfoorgmethods-execution 95

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf

Figure 1 (Drag to enlarge)

UNHRC 26 of 44

seen a decline over the recent years with a fall in the number of executions that take place

annually It would however be incorrect to assume that the practice is not prevalent or widely in

effect Amnesty International reported that at least 2024 new death sentences were imposed in 67

countries in 2010 Moreover there were at least 17833 people sentenced to death worldwide at

the end of 201096

Again these are minimum figures which are the safest that can be inferred

from the given research There were 527 known executions carried out in 2010 globally97

This

figure however does not include the number of executions that took place in China where

analysts believe that more than a thousand people were put to death in the past year

The statistics represent the number of people executed through capital punishment One way to

formally define capital punishment is to regard it as the state sanctioned killing of an individual

through a judicial process as a punishment for a crime (defined as a capital crime by the state)98

Capital punishment is the most obvious and prevalent manifestation of the death penalty It is

often perceived as a statelsquos right in order to preserve law and order against any individual who

engages in serious crimes that threaten other individuals or the state Those who advocate against

the use of capital punishment label it as a symptom of a culture of violence not a solution to

itlsquo99

The controversy surrounding the topic is based on the legal ethical and moral acceptability

of the statelsquos right to an individuallsquos life The debate entails several social and economic factors

some of which will be reviewed in closer detail in the relevant section of this guide

One of the most striking aspects related to the issue is the imposition of the capital punishment

on juveniles The sentencing of juveniles to death is in clear breach of international law The

morality and validity of such a practice is often called into question and has been put under

relentless scrutiny despite all of which the practice is still carried out in a number of countries

Historically the United States China and Iran have the worst records relating to juvenile death

sentences100

The study guide also includes a separate section for the case of juveniles in which

the legal and social aspects of the problems are detailed

As stated states have made use of the death penalty to punish crimes of varying natures The use

of the death penalty is reserved for only the most seriouslsquo crimes as put forth in international

law101

The notion of a capital crime however is a subjective one states that have doled out

death sentences have defined it differently In certain countries the death penalty is only used to

charge criminals accused of war crimes In other countries the penalty is reserved for crimes like

96

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf 97

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010 98

httpusersrcncommwooddeathpenhtml 99

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 100

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 101

httpwwwunorgdocumentsecosocdocs1995e1995-78htm

UNHRC 27 of 44

murder rape or even robbery States also use the death penalty against individuals who are guilty

of treason The issue however is that many states practicing the death penalty impose the

punishment even when the crimes do not meet the threshold for the aforementioned most

seriouslsquo crimes The ability of states to define what constitutes as a capital crime has led to states

abusing their powers as has been observed in the sentences ordained by military courts

Moreover even the radicals who make the argument of the punishment fitting the crime agree

that in many instances individuals have been executed for softlsquo crimes crimes that were

certainly not tantamount to charges of murder or crimes against humanity The issue of apparent

violations of human rights is further exacerbated in these instances The study guide will discuss

the universal crimes that have resulted in the awarding of the death penalty and examine the

issue further The committee will be expected to discuss the feasibility of drawing up an

international definition of crimes which in isolated instances perhaps may be appropriate for a

sentence like the death penalty

Another pertinent aspect surrounding the debate is that of extrajudicial killings The execution of

a person by state authorities without the authority of a judicial proceeding is termed as an

extrajudicial killing Many states have used extrajudicial killings to establish their authority and

order without having to wade through the legal process By doing so they have deprived scores

of people of their fundamental right to free and fair trials Governments have also employed this

tactic to exercise political aggression and to suppress dissent A particular point of concern is the

fact that some states have made use of these killings even when they have officially revoked the

imposition of the death penalty Extrajudicial killings are carried out persistently in many

countries ndash the list includes countries like Iran Iraq Israel Philippines102

Most recently the

killing of Anwar al-Awlaki and Samir Khan in Yemen by a sanctioned National Security Council

move by the USA was an example of states embarking on such paths to eliminate threats to

national securitylsquo103

102

Multiple citations for each country can be found in the second paragraph article titled Extrajudicial killinglsquo on

Wikipedia 103

httpwwwtelegraphcouknewsworldnewsbarackobama7564581Barack-Obama-orders-killing-of-US-cleric-

Anwar-al-Awlakihtml

UNHRC 28 of 44

Wrongful convictions lead many to believe in the inherent incapacity of the death penalty to

serve justice On September 21 2011 US citizen Troy Davis was executed in Georgia after

which seven of the nine witnesses who testified against him in the case that led to his execution

recounted or retracted their evidences A petition with nearly one million signatures was put

forth to reconsider his case it was rejected On the same day a 17 year old boy was publicly

hanged in Iran for killing a popular athlete his justification based on self-defense was ignored

Also on the same day a Pakistani national was executed in China on grounds of drug trafficking

an offence that does not often result in capital punishment The need for the resolution of this

issue is pressing and the committee needs to deal with all aspects of the problem in a

comprehensive and enduring manner104

Capital Punishment

In 2010 23 countries implemented capital punishment A total of 527 executions (plus the 1000+

carried out in China alone) were known to have taken place with Iran Yemen USA and North

Korea meting out a significant number of sentences105

The figure is lower than the records

computed for years past There are more states which are now abolitionist either in law or in

practice with regard to the imposition of the punishment Gabon was officially the last country

to rescind the practice while bills calling for an end to capital punishment have been presented

to parliaments in Lebanon Mali Mongolia and South Korea106

Renewed efforts are

104

httpwwwamnestyorgennews-and-updatesus-executes-death-row-prisoner-troy-davis-2011-09-21 105

httpwwwguardiancouknewsdatablog2011mar29death-penalty-countries-world 106

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010

UNHRC 29 of 44

simultaneously being made on the international front to implement laws against capital

punishment A third resolution establishing a moratorium on the use of death penalty passed the

UN General Assembly on December 21 2010107

Despite the increasing momentum towards an eventual elimination of the practice the number of

executions taking place annually is a cause of major concern Advocates of the death penalty

assert that the practice is an effective means of deterring crime in society Public executions are

often held in Iran Afghanistan and Palestine for example to demonstrate the fate awaiting

those who commit similar crimes108

Arguments are made on the grounds of justice that it is

proper and fair to take an eye for an eye and a life for a life and that some individuals deserve

it for the crimes they commit

Those opposing the practice question the morality of an action sanctioned by the state which

endorses deprivation of the right to life a fundamental human right under the Universal

Declaration of Human Rights109

There are inescapable flaws within legal systems which are

aggravated by discrimination prosecutorial misconduct and inadequate legal representation

Moreover the risk of executing the innocent can never be eliminated110

An alternative is

presented in the form of imprisonment for life without parole which results in a parallel debate

is imprisonment for life a viable surrogate to the practice of death penalty A thread from this

debate also relates to the economic feasibility of carrying out a death sentence as opposed to the

feasibility of imprisonment for life

Deterrence

Capital punishment is often propagated as an adequate approach in the deterrence and prevention

of crime The logic is that if murderers are sentenced to death potential murderers will think

twice before killing for fear of losing their own life The deterrence theory presumes that the

once the punishment for a certain crime is established the criminal by committing the crime

voluntarily assumes the risk of receiving the prescribed punishment for the crime Only when the

most severe punishment has been set will there be a possibility of an individual evaluating their

actions in light of the consequences111

107

httpwwwundemocracycomA-RES-62-149pdf 108

httpwwwamnestyorgennews-and-updatessharp-rise-public-executions-iran-executes-first-juvenile-

offenders-2011-2011-04-27 109

wwwunorgendocumentsudhr 110

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 111

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 30 of 44

The death penalty it is asserted ensures that convicted criminals do not offend again moreover

it is deemed to be a just penalty for atrocious crimes It is further alleged that many criminals

who are set free even after lengthy sentences regress and go on to commit heinous crimes

Therefore there should never be the possibility of a release clause112

The deterrence theory is modeled on the grounds of human psychology logic and rationale As a

professor of jurisprudence Ernest van den Haag PhD wrote ―Common sense lately bolstered

by statistics tells us that the death penalty will deter murder if anything can People fear nothing

more than death Therefore nothing will deter a criminal more than the fear of death These

statements were further validated by a US Supreme Court Justice who said on record that

Prima facie the penalty of death is likely to have a stronger effect as a deterrent to normal

human beings than any other form of punishmentlsquo113

Numerous studies have been conducted on

the subject with varying results One of the most established studies was conducted in USA

using a panel data set of over 3000 counties from 1977 to 1996 which concluded that on

average one death sentence resulted in 18 fewer murders114

Delegates will be expected to be

familiar with other similar studies

These studies are commonly refuted as not crediblelsquo by opponents of the capital punishment

who also deny the correlation between crime and death penalty as a fabricated relationship which

cannot be empirically established115116

A study of the relationship between capital punishment

and the incidence of murder was conducted for the UN in 1988 and updated in 2002 The

conclusion was ―The investigation has not provided scientific proof that executions have more

deterrent effect than life imprisonment It is unlikely that such evidence will ever come

Deterrence hypothesis finds no support in the survey117

Another counter-argument asserts that crime is still a persistent feature of the societies that

continue to award the death penalty while many of the abolitionist states enjoy low crime rates

This can be evidenced by comparing the crime rate in USA or Pakistan with that of Canada or

some European state In Canada for example the homicide rate per 100000 fell from a peak of

309 in 1975 the year before the abolition of the death penalty for murder to 241 in 1980 and

in 2003 27 years after abolition the homicide rate was 173 per 100000 44 per cent lower than

in 1975118

112

httpwwwdeathpenaltyinfoorgfacts-about-deterrence-and-death-penalty 113

httpdeathpenaltyproconorgviewresourcephpresourceID=002000 114

httpdeathpenaltyproconorgsourcefilesThe20Deterrent20Effect20of20Capital20Punishmentpdf ndash

Delegates should carefully examine certain parts of this document to establish the credibility of the assertions made

They should also invest in trying to locate studies that refute the assertions made in this and similar studies 115

httpwwwdeathpenaltyinfoorglaw-enforcement-views-deterrencelawenforcement 116

httpwwwdeathpenaltyinfoorgDonohueDeterpdf 117

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 118

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml

UNHRC 31 of 44

The lack of evidence on the production of a unique deterrent effect points to the danger of

relying on the deterrence hypothesis as a basis for public policy on the death penalty

Retribution amp Morality

An important terminology that delegates need to familiarize themselves with is that of

―retributivism119

It is defined as ―a policy of criminal justice that sponsors the punishment of

criminals in retribution for the harm they have inflicted120

Criminals deserve to be punished in

proportion to the gravity of their crime regardless of whether the victim or anyone else desires

it we may all deeply regret having to carry out the punishment but consider it warrantedlsquo is

what many say in defense of the theory121

The need for the establishment of a visibly just state arises from the potential risks of not having

one As has been visible in many developing countries with shaky legal systems when criminals

are not adequately punished for their unlawful behavior the public takes the law into its own

hands and deals out vigilante justice It is asserted that retributivism is essential for a functioning

society where individuals respect the supremacy of law

The concept of retribution in society is also grounded in religious beliefs The concept of an eye

for an eye has been a part of all three Abrahamic traditions However in the modern world it is

Islamic nations that still retain the practice based on these grounds Similar traditions can be

found in Hinduism Christianity and Buddhism as well as other religions in different parts of the

world In many non-secular countries the constitutions and state laws are derived from religious

doctrines

Opponents dismiss this aspect of the argument as being emotionally charged with little rational

logic to support the contention They claim that the establishment of capital punishment gives

birth to a culture of violence endorsed by the state It perpetuates the cycle of aggression and

brutality something which the state should be actively inhibiting not endorsing

Wrongful Convictions

The death penalty carries with it the danger of wrongfully convicting an innocent person for

crimes he did not commit There is the potential for capital punishment to evolve into sheer

miscarriage of justice as in certain circumstances states are often seen to rush the trials and

convict the accused hastily This practice takes foremost apparently in military courts often in

119

Cavadino M amp Dignan J (1997) The Penal System An Introduction (2nd ed) p 39 London Sage 120

httpdictionaryreferencecombrowseretributivism 121

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 32 of 44

the developing or lesser-developed countries where the system of law is not properly established

It is not however exclusive to these countries Examples can be drawn from countries like

Philippines Thailand Iran and Palestine to name just a few where executions are carried out at

alarming pace removing the possibility of reviews

On 15 August 2004 Atefah Rajabi Sahaaleh was hanged in a public square in the Iranian city of

Neka Her death sentence was imposed for adultery and crimes against chastity122123

Atefah

was executed a week after the trial was run Following the execution the Judge for the case was

arrested for investigation by the Intelligence Ministry The media reported that in addition to the

confession of his rape of Atefeh Judge Rezai who served as judge jury and executioner also

confessed to torturing her during interrogations to extract names of others she had relations with

No transcripts from court proceedings were recorded The State alleged that Atefah was 22 at the

time of her execution A witness later claimed The judge just looked at her body because of

the developed physique and declared her as 22124

ndash her birth certificate revealed she was born

in 1988 Furthermore Atefah did not have access to a proper defense where she could contest

charges leveled against her This is one example of many such cases of miscarriage of justice

Something that recurs in these cases is the failure of the police or prosecuting authorities to

prevent the use of unreliable witnesses the misuse of evidence or confessions and the provision

of inadequate defense representation The advent of DNA profiling and the use of it as positive

evidence in criminal cases has resulted in the exoneration of multiple death row inmates on

grounds of forensic evidence or lack thereof Since 1973 138 people have been released from

death row in the United States after it was proven that they were innocent125

In 2009 Paul

House was cleared of murder and exonerated in Tennessee USA after having served 22 years

on death row His innocence was proclaimed in light of substantial additional DNA testing and

further investigationlsquo 126

Amnesty International has noted examples of wrongful convictions from elsewhere as well

including Jamaica Japan China Nigeria and Tanzania127

Paul G Cassell a former law clerk to

the Chief Justice of USA stated the mistaken release of guilty murderers should be of far greater

concern than the speculative and heretofore nonexistent risk of the mistaken execution of an

innocent personlsquo highlighting the case made by those who advocate the death penalty even in

light of wrongful convictions128

122

httpwwwcosmolearningcomdocumentariesexecution-of-a-teenage-girl1 123

httpnewsbbccouk2hi5217424stm 124

httpnewsbbccouk2hi5217424stm 125

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 126

httparticlescnncom2009-05-13justicetennesseeexonerated_1_death-row-inmate-dna-evidence-house-

arrest_s=PMCRIME 127

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 128

httpdeathpenaltycurriculumorgstudentcaboutargumentstestimony3bhtm

UNHRC 33 of 44

Alternative to Death Penalty

All abolitionist states have reverted to the practice of sentencing criminals to life imprisonment

(some without parole) which is also termed as death by incarceration Widely regarded as a more

humane course of action life imprisonment is also alleged to be a more economical practice

While ensuring public safety by keeping criminals away from society this system also saves the

lives of innocent people who have been falsely or wrongfully convicted The setup inhibits and

curbs the cycle of violence while retaining the deterrence factor it is strongly asserted

Advocates for the death penalty are averse towards life imprisonment for a number of reasons

They cite the unreliability of the system as one of the flaws which impedes the possibility of

such a sentence being successful A certain James Moore serves as a valid example in this case

In 1962 James Moore raped and strangled 14-year-old Pamela Moss The victimlsquos parents opted

out of capital punishment for Moore and he was instead sentenced to life in prison without

parole Twenty years later a change in sentencing laws in 1982 renders James Moore eligible for

parole every two years129130

Kenneth McDuff is another example McDuff was convicted and sentenced to life imprisonment

Years later due to the issue of overcrowding in prisons McDuff was released following which

he killed eight more people McDufflsquos example is of an individual from a developed country

with an established legal system in place131

Overcrowding is a feature of prisons in developing

or lesser developed countries In many such states criminals have also been known to easily

break out from penitentiaries

The economic aspect of the debate is murky at best There is a lack of empirical data on the

subject which is why the arguments of both these sides cannot be settled beyond doubt

Advocates of capital punishment insist that the overall costs of the practice are far lesser than the

costs of housing an inmate for a lifetime132

They also suggest that the life imprisonment allows

criminals to conceive new habeas corpus petitions which on legal grounds cannot be rejected

automatically resulting in more trials

On the other hand substantial arguments are made which stress that the cost of legal proceedings

in capital cases is in truth more than that of other cases States and nations spend a significant

portion of the taxpayerlsquos money in meting out such punishments133

Delegates when addressing

this portion of the debate will need to be aware of the financial aspects of the issue as it forms

for many states an important part of whether capital punishment should be revoked or

not

129

httpwesleylowecomcphtmldeter 130

httpwwwnytimescomkeywordparole 131

httpwesleylowecomcphtmldeter 132

Ibid ndash view section titled Capital Punishment and its costslsquo 133

httpwwwamnestyusaorgour-workissuesdeath-penaltyus-death-penalty-factsdeath-penalty-cost

UNHRC 34 of 44

Imposition of Death Penalty on Juveniles

The prohibition on the death penalty for crimes committed by juvenile offendersmdashpersons under

age 18 at the time of the offensemdashis well established in international law specifically in the

Convention on the Rights of Child

ldquoNo child shall be subjected to torture or other cruel inhuman or degrading treatment or

punishment Neither capital punishment nor life imprisonment without possibility of release shall

be imposed for offences committed by persons below eighteen years of agerdquo134

- Article 37(a) Convention on the Rights of Child

ldquoSentence of death shall not be imposed for crimes committed by persons below eighteen years

of age and shall not be carried out on pregnant womenrdquo135

- Article 6(5) International Covenant on Civil and Political Rights

The treaties are a unanimously agreed set of non-negotiable standards and obligations By

acceding to the treaties and ratifying them governments commit to protecting and ensuring

childrens rights and to holding themselves accountable for this commitment before the

international community

Even though the practice of capital punishment on juveniles is relatively rare however in clear

contravention of international law nine countries have executed offenders who were juveniles at

the time of their crimes between 1990 and 2005136

These countries include the Peoples Republic

of China (PRC) the Democratic Republic of the Congo Iran Nigeria Pakistan Saudi Arabia

Sudan the United States and Yemen137

The USA has since moved to implement a ban on capital

punishment for juveniles However in most other countries of the preceding list the practice is

still enshrined in the judicial system Iranlsquos record in particular has been abominable over the last

decade It has carried out 39 executions of persons under the age of 18 since 2005 Presently

over a hundred individuals are placed on death row for crimes committed as juveniles The

executions of Mahmoud Asgari Ayaz Marhoni and Makwan Moloudzadeh became international

symbols of Irans child capital punishment and the judicial system that hands down such

134

httpwww2ohchrorgenglishlawcrchtm 135

httpwww2ohchrorgenglishlawccprhtm 136

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf - This document by the Human Rights Watch

called The Last Holdoutslsquo is a good summary of juvenile executions and should be reviewed 137

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 - Contains a list with

statistics and details of countries which have allowed the imposition of death sentence to juveniles

UNHRC 35 of 44

sentences138139140

Saudi Arabia and China too have questionable records that need to be

scrutinized further

While regional treaties and charters usually substantiate international law the Arab Human

Rights Charter of 2004 is unique among regional and international treaties in that the ban on the

juvenile death penalty in it is not absolute but merely optional141

Furthermore national laws in states that observe such a practice are in violation of

international legally-binding charters In Iran and Saudi Arabia laws usually treat a child the

same way as an adult criminal offender would be treated Article 10(3) of the International

Covenant on Civil and Political Rights emphasizes the need for demarcation between the

handling of children and that of adults in stating ―Juvenile offenders shall be segregated from

adults and be accorded treatment appropriate to their age and legal status142

The definition of a child in these Muslim states is unclear as adulthood is associated with

attainment of puberty which is a relative concept The Committee on the Rights of the Child in

January 2005 censured the Saudi government for its practice of imposing the death penalty on

juveniles terming it a serious violation of the fundamental rights The committee was deeply

alarmed over the discretionary power judges hold to treat juveniles as adults as was stated in

the committeelsquos report Iran too was strongly condemned following the release of an

international report highlighting the dire situation in Iran by the International for Human Rights 143

138

httpwwwfoxnewscomstory0293329798200html 139

httpnewsbbccouk2himiddle_east7130380stm 140

httpenwikipediaorgwikiCapital_punishmentIran 141

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 142

httpwww2ohchrorgenglishlawccprhtm 143

httpwwwfidhorgIMGpdfRapport_Iran_finalpdf

UNHRC 36 of 44

On August 19 2008 Iranian authorities executed Seyyed Reza Hejazi at Isfahan Central Prison

for his role in a murder committed in 2003 when he was 15 Hejazi was tried as an adult by

Branch 106 of the Isfahan General Court even if he did not qualify as one under international

stipulations and sentenced to death on November 14 2005144

In Saudi Arabia Mu`id bin

Husayn bin Abu al-Qasim bin `Ali Hakami was executed on July 10 2007 for a murder he

allegedly committed three years earlier when he was 13 years old145

The judges in these states

because of the implementation of the Sharialsquo law have a large amount of discretion with regard

to their rulings This discretion is often abused in the interrogation and judicial proceedings In

Pakistan authorities hanged Mutaber Khan in Peshawar Central Prison on June 13 2006 on

charges of murder of five people The fact that he was held in the juvenile wing of Peshawar

Central prison and the evidence presented by the accused confirming that his age was below 18

at the time of the killings were not taken into account during the trials and Mutaber was charged

as an adult in the case146

While the above does not cover exhaustively the practice of capitally punishing juveniles the

committee is expected to be well read on the matter The committee will be required to devise

ways to strictly apply the existing international law on the subject to curtail further deaths of

juveniles by states A series of recommendations on better implementation of international

covenants will be expected from the committee Delegates at UNHRC will also have to

familiarize themselves with the stipulations in the national laws of countries practicing juvenile

death penalties (Iran Saudi Arabia Pakistan Nigeria Sudan Yemen and UAE among others) to

discuss how these states are constitutionally able to bend international law and mete out the

illegal punishments

144

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 145

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 146

See FIDH and Human Rights Commission of Pakistan ―Slow march to the gallows and ―Condemned Prisoner

Executed Dawn Newspaper Karachi June 14 2005 httpwwwdawncom20060614nat16htm

UNHRC 37 of 44

Universality of Laws Incurring the Death Penalty

In countries which have not abolished the death penalty capital punishment may be imposed

only for the most serious crimes it being understood that their scope should not go beyond

intentional crimes with lethal or other extremely grave consequences

- Safeguards guaranteeing protection of the rights of those facing the death penalty147

Laws incurring the death penalty or capital crimes have certain uniformity the world over This

is of course barring states that are religiously affiliated and whose law systems are not secular

in nature The list of capital crimes for those states with non-secular legal systems is slightly

different The Human Rights Commission had decided that the imposition in the State party of

the death penalty for offences which cannot be characterized as the most serious including

apostasy committing a third homosexual act illicit sex embezzlement by officials and theft by

force are incompatible with Article 6 of the Covenant Economic offences including

embezzlement drug related offences political offences and robbery were also referred to148

The reason why looking into capital crimes and trying to garner a global impression of them is

important is that the death penalty can only realistically be abolished in a piecemeal way This

process will entail shortening the list of capital crimes The UN formally notes that ―in order

fully to guarantee the right to life provided for in article 3 of the Universal Declaration of

Human Rights the main objective to be pursued is that of progressively restricting the number of

offences for which capital punishment may be imposed with a view to the desirability of

abolishing this punishment in all countries149

The first established death penalty laws date as far back as the Eighteenth Century BC in the

Code of King Hammaurabi of Babylon which codified the death penalty for 25 different crimes

By the 1700s 222 crimes were punishable by death in Britain including stealing cutting down a

tree and robbing a rabbit warren In the 19th

century the death penalty was eliminated for over

100 of the 222 crimes punishable by death 150

In modern times the UN Special Rapporteur on

extrajudicial summary or arbitrary executions has stated that the death penalty should be

eliminated for economic crimes and drug-related offences and that the restrictions to its use

―exclude the possibility of death sentences for so-called victimless offences ndash including acts of

treason espionage and other vaguely defined acts usually described as crimes against the Statelsquo

or disloyaltylsquo and ―actions primarily related to prevailing moral values such as adultery and

prostitution as well as matters of sexual orientation151

147

httpwww2ohchrorgenglishlawpdfprotectionpdf 148

httpwwwunhchrchtbsdocnsf0bc310a747155dff88025655300537faeOpendocument 149

General Assembly resolution 2857 httpwwwunodcorgpdfcompendiumcompendium_2006_part_01_05pdf 150

httpdeathpenaltycurriculumorgstudentcabouthistoryhistoryPDF 151

httpswwwabofimedia24259report10pdf

UNHRC 38 of 44

Contrary to the made recommendations even political dissent warrants a death sentence in

several countries most notably in China and Iran In 2010 nearly 20 Kurdish people were

executed for political offences in Iran The country is known for keeping dissent especially from

the Kurds suppressed Most are executed on the grounds of moharebeh or enmity against God

Moreover challenging the power of the Ayatollah is also punishable by death These charges are

neither explicit nor in line with international guidelines over what crimes are punishable

capitally In Iran judges must handle such cases carefully as Iranian law provides for only one

punishment if an individual is found to be guilty of treason Libya too thwarts political dissent

with firm laws in place for punishing by death those who illegally form groups organizations or

associations against the state152

Saudi Arabia too is worth note for its vaguely phrased laws governing capital punishment

Intentional murder and crimes that spread ―mischief in the land (Fasad fil-ardh) merit death In

2010 the government announced that it had executed 26 people all by beheading Crimes that

―spread mischief include witchcraft and sorcery153

How is one convicted of witchcraft in the

21st century What can the international community do when regarding countries such as these

Treason arguably along with murder is the capital crime that has yet to be phased out by many

countries In some such as Brazil treason during warfare is the only crime for which a person

can be sentenced to death In the Gaza Strip under Hamas any sort of cooperation with Israeli

forces during military actions is also punishable by death In others including Algeria Bahrain

Iran and Malaysia treason is punishable by death in all circumstances The United States too has

federal laws governing treason under which traitors ―shall suffer death154

Child sex abuse is another crime that is widely held to merit the death penalty In Russia for

example according to the Russian Public Opinion Research Center an overwhelming majority

consider the death penalty to be an acceptable punishment especially in relation to molestation

155 In 2009 however Russias Constitutional Court effectively abolished the death penalty by

extending indefinitely a 13-year-old moratorium on capital punishment156

Indonesia has some of the strictest penalties for drug related crimes in the world Roughly half of

those on death row are incriminated with drug-related charges157

In 2008 though the most high

profile executions were of terrorists Three of those found responsible for the 2002 Bali

bombings were executed by shooting158

Generally speaking however a significant proportion of

152

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 153

httpwwwstategovgdrlrlshrrpt2010nea154472htm 154

httpdeathpenaltyproconorgviewresourcephpresourceID=1172 155

httpenrianrutrenddeath_penalty 156

httpwwwreuterscomarticle20091119idUSLJ330478 157

httpwwwnytimescom20080711worldasia11iht-indo114421132html 158

httpnewsbbccouk2hiasia-pacific7718246stm

UNHRC 39 of 44

the executions or death sentences recorded (in 2010) in China Egypt Indonesia Iran Laos

Libya Thailand United Arab Emirates and Yemen were for drug-related offences In December

2010 the amended Anti-Narcotics law came into force in Iran extending the scope of the death

penalty to include additional categories of illegal drugs (for example crystal meth) possession

of which became punishable by death Also around the same time the National Assembly of

Gambia voted to extend the scope of the death penalty by making the possession of more than

250g of heroin or cocaine an offence punishable by death159

Several states allow for the death penalty for crimes of blasphemy and other crimes for

nonviolent expression and association In Pakistan Aasia Bibi a Christian mother of five was

charged with blasphemy and sentenced to death after a trial largely believed to be unfair on 8

November 2010 She is currently on death row The country is also noted for its laws concerning

capital crimes The list includes 27 crimes most of which go beyond the notion of ―most serious

crimes as recommended by the International Covenant on Civil and Political Rights Extra-

marital sex and blasphemy are examples of some capital crimes in the country In December

2007 Pakistan voted against a United Nation General Assembly resolution for a moratorium on

the death penalty The year before however the nation amended its law on rape and adultery

charges which are no longer punishable by death160

As far back as 1989 recommendations have been made as to how to abolish the death penalty

Member states (of the UN) have been urged ―to publish for each category of offence for which

the death penalty is authorized and if possible on an annual basis information about the use of

the death penalty including the number of persons sentenced to death the number of executions

actually carried out the number of persons under sentence of death the number of death

sentences reversed or commuted on appeal and the number of instances in which clemency has

been granted and to include information on the extent to which the safeguards referred to above

are incorporated in national law161

The committee must inspect how far this recommendation

has been adopted and should seek to rectify the weaknesses in the system of gradually

abolishing the death penalty Can a target year be designated by which crimes meriting the death

penalty could be made universal How can countries with non-secular legal systems be brought

into the fold of international law

159

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 160

httpwwwfiacatorgenIMGpdfdppakistan-enpdf 161

httpgraduateinstitutechfacultyclaphamhrdocdocsecosocresolutiondeathpen1989html

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 30: UNHRCFINAL

UNHRC 26 of 44

seen a decline over the recent years with a fall in the number of executions that take place

annually It would however be incorrect to assume that the practice is not prevalent or widely in

effect Amnesty International reported that at least 2024 new death sentences were imposed in 67

countries in 2010 Moreover there were at least 17833 people sentenced to death worldwide at

the end of 201096

Again these are minimum figures which are the safest that can be inferred

from the given research There were 527 known executions carried out in 2010 globally97

This

figure however does not include the number of executions that took place in China where

analysts believe that more than a thousand people were put to death in the past year

The statistics represent the number of people executed through capital punishment One way to

formally define capital punishment is to regard it as the state sanctioned killing of an individual

through a judicial process as a punishment for a crime (defined as a capital crime by the state)98

Capital punishment is the most obvious and prevalent manifestation of the death penalty It is

often perceived as a statelsquos right in order to preserve law and order against any individual who

engages in serious crimes that threaten other individuals or the state Those who advocate against

the use of capital punishment label it as a symptom of a culture of violence not a solution to

itlsquo99

The controversy surrounding the topic is based on the legal ethical and moral acceptability

of the statelsquos right to an individuallsquos life The debate entails several social and economic factors

some of which will be reviewed in closer detail in the relevant section of this guide

One of the most striking aspects related to the issue is the imposition of the capital punishment

on juveniles The sentencing of juveniles to death is in clear breach of international law The

morality and validity of such a practice is often called into question and has been put under

relentless scrutiny despite all of which the practice is still carried out in a number of countries

Historically the United States China and Iran have the worst records relating to juvenile death

sentences100

The study guide also includes a separate section for the case of juveniles in which

the legal and social aspects of the problems are detailed

As stated states have made use of the death penalty to punish crimes of varying natures The use

of the death penalty is reserved for only the most seriouslsquo crimes as put forth in international

law101

The notion of a capital crime however is a subjective one states that have doled out

death sentences have defined it differently In certain countries the death penalty is only used to

charge criminals accused of war crimes In other countries the penalty is reserved for crimes like

96

httpwwwamnestyorgenlibraryassetACT500012011enea1b6b25-a62a-4074-927d-

ba51e88df2e9act500012011enpdf 97

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010 98

httpusersrcncommwooddeathpenhtml 99

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 100

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 101

httpwwwunorgdocumentsecosocdocs1995e1995-78htm

UNHRC 27 of 44

murder rape or even robbery States also use the death penalty against individuals who are guilty

of treason The issue however is that many states practicing the death penalty impose the

punishment even when the crimes do not meet the threshold for the aforementioned most

seriouslsquo crimes The ability of states to define what constitutes as a capital crime has led to states

abusing their powers as has been observed in the sentences ordained by military courts

Moreover even the radicals who make the argument of the punishment fitting the crime agree

that in many instances individuals have been executed for softlsquo crimes crimes that were

certainly not tantamount to charges of murder or crimes against humanity The issue of apparent

violations of human rights is further exacerbated in these instances The study guide will discuss

the universal crimes that have resulted in the awarding of the death penalty and examine the

issue further The committee will be expected to discuss the feasibility of drawing up an

international definition of crimes which in isolated instances perhaps may be appropriate for a

sentence like the death penalty

Another pertinent aspect surrounding the debate is that of extrajudicial killings The execution of

a person by state authorities without the authority of a judicial proceeding is termed as an

extrajudicial killing Many states have used extrajudicial killings to establish their authority and

order without having to wade through the legal process By doing so they have deprived scores

of people of their fundamental right to free and fair trials Governments have also employed this

tactic to exercise political aggression and to suppress dissent A particular point of concern is the

fact that some states have made use of these killings even when they have officially revoked the

imposition of the death penalty Extrajudicial killings are carried out persistently in many

countries ndash the list includes countries like Iran Iraq Israel Philippines102

Most recently the

killing of Anwar al-Awlaki and Samir Khan in Yemen by a sanctioned National Security Council

move by the USA was an example of states embarking on such paths to eliminate threats to

national securitylsquo103

102

Multiple citations for each country can be found in the second paragraph article titled Extrajudicial killinglsquo on

Wikipedia 103

httpwwwtelegraphcouknewsworldnewsbarackobama7564581Barack-Obama-orders-killing-of-US-cleric-

Anwar-al-Awlakihtml

UNHRC 28 of 44

Wrongful convictions lead many to believe in the inherent incapacity of the death penalty to

serve justice On September 21 2011 US citizen Troy Davis was executed in Georgia after

which seven of the nine witnesses who testified against him in the case that led to his execution

recounted or retracted their evidences A petition with nearly one million signatures was put

forth to reconsider his case it was rejected On the same day a 17 year old boy was publicly

hanged in Iran for killing a popular athlete his justification based on self-defense was ignored

Also on the same day a Pakistani national was executed in China on grounds of drug trafficking

an offence that does not often result in capital punishment The need for the resolution of this

issue is pressing and the committee needs to deal with all aspects of the problem in a

comprehensive and enduring manner104

Capital Punishment

In 2010 23 countries implemented capital punishment A total of 527 executions (plus the 1000+

carried out in China alone) were known to have taken place with Iran Yemen USA and North

Korea meting out a significant number of sentences105

The figure is lower than the records

computed for years past There are more states which are now abolitionist either in law or in

practice with regard to the imposition of the punishment Gabon was officially the last country

to rescind the practice while bills calling for an end to capital punishment have been presented

to parliaments in Lebanon Mali Mongolia and South Korea106

Renewed efforts are

104

httpwwwamnestyorgennews-and-updatesus-executes-death-row-prisoner-troy-davis-2011-09-21 105

httpwwwguardiancouknewsdatablog2011mar29death-penalty-countries-world 106

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010

UNHRC 29 of 44

simultaneously being made on the international front to implement laws against capital

punishment A third resolution establishing a moratorium on the use of death penalty passed the

UN General Assembly on December 21 2010107

Despite the increasing momentum towards an eventual elimination of the practice the number of

executions taking place annually is a cause of major concern Advocates of the death penalty

assert that the practice is an effective means of deterring crime in society Public executions are

often held in Iran Afghanistan and Palestine for example to demonstrate the fate awaiting

those who commit similar crimes108

Arguments are made on the grounds of justice that it is

proper and fair to take an eye for an eye and a life for a life and that some individuals deserve

it for the crimes they commit

Those opposing the practice question the morality of an action sanctioned by the state which

endorses deprivation of the right to life a fundamental human right under the Universal

Declaration of Human Rights109

There are inescapable flaws within legal systems which are

aggravated by discrimination prosecutorial misconduct and inadequate legal representation

Moreover the risk of executing the innocent can never be eliminated110

An alternative is

presented in the form of imprisonment for life without parole which results in a parallel debate

is imprisonment for life a viable surrogate to the practice of death penalty A thread from this

debate also relates to the economic feasibility of carrying out a death sentence as opposed to the

feasibility of imprisonment for life

Deterrence

Capital punishment is often propagated as an adequate approach in the deterrence and prevention

of crime The logic is that if murderers are sentenced to death potential murderers will think

twice before killing for fear of losing their own life The deterrence theory presumes that the

once the punishment for a certain crime is established the criminal by committing the crime

voluntarily assumes the risk of receiving the prescribed punishment for the crime Only when the

most severe punishment has been set will there be a possibility of an individual evaluating their

actions in light of the consequences111

107

httpwwwundemocracycomA-RES-62-149pdf 108

httpwwwamnestyorgennews-and-updatessharp-rise-public-executions-iran-executes-first-juvenile-

offenders-2011-2011-04-27 109

wwwunorgendocumentsudhr 110

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 111

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 30 of 44

The death penalty it is asserted ensures that convicted criminals do not offend again moreover

it is deemed to be a just penalty for atrocious crimes It is further alleged that many criminals

who are set free even after lengthy sentences regress and go on to commit heinous crimes

Therefore there should never be the possibility of a release clause112

The deterrence theory is modeled on the grounds of human psychology logic and rationale As a

professor of jurisprudence Ernest van den Haag PhD wrote ―Common sense lately bolstered

by statistics tells us that the death penalty will deter murder if anything can People fear nothing

more than death Therefore nothing will deter a criminal more than the fear of death These

statements were further validated by a US Supreme Court Justice who said on record that

Prima facie the penalty of death is likely to have a stronger effect as a deterrent to normal

human beings than any other form of punishmentlsquo113

Numerous studies have been conducted on

the subject with varying results One of the most established studies was conducted in USA

using a panel data set of over 3000 counties from 1977 to 1996 which concluded that on

average one death sentence resulted in 18 fewer murders114

Delegates will be expected to be

familiar with other similar studies

These studies are commonly refuted as not crediblelsquo by opponents of the capital punishment

who also deny the correlation between crime and death penalty as a fabricated relationship which

cannot be empirically established115116

A study of the relationship between capital punishment

and the incidence of murder was conducted for the UN in 1988 and updated in 2002 The

conclusion was ―The investigation has not provided scientific proof that executions have more

deterrent effect than life imprisonment It is unlikely that such evidence will ever come

Deterrence hypothesis finds no support in the survey117

Another counter-argument asserts that crime is still a persistent feature of the societies that

continue to award the death penalty while many of the abolitionist states enjoy low crime rates

This can be evidenced by comparing the crime rate in USA or Pakistan with that of Canada or

some European state In Canada for example the homicide rate per 100000 fell from a peak of

309 in 1975 the year before the abolition of the death penalty for murder to 241 in 1980 and

in 2003 27 years after abolition the homicide rate was 173 per 100000 44 per cent lower than

in 1975118

112

httpwwwdeathpenaltyinfoorgfacts-about-deterrence-and-death-penalty 113

httpdeathpenaltyproconorgviewresourcephpresourceID=002000 114

httpdeathpenaltyproconorgsourcefilesThe20Deterrent20Effect20of20Capital20Punishmentpdf ndash

Delegates should carefully examine certain parts of this document to establish the credibility of the assertions made

They should also invest in trying to locate studies that refute the assertions made in this and similar studies 115

httpwwwdeathpenaltyinfoorglaw-enforcement-views-deterrencelawenforcement 116

httpwwwdeathpenaltyinfoorgDonohueDeterpdf 117

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 118

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml

UNHRC 31 of 44

The lack of evidence on the production of a unique deterrent effect points to the danger of

relying on the deterrence hypothesis as a basis for public policy on the death penalty

Retribution amp Morality

An important terminology that delegates need to familiarize themselves with is that of

―retributivism119

It is defined as ―a policy of criminal justice that sponsors the punishment of

criminals in retribution for the harm they have inflicted120

Criminals deserve to be punished in

proportion to the gravity of their crime regardless of whether the victim or anyone else desires

it we may all deeply regret having to carry out the punishment but consider it warrantedlsquo is

what many say in defense of the theory121

The need for the establishment of a visibly just state arises from the potential risks of not having

one As has been visible in many developing countries with shaky legal systems when criminals

are not adequately punished for their unlawful behavior the public takes the law into its own

hands and deals out vigilante justice It is asserted that retributivism is essential for a functioning

society where individuals respect the supremacy of law

The concept of retribution in society is also grounded in religious beliefs The concept of an eye

for an eye has been a part of all three Abrahamic traditions However in the modern world it is

Islamic nations that still retain the practice based on these grounds Similar traditions can be

found in Hinduism Christianity and Buddhism as well as other religions in different parts of the

world In many non-secular countries the constitutions and state laws are derived from religious

doctrines

Opponents dismiss this aspect of the argument as being emotionally charged with little rational

logic to support the contention They claim that the establishment of capital punishment gives

birth to a culture of violence endorsed by the state It perpetuates the cycle of aggression and

brutality something which the state should be actively inhibiting not endorsing

Wrongful Convictions

The death penalty carries with it the danger of wrongfully convicting an innocent person for

crimes he did not commit There is the potential for capital punishment to evolve into sheer

miscarriage of justice as in certain circumstances states are often seen to rush the trials and

convict the accused hastily This practice takes foremost apparently in military courts often in

119

Cavadino M amp Dignan J (1997) The Penal System An Introduction (2nd ed) p 39 London Sage 120

httpdictionaryreferencecombrowseretributivism 121

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 32 of 44

the developing or lesser-developed countries where the system of law is not properly established

It is not however exclusive to these countries Examples can be drawn from countries like

Philippines Thailand Iran and Palestine to name just a few where executions are carried out at

alarming pace removing the possibility of reviews

On 15 August 2004 Atefah Rajabi Sahaaleh was hanged in a public square in the Iranian city of

Neka Her death sentence was imposed for adultery and crimes against chastity122123

Atefah

was executed a week after the trial was run Following the execution the Judge for the case was

arrested for investigation by the Intelligence Ministry The media reported that in addition to the

confession of his rape of Atefeh Judge Rezai who served as judge jury and executioner also

confessed to torturing her during interrogations to extract names of others she had relations with

No transcripts from court proceedings were recorded The State alleged that Atefah was 22 at the

time of her execution A witness later claimed The judge just looked at her body because of

the developed physique and declared her as 22124

ndash her birth certificate revealed she was born

in 1988 Furthermore Atefah did not have access to a proper defense where she could contest

charges leveled against her This is one example of many such cases of miscarriage of justice

Something that recurs in these cases is the failure of the police or prosecuting authorities to

prevent the use of unreliable witnesses the misuse of evidence or confessions and the provision

of inadequate defense representation The advent of DNA profiling and the use of it as positive

evidence in criminal cases has resulted in the exoneration of multiple death row inmates on

grounds of forensic evidence or lack thereof Since 1973 138 people have been released from

death row in the United States after it was proven that they were innocent125

In 2009 Paul

House was cleared of murder and exonerated in Tennessee USA after having served 22 years

on death row His innocence was proclaimed in light of substantial additional DNA testing and

further investigationlsquo 126

Amnesty International has noted examples of wrongful convictions from elsewhere as well

including Jamaica Japan China Nigeria and Tanzania127

Paul G Cassell a former law clerk to

the Chief Justice of USA stated the mistaken release of guilty murderers should be of far greater

concern than the speculative and heretofore nonexistent risk of the mistaken execution of an

innocent personlsquo highlighting the case made by those who advocate the death penalty even in

light of wrongful convictions128

122

httpwwwcosmolearningcomdocumentariesexecution-of-a-teenage-girl1 123

httpnewsbbccouk2hi5217424stm 124

httpnewsbbccouk2hi5217424stm 125

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 126

httparticlescnncom2009-05-13justicetennesseeexonerated_1_death-row-inmate-dna-evidence-house-

arrest_s=PMCRIME 127

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 128

httpdeathpenaltycurriculumorgstudentcaboutargumentstestimony3bhtm

UNHRC 33 of 44

Alternative to Death Penalty

All abolitionist states have reverted to the practice of sentencing criminals to life imprisonment

(some without parole) which is also termed as death by incarceration Widely regarded as a more

humane course of action life imprisonment is also alleged to be a more economical practice

While ensuring public safety by keeping criminals away from society this system also saves the

lives of innocent people who have been falsely or wrongfully convicted The setup inhibits and

curbs the cycle of violence while retaining the deterrence factor it is strongly asserted

Advocates for the death penalty are averse towards life imprisonment for a number of reasons

They cite the unreliability of the system as one of the flaws which impedes the possibility of

such a sentence being successful A certain James Moore serves as a valid example in this case

In 1962 James Moore raped and strangled 14-year-old Pamela Moss The victimlsquos parents opted

out of capital punishment for Moore and he was instead sentenced to life in prison without

parole Twenty years later a change in sentencing laws in 1982 renders James Moore eligible for

parole every two years129130

Kenneth McDuff is another example McDuff was convicted and sentenced to life imprisonment

Years later due to the issue of overcrowding in prisons McDuff was released following which

he killed eight more people McDufflsquos example is of an individual from a developed country

with an established legal system in place131

Overcrowding is a feature of prisons in developing

or lesser developed countries In many such states criminals have also been known to easily

break out from penitentiaries

The economic aspect of the debate is murky at best There is a lack of empirical data on the

subject which is why the arguments of both these sides cannot be settled beyond doubt

Advocates of capital punishment insist that the overall costs of the practice are far lesser than the

costs of housing an inmate for a lifetime132

They also suggest that the life imprisonment allows

criminals to conceive new habeas corpus petitions which on legal grounds cannot be rejected

automatically resulting in more trials

On the other hand substantial arguments are made which stress that the cost of legal proceedings

in capital cases is in truth more than that of other cases States and nations spend a significant

portion of the taxpayerlsquos money in meting out such punishments133

Delegates when addressing

this portion of the debate will need to be aware of the financial aspects of the issue as it forms

for many states an important part of whether capital punishment should be revoked or

not

129

httpwesleylowecomcphtmldeter 130

httpwwwnytimescomkeywordparole 131

httpwesleylowecomcphtmldeter 132

Ibid ndash view section titled Capital Punishment and its costslsquo 133

httpwwwamnestyusaorgour-workissuesdeath-penaltyus-death-penalty-factsdeath-penalty-cost

UNHRC 34 of 44

Imposition of Death Penalty on Juveniles

The prohibition on the death penalty for crimes committed by juvenile offendersmdashpersons under

age 18 at the time of the offensemdashis well established in international law specifically in the

Convention on the Rights of Child

ldquoNo child shall be subjected to torture or other cruel inhuman or degrading treatment or

punishment Neither capital punishment nor life imprisonment without possibility of release shall

be imposed for offences committed by persons below eighteen years of agerdquo134

- Article 37(a) Convention on the Rights of Child

ldquoSentence of death shall not be imposed for crimes committed by persons below eighteen years

of age and shall not be carried out on pregnant womenrdquo135

- Article 6(5) International Covenant on Civil and Political Rights

The treaties are a unanimously agreed set of non-negotiable standards and obligations By

acceding to the treaties and ratifying them governments commit to protecting and ensuring

childrens rights and to holding themselves accountable for this commitment before the

international community

Even though the practice of capital punishment on juveniles is relatively rare however in clear

contravention of international law nine countries have executed offenders who were juveniles at

the time of their crimes between 1990 and 2005136

These countries include the Peoples Republic

of China (PRC) the Democratic Republic of the Congo Iran Nigeria Pakistan Saudi Arabia

Sudan the United States and Yemen137

The USA has since moved to implement a ban on capital

punishment for juveniles However in most other countries of the preceding list the practice is

still enshrined in the judicial system Iranlsquos record in particular has been abominable over the last

decade It has carried out 39 executions of persons under the age of 18 since 2005 Presently

over a hundred individuals are placed on death row for crimes committed as juveniles The

executions of Mahmoud Asgari Ayaz Marhoni and Makwan Moloudzadeh became international

symbols of Irans child capital punishment and the judicial system that hands down such

134

httpwww2ohchrorgenglishlawcrchtm 135

httpwww2ohchrorgenglishlawccprhtm 136

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf - This document by the Human Rights Watch

called The Last Holdoutslsquo is a good summary of juvenile executions and should be reviewed 137

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 - Contains a list with

statistics and details of countries which have allowed the imposition of death sentence to juveniles

UNHRC 35 of 44

sentences138139140

Saudi Arabia and China too have questionable records that need to be

scrutinized further

While regional treaties and charters usually substantiate international law the Arab Human

Rights Charter of 2004 is unique among regional and international treaties in that the ban on the

juvenile death penalty in it is not absolute but merely optional141

Furthermore national laws in states that observe such a practice are in violation of

international legally-binding charters In Iran and Saudi Arabia laws usually treat a child the

same way as an adult criminal offender would be treated Article 10(3) of the International

Covenant on Civil and Political Rights emphasizes the need for demarcation between the

handling of children and that of adults in stating ―Juvenile offenders shall be segregated from

adults and be accorded treatment appropriate to their age and legal status142

The definition of a child in these Muslim states is unclear as adulthood is associated with

attainment of puberty which is a relative concept The Committee on the Rights of the Child in

January 2005 censured the Saudi government for its practice of imposing the death penalty on

juveniles terming it a serious violation of the fundamental rights The committee was deeply

alarmed over the discretionary power judges hold to treat juveniles as adults as was stated in

the committeelsquos report Iran too was strongly condemned following the release of an

international report highlighting the dire situation in Iran by the International for Human Rights 143

138

httpwwwfoxnewscomstory0293329798200html 139

httpnewsbbccouk2himiddle_east7130380stm 140

httpenwikipediaorgwikiCapital_punishmentIran 141

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 142

httpwww2ohchrorgenglishlawccprhtm 143

httpwwwfidhorgIMGpdfRapport_Iran_finalpdf

UNHRC 36 of 44

On August 19 2008 Iranian authorities executed Seyyed Reza Hejazi at Isfahan Central Prison

for his role in a murder committed in 2003 when he was 15 Hejazi was tried as an adult by

Branch 106 of the Isfahan General Court even if he did not qualify as one under international

stipulations and sentenced to death on November 14 2005144

In Saudi Arabia Mu`id bin

Husayn bin Abu al-Qasim bin `Ali Hakami was executed on July 10 2007 for a murder he

allegedly committed three years earlier when he was 13 years old145

The judges in these states

because of the implementation of the Sharialsquo law have a large amount of discretion with regard

to their rulings This discretion is often abused in the interrogation and judicial proceedings In

Pakistan authorities hanged Mutaber Khan in Peshawar Central Prison on June 13 2006 on

charges of murder of five people The fact that he was held in the juvenile wing of Peshawar

Central prison and the evidence presented by the accused confirming that his age was below 18

at the time of the killings were not taken into account during the trials and Mutaber was charged

as an adult in the case146

While the above does not cover exhaustively the practice of capitally punishing juveniles the

committee is expected to be well read on the matter The committee will be required to devise

ways to strictly apply the existing international law on the subject to curtail further deaths of

juveniles by states A series of recommendations on better implementation of international

covenants will be expected from the committee Delegates at UNHRC will also have to

familiarize themselves with the stipulations in the national laws of countries practicing juvenile

death penalties (Iran Saudi Arabia Pakistan Nigeria Sudan Yemen and UAE among others) to

discuss how these states are constitutionally able to bend international law and mete out the

illegal punishments

144

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 145

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 146

See FIDH and Human Rights Commission of Pakistan ―Slow march to the gallows and ―Condemned Prisoner

Executed Dawn Newspaper Karachi June 14 2005 httpwwwdawncom20060614nat16htm

UNHRC 37 of 44

Universality of Laws Incurring the Death Penalty

In countries which have not abolished the death penalty capital punishment may be imposed

only for the most serious crimes it being understood that their scope should not go beyond

intentional crimes with lethal or other extremely grave consequences

- Safeguards guaranteeing protection of the rights of those facing the death penalty147

Laws incurring the death penalty or capital crimes have certain uniformity the world over This

is of course barring states that are religiously affiliated and whose law systems are not secular

in nature The list of capital crimes for those states with non-secular legal systems is slightly

different The Human Rights Commission had decided that the imposition in the State party of

the death penalty for offences which cannot be characterized as the most serious including

apostasy committing a third homosexual act illicit sex embezzlement by officials and theft by

force are incompatible with Article 6 of the Covenant Economic offences including

embezzlement drug related offences political offences and robbery were also referred to148

The reason why looking into capital crimes and trying to garner a global impression of them is

important is that the death penalty can only realistically be abolished in a piecemeal way This

process will entail shortening the list of capital crimes The UN formally notes that ―in order

fully to guarantee the right to life provided for in article 3 of the Universal Declaration of

Human Rights the main objective to be pursued is that of progressively restricting the number of

offences for which capital punishment may be imposed with a view to the desirability of

abolishing this punishment in all countries149

The first established death penalty laws date as far back as the Eighteenth Century BC in the

Code of King Hammaurabi of Babylon which codified the death penalty for 25 different crimes

By the 1700s 222 crimes were punishable by death in Britain including stealing cutting down a

tree and robbing a rabbit warren In the 19th

century the death penalty was eliminated for over

100 of the 222 crimes punishable by death 150

In modern times the UN Special Rapporteur on

extrajudicial summary or arbitrary executions has stated that the death penalty should be

eliminated for economic crimes and drug-related offences and that the restrictions to its use

―exclude the possibility of death sentences for so-called victimless offences ndash including acts of

treason espionage and other vaguely defined acts usually described as crimes against the Statelsquo

or disloyaltylsquo and ―actions primarily related to prevailing moral values such as adultery and

prostitution as well as matters of sexual orientation151

147

httpwww2ohchrorgenglishlawpdfprotectionpdf 148

httpwwwunhchrchtbsdocnsf0bc310a747155dff88025655300537faeOpendocument 149

General Assembly resolution 2857 httpwwwunodcorgpdfcompendiumcompendium_2006_part_01_05pdf 150

httpdeathpenaltycurriculumorgstudentcabouthistoryhistoryPDF 151

httpswwwabofimedia24259report10pdf

UNHRC 38 of 44

Contrary to the made recommendations even political dissent warrants a death sentence in

several countries most notably in China and Iran In 2010 nearly 20 Kurdish people were

executed for political offences in Iran The country is known for keeping dissent especially from

the Kurds suppressed Most are executed on the grounds of moharebeh or enmity against God

Moreover challenging the power of the Ayatollah is also punishable by death These charges are

neither explicit nor in line with international guidelines over what crimes are punishable

capitally In Iran judges must handle such cases carefully as Iranian law provides for only one

punishment if an individual is found to be guilty of treason Libya too thwarts political dissent

with firm laws in place for punishing by death those who illegally form groups organizations or

associations against the state152

Saudi Arabia too is worth note for its vaguely phrased laws governing capital punishment

Intentional murder and crimes that spread ―mischief in the land (Fasad fil-ardh) merit death In

2010 the government announced that it had executed 26 people all by beheading Crimes that

―spread mischief include witchcraft and sorcery153

How is one convicted of witchcraft in the

21st century What can the international community do when regarding countries such as these

Treason arguably along with murder is the capital crime that has yet to be phased out by many

countries In some such as Brazil treason during warfare is the only crime for which a person

can be sentenced to death In the Gaza Strip under Hamas any sort of cooperation with Israeli

forces during military actions is also punishable by death In others including Algeria Bahrain

Iran and Malaysia treason is punishable by death in all circumstances The United States too has

federal laws governing treason under which traitors ―shall suffer death154

Child sex abuse is another crime that is widely held to merit the death penalty In Russia for

example according to the Russian Public Opinion Research Center an overwhelming majority

consider the death penalty to be an acceptable punishment especially in relation to molestation

155 In 2009 however Russias Constitutional Court effectively abolished the death penalty by

extending indefinitely a 13-year-old moratorium on capital punishment156

Indonesia has some of the strictest penalties for drug related crimes in the world Roughly half of

those on death row are incriminated with drug-related charges157

In 2008 though the most high

profile executions were of terrorists Three of those found responsible for the 2002 Bali

bombings were executed by shooting158

Generally speaking however a significant proportion of

152

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 153

httpwwwstategovgdrlrlshrrpt2010nea154472htm 154

httpdeathpenaltyproconorgviewresourcephpresourceID=1172 155

httpenrianrutrenddeath_penalty 156

httpwwwreuterscomarticle20091119idUSLJ330478 157

httpwwwnytimescom20080711worldasia11iht-indo114421132html 158

httpnewsbbccouk2hiasia-pacific7718246stm

UNHRC 39 of 44

the executions or death sentences recorded (in 2010) in China Egypt Indonesia Iran Laos

Libya Thailand United Arab Emirates and Yemen were for drug-related offences In December

2010 the amended Anti-Narcotics law came into force in Iran extending the scope of the death

penalty to include additional categories of illegal drugs (for example crystal meth) possession

of which became punishable by death Also around the same time the National Assembly of

Gambia voted to extend the scope of the death penalty by making the possession of more than

250g of heroin or cocaine an offence punishable by death159

Several states allow for the death penalty for crimes of blasphemy and other crimes for

nonviolent expression and association In Pakistan Aasia Bibi a Christian mother of five was

charged with blasphemy and sentenced to death after a trial largely believed to be unfair on 8

November 2010 She is currently on death row The country is also noted for its laws concerning

capital crimes The list includes 27 crimes most of which go beyond the notion of ―most serious

crimes as recommended by the International Covenant on Civil and Political Rights Extra-

marital sex and blasphemy are examples of some capital crimes in the country In December

2007 Pakistan voted against a United Nation General Assembly resolution for a moratorium on

the death penalty The year before however the nation amended its law on rape and adultery

charges which are no longer punishable by death160

As far back as 1989 recommendations have been made as to how to abolish the death penalty

Member states (of the UN) have been urged ―to publish for each category of offence for which

the death penalty is authorized and if possible on an annual basis information about the use of

the death penalty including the number of persons sentenced to death the number of executions

actually carried out the number of persons under sentence of death the number of death

sentences reversed or commuted on appeal and the number of instances in which clemency has

been granted and to include information on the extent to which the safeguards referred to above

are incorporated in national law161

The committee must inspect how far this recommendation

has been adopted and should seek to rectify the weaknesses in the system of gradually

abolishing the death penalty Can a target year be designated by which crimes meriting the death

penalty could be made universal How can countries with non-secular legal systems be brought

into the fold of international law

159

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 160

httpwwwfiacatorgenIMGpdfdppakistan-enpdf 161

httpgraduateinstitutechfacultyclaphamhrdocdocsecosocresolutiondeathpen1989html

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 31: UNHRCFINAL

UNHRC 27 of 44

murder rape or even robbery States also use the death penalty against individuals who are guilty

of treason The issue however is that many states practicing the death penalty impose the

punishment even when the crimes do not meet the threshold for the aforementioned most

seriouslsquo crimes The ability of states to define what constitutes as a capital crime has led to states

abusing their powers as has been observed in the sentences ordained by military courts

Moreover even the radicals who make the argument of the punishment fitting the crime agree

that in many instances individuals have been executed for softlsquo crimes crimes that were

certainly not tantamount to charges of murder or crimes against humanity The issue of apparent

violations of human rights is further exacerbated in these instances The study guide will discuss

the universal crimes that have resulted in the awarding of the death penalty and examine the

issue further The committee will be expected to discuss the feasibility of drawing up an

international definition of crimes which in isolated instances perhaps may be appropriate for a

sentence like the death penalty

Another pertinent aspect surrounding the debate is that of extrajudicial killings The execution of

a person by state authorities without the authority of a judicial proceeding is termed as an

extrajudicial killing Many states have used extrajudicial killings to establish their authority and

order without having to wade through the legal process By doing so they have deprived scores

of people of their fundamental right to free and fair trials Governments have also employed this

tactic to exercise political aggression and to suppress dissent A particular point of concern is the

fact that some states have made use of these killings even when they have officially revoked the

imposition of the death penalty Extrajudicial killings are carried out persistently in many

countries ndash the list includes countries like Iran Iraq Israel Philippines102

Most recently the

killing of Anwar al-Awlaki and Samir Khan in Yemen by a sanctioned National Security Council

move by the USA was an example of states embarking on such paths to eliminate threats to

national securitylsquo103

102

Multiple citations for each country can be found in the second paragraph article titled Extrajudicial killinglsquo on

Wikipedia 103

httpwwwtelegraphcouknewsworldnewsbarackobama7564581Barack-Obama-orders-killing-of-US-cleric-

Anwar-al-Awlakihtml

UNHRC 28 of 44

Wrongful convictions lead many to believe in the inherent incapacity of the death penalty to

serve justice On September 21 2011 US citizen Troy Davis was executed in Georgia after

which seven of the nine witnesses who testified against him in the case that led to his execution

recounted or retracted their evidences A petition with nearly one million signatures was put

forth to reconsider his case it was rejected On the same day a 17 year old boy was publicly

hanged in Iran for killing a popular athlete his justification based on self-defense was ignored

Also on the same day a Pakistani national was executed in China on grounds of drug trafficking

an offence that does not often result in capital punishment The need for the resolution of this

issue is pressing and the committee needs to deal with all aspects of the problem in a

comprehensive and enduring manner104

Capital Punishment

In 2010 23 countries implemented capital punishment A total of 527 executions (plus the 1000+

carried out in China alone) were known to have taken place with Iran Yemen USA and North

Korea meting out a significant number of sentences105

The figure is lower than the records

computed for years past There are more states which are now abolitionist either in law or in

practice with regard to the imposition of the punishment Gabon was officially the last country

to rescind the practice while bills calling for an end to capital punishment have been presented

to parliaments in Lebanon Mali Mongolia and South Korea106

Renewed efforts are

104

httpwwwamnestyorgennews-and-updatesus-executes-death-row-prisoner-troy-davis-2011-09-21 105

httpwwwguardiancouknewsdatablog2011mar29death-penalty-countries-world 106

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010

UNHRC 29 of 44

simultaneously being made on the international front to implement laws against capital

punishment A third resolution establishing a moratorium on the use of death penalty passed the

UN General Assembly on December 21 2010107

Despite the increasing momentum towards an eventual elimination of the practice the number of

executions taking place annually is a cause of major concern Advocates of the death penalty

assert that the practice is an effective means of deterring crime in society Public executions are

often held in Iran Afghanistan and Palestine for example to demonstrate the fate awaiting

those who commit similar crimes108

Arguments are made on the grounds of justice that it is

proper and fair to take an eye for an eye and a life for a life and that some individuals deserve

it for the crimes they commit

Those opposing the practice question the morality of an action sanctioned by the state which

endorses deprivation of the right to life a fundamental human right under the Universal

Declaration of Human Rights109

There are inescapable flaws within legal systems which are

aggravated by discrimination prosecutorial misconduct and inadequate legal representation

Moreover the risk of executing the innocent can never be eliminated110

An alternative is

presented in the form of imprisonment for life without parole which results in a parallel debate

is imprisonment for life a viable surrogate to the practice of death penalty A thread from this

debate also relates to the economic feasibility of carrying out a death sentence as opposed to the

feasibility of imprisonment for life

Deterrence

Capital punishment is often propagated as an adequate approach in the deterrence and prevention

of crime The logic is that if murderers are sentenced to death potential murderers will think

twice before killing for fear of losing their own life The deterrence theory presumes that the

once the punishment for a certain crime is established the criminal by committing the crime

voluntarily assumes the risk of receiving the prescribed punishment for the crime Only when the

most severe punishment has been set will there be a possibility of an individual evaluating their

actions in light of the consequences111

107

httpwwwundemocracycomA-RES-62-149pdf 108

httpwwwamnestyorgennews-and-updatessharp-rise-public-executions-iran-executes-first-juvenile-

offenders-2011-2011-04-27 109

wwwunorgendocumentsudhr 110

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 111

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 30 of 44

The death penalty it is asserted ensures that convicted criminals do not offend again moreover

it is deemed to be a just penalty for atrocious crimes It is further alleged that many criminals

who are set free even after lengthy sentences regress and go on to commit heinous crimes

Therefore there should never be the possibility of a release clause112

The deterrence theory is modeled on the grounds of human psychology logic and rationale As a

professor of jurisprudence Ernest van den Haag PhD wrote ―Common sense lately bolstered

by statistics tells us that the death penalty will deter murder if anything can People fear nothing

more than death Therefore nothing will deter a criminal more than the fear of death These

statements were further validated by a US Supreme Court Justice who said on record that

Prima facie the penalty of death is likely to have a stronger effect as a deterrent to normal

human beings than any other form of punishmentlsquo113

Numerous studies have been conducted on

the subject with varying results One of the most established studies was conducted in USA

using a panel data set of over 3000 counties from 1977 to 1996 which concluded that on

average one death sentence resulted in 18 fewer murders114

Delegates will be expected to be

familiar with other similar studies

These studies are commonly refuted as not crediblelsquo by opponents of the capital punishment

who also deny the correlation between crime and death penalty as a fabricated relationship which

cannot be empirically established115116

A study of the relationship between capital punishment

and the incidence of murder was conducted for the UN in 1988 and updated in 2002 The

conclusion was ―The investigation has not provided scientific proof that executions have more

deterrent effect than life imprisonment It is unlikely that such evidence will ever come

Deterrence hypothesis finds no support in the survey117

Another counter-argument asserts that crime is still a persistent feature of the societies that

continue to award the death penalty while many of the abolitionist states enjoy low crime rates

This can be evidenced by comparing the crime rate in USA or Pakistan with that of Canada or

some European state In Canada for example the homicide rate per 100000 fell from a peak of

309 in 1975 the year before the abolition of the death penalty for murder to 241 in 1980 and

in 2003 27 years after abolition the homicide rate was 173 per 100000 44 per cent lower than

in 1975118

112

httpwwwdeathpenaltyinfoorgfacts-about-deterrence-and-death-penalty 113

httpdeathpenaltyproconorgviewresourcephpresourceID=002000 114

httpdeathpenaltyproconorgsourcefilesThe20Deterrent20Effect20of20Capital20Punishmentpdf ndash

Delegates should carefully examine certain parts of this document to establish the credibility of the assertions made

They should also invest in trying to locate studies that refute the assertions made in this and similar studies 115

httpwwwdeathpenaltyinfoorglaw-enforcement-views-deterrencelawenforcement 116

httpwwwdeathpenaltyinfoorgDonohueDeterpdf 117

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 118

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml

UNHRC 31 of 44

The lack of evidence on the production of a unique deterrent effect points to the danger of

relying on the deterrence hypothesis as a basis for public policy on the death penalty

Retribution amp Morality

An important terminology that delegates need to familiarize themselves with is that of

―retributivism119

It is defined as ―a policy of criminal justice that sponsors the punishment of

criminals in retribution for the harm they have inflicted120

Criminals deserve to be punished in

proportion to the gravity of their crime regardless of whether the victim or anyone else desires

it we may all deeply regret having to carry out the punishment but consider it warrantedlsquo is

what many say in defense of the theory121

The need for the establishment of a visibly just state arises from the potential risks of not having

one As has been visible in many developing countries with shaky legal systems when criminals

are not adequately punished for their unlawful behavior the public takes the law into its own

hands and deals out vigilante justice It is asserted that retributivism is essential for a functioning

society where individuals respect the supremacy of law

The concept of retribution in society is also grounded in religious beliefs The concept of an eye

for an eye has been a part of all three Abrahamic traditions However in the modern world it is

Islamic nations that still retain the practice based on these grounds Similar traditions can be

found in Hinduism Christianity and Buddhism as well as other religions in different parts of the

world In many non-secular countries the constitutions and state laws are derived from religious

doctrines

Opponents dismiss this aspect of the argument as being emotionally charged with little rational

logic to support the contention They claim that the establishment of capital punishment gives

birth to a culture of violence endorsed by the state It perpetuates the cycle of aggression and

brutality something which the state should be actively inhibiting not endorsing

Wrongful Convictions

The death penalty carries with it the danger of wrongfully convicting an innocent person for

crimes he did not commit There is the potential for capital punishment to evolve into sheer

miscarriage of justice as in certain circumstances states are often seen to rush the trials and

convict the accused hastily This practice takes foremost apparently in military courts often in

119

Cavadino M amp Dignan J (1997) The Penal System An Introduction (2nd ed) p 39 London Sage 120

httpdictionaryreferencecombrowseretributivism 121

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 32 of 44

the developing or lesser-developed countries where the system of law is not properly established

It is not however exclusive to these countries Examples can be drawn from countries like

Philippines Thailand Iran and Palestine to name just a few where executions are carried out at

alarming pace removing the possibility of reviews

On 15 August 2004 Atefah Rajabi Sahaaleh was hanged in a public square in the Iranian city of

Neka Her death sentence was imposed for adultery and crimes against chastity122123

Atefah

was executed a week after the trial was run Following the execution the Judge for the case was

arrested for investigation by the Intelligence Ministry The media reported that in addition to the

confession of his rape of Atefeh Judge Rezai who served as judge jury and executioner also

confessed to torturing her during interrogations to extract names of others she had relations with

No transcripts from court proceedings were recorded The State alleged that Atefah was 22 at the

time of her execution A witness later claimed The judge just looked at her body because of

the developed physique and declared her as 22124

ndash her birth certificate revealed she was born

in 1988 Furthermore Atefah did not have access to a proper defense where she could contest

charges leveled against her This is one example of many such cases of miscarriage of justice

Something that recurs in these cases is the failure of the police or prosecuting authorities to

prevent the use of unreliable witnesses the misuse of evidence or confessions and the provision

of inadequate defense representation The advent of DNA profiling and the use of it as positive

evidence in criminal cases has resulted in the exoneration of multiple death row inmates on

grounds of forensic evidence or lack thereof Since 1973 138 people have been released from

death row in the United States after it was proven that they were innocent125

In 2009 Paul

House was cleared of murder and exonerated in Tennessee USA after having served 22 years

on death row His innocence was proclaimed in light of substantial additional DNA testing and

further investigationlsquo 126

Amnesty International has noted examples of wrongful convictions from elsewhere as well

including Jamaica Japan China Nigeria and Tanzania127

Paul G Cassell a former law clerk to

the Chief Justice of USA stated the mistaken release of guilty murderers should be of far greater

concern than the speculative and heretofore nonexistent risk of the mistaken execution of an

innocent personlsquo highlighting the case made by those who advocate the death penalty even in

light of wrongful convictions128

122

httpwwwcosmolearningcomdocumentariesexecution-of-a-teenage-girl1 123

httpnewsbbccouk2hi5217424stm 124

httpnewsbbccouk2hi5217424stm 125

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 126

httparticlescnncom2009-05-13justicetennesseeexonerated_1_death-row-inmate-dna-evidence-house-

arrest_s=PMCRIME 127

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 128

httpdeathpenaltycurriculumorgstudentcaboutargumentstestimony3bhtm

UNHRC 33 of 44

Alternative to Death Penalty

All abolitionist states have reverted to the practice of sentencing criminals to life imprisonment

(some without parole) which is also termed as death by incarceration Widely regarded as a more

humane course of action life imprisonment is also alleged to be a more economical practice

While ensuring public safety by keeping criminals away from society this system also saves the

lives of innocent people who have been falsely or wrongfully convicted The setup inhibits and

curbs the cycle of violence while retaining the deterrence factor it is strongly asserted

Advocates for the death penalty are averse towards life imprisonment for a number of reasons

They cite the unreliability of the system as one of the flaws which impedes the possibility of

such a sentence being successful A certain James Moore serves as a valid example in this case

In 1962 James Moore raped and strangled 14-year-old Pamela Moss The victimlsquos parents opted

out of capital punishment for Moore and he was instead sentenced to life in prison without

parole Twenty years later a change in sentencing laws in 1982 renders James Moore eligible for

parole every two years129130

Kenneth McDuff is another example McDuff was convicted and sentenced to life imprisonment

Years later due to the issue of overcrowding in prisons McDuff was released following which

he killed eight more people McDufflsquos example is of an individual from a developed country

with an established legal system in place131

Overcrowding is a feature of prisons in developing

or lesser developed countries In many such states criminals have also been known to easily

break out from penitentiaries

The economic aspect of the debate is murky at best There is a lack of empirical data on the

subject which is why the arguments of both these sides cannot be settled beyond doubt

Advocates of capital punishment insist that the overall costs of the practice are far lesser than the

costs of housing an inmate for a lifetime132

They also suggest that the life imprisonment allows

criminals to conceive new habeas corpus petitions which on legal grounds cannot be rejected

automatically resulting in more trials

On the other hand substantial arguments are made which stress that the cost of legal proceedings

in capital cases is in truth more than that of other cases States and nations spend a significant

portion of the taxpayerlsquos money in meting out such punishments133

Delegates when addressing

this portion of the debate will need to be aware of the financial aspects of the issue as it forms

for many states an important part of whether capital punishment should be revoked or

not

129

httpwesleylowecomcphtmldeter 130

httpwwwnytimescomkeywordparole 131

httpwesleylowecomcphtmldeter 132

Ibid ndash view section titled Capital Punishment and its costslsquo 133

httpwwwamnestyusaorgour-workissuesdeath-penaltyus-death-penalty-factsdeath-penalty-cost

UNHRC 34 of 44

Imposition of Death Penalty on Juveniles

The prohibition on the death penalty for crimes committed by juvenile offendersmdashpersons under

age 18 at the time of the offensemdashis well established in international law specifically in the

Convention on the Rights of Child

ldquoNo child shall be subjected to torture or other cruel inhuman or degrading treatment or

punishment Neither capital punishment nor life imprisonment without possibility of release shall

be imposed for offences committed by persons below eighteen years of agerdquo134

- Article 37(a) Convention on the Rights of Child

ldquoSentence of death shall not be imposed for crimes committed by persons below eighteen years

of age and shall not be carried out on pregnant womenrdquo135

- Article 6(5) International Covenant on Civil and Political Rights

The treaties are a unanimously agreed set of non-negotiable standards and obligations By

acceding to the treaties and ratifying them governments commit to protecting and ensuring

childrens rights and to holding themselves accountable for this commitment before the

international community

Even though the practice of capital punishment on juveniles is relatively rare however in clear

contravention of international law nine countries have executed offenders who were juveniles at

the time of their crimes between 1990 and 2005136

These countries include the Peoples Republic

of China (PRC) the Democratic Republic of the Congo Iran Nigeria Pakistan Saudi Arabia

Sudan the United States and Yemen137

The USA has since moved to implement a ban on capital

punishment for juveniles However in most other countries of the preceding list the practice is

still enshrined in the judicial system Iranlsquos record in particular has been abominable over the last

decade It has carried out 39 executions of persons under the age of 18 since 2005 Presently

over a hundred individuals are placed on death row for crimes committed as juveniles The

executions of Mahmoud Asgari Ayaz Marhoni and Makwan Moloudzadeh became international

symbols of Irans child capital punishment and the judicial system that hands down such

134

httpwww2ohchrorgenglishlawcrchtm 135

httpwww2ohchrorgenglishlawccprhtm 136

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf - This document by the Human Rights Watch

called The Last Holdoutslsquo is a good summary of juvenile executions and should be reviewed 137

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 - Contains a list with

statistics and details of countries which have allowed the imposition of death sentence to juveniles

UNHRC 35 of 44

sentences138139140

Saudi Arabia and China too have questionable records that need to be

scrutinized further

While regional treaties and charters usually substantiate international law the Arab Human

Rights Charter of 2004 is unique among regional and international treaties in that the ban on the

juvenile death penalty in it is not absolute but merely optional141

Furthermore national laws in states that observe such a practice are in violation of

international legally-binding charters In Iran and Saudi Arabia laws usually treat a child the

same way as an adult criminal offender would be treated Article 10(3) of the International

Covenant on Civil and Political Rights emphasizes the need for demarcation between the

handling of children and that of adults in stating ―Juvenile offenders shall be segregated from

adults and be accorded treatment appropriate to their age and legal status142

The definition of a child in these Muslim states is unclear as adulthood is associated with

attainment of puberty which is a relative concept The Committee on the Rights of the Child in

January 2005 censured the Saudi government for its practice of imposing the death penalty on

juveniles terming it a serious violation of the fundamental rights The committee was deeply

alarmed over the discretionary power judges hold to treat juveniles as adults as was stated in

the committeelsquos report Iran too was strongly condemned following the release of an

international report highlighting the dire situation in Iran by the International for Human Rights 143

138

httpwwwfoxnewscomstory0293329798200html 139

httpnewsbbccouk2himiddle_east7130380stm 140

httpenwikipediaorgwikiCapital_punishmentIran 141

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 142

httpwww2ohchrorgenglishlawccprhtm 143

httpwwwfidhorgIMGpdfRapport_Iran_finalpdf

UNHRC 36 of 44

On August 19 2008 Iranian authorities executed Seyyed Reza Hejazi at Isfahan Central Prison

for his role in a murder committed in 2003 when he was 15 Hejazi was tried as an adult by

Branch 106 of the Isfahan General Court even if he did not qualify as one under international

stipulations and sentenced to death on November 14 2005144

In Saudi Arabia Mu`id bin

Husayn bin Abu al-Qasim bin `Ali Hakami was executed on July 10 2007 for a murder he

allegedly committed three years earlier when he was 13 years old145

The judges in these states

because of the implementation of the Sharialsquo law have a large amount of discretion with regard

to their rulings This discretion is often abused in the interrogation and judicial proceedings In

Pakistan authorities hanged Mutaber Khan in Peshawar Central Prison on June 13 2006 on

charges of murder of five people The fact that he was held in the juvenile wing of Peshawar

Central prison and the evidence presented by the accused confirming that his age was below 18

at the time of the killings were not taken into account during the trials and Mutaber was charged

as an adult in the case146

While the above does not cover exhaustively the practice of capitally punishing juveniles the

committee is expected to be well read on the matter The committee will be required to devise

ways to strictly apply the existing international law on the subject to curtail further deaths of

juveniles by states A series of recommendations on better implementation of international

covenants will be expected from the committee Delegates at UNHRC will also have to

familiarize themselves with the stipulations in the national laws of countries practicing juvenile

death penalties (Iran Saudi Arabia Pakistan Nigeria Sudan Yemen and UAE among others) to

discuss how these states are constitutionally able to bend international law and mete out the

illegal punishments

144

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 145

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 146

See FIDH and Human Rights Commission of Pakistan ―Slow march to the gallows and ―Condemned Prisoner

Executed Dawn Newspaper Karachi June 14 2005 httpwwwdawncom20060614nat16htm

UNHRC 37 of 44

Universality of Laws Incurring the Death Penalty

In countries which have not abolished the death penalty capital punishment may be imposed

only for the most serious crimes it being understood that their scope should not go beyond

intentional crimes with lethal or other extremely grave consequences

- Safeguards guaranteeing protection of the rights of those facing the death penalty147

Laws incurring the death penalty or capital crimes have certain uniformity the world over This

is of course barring states that are religiously affiliated and whose law systems are not secular

in nature The list of capital crimes for those states with non-secular legal systems is slightly

different The Human Rights Commission had decided that the imposition in the State party of

the death penalty for offences which cannot be characterized as the most serious including

apostasy committing a third homosexual act illicit sex embezzlement by officials and theft by

force are incompatible with Article 6 of the Covenant Economic offences including

embezzlement drug related offences political offences and robbery were also referred to148

The reason why looking into capital crimes and trying to garner a global impression of them is

important is that the death penalty can only realistically be abolished in a piecemeal way This

process will entail shortening the list of capital crimes The UN formally notes that ―in order

fully to guarantee the right to life provided for in article 3 of the Universal Declaration of

Human Rights the main objective to be pursued is that of progressively restricting the number of

offences for which capital punishment may be imposed with a view to the desirability of

abolishing this punishment in all countries149

The first established death penalty laws date as far back as the Eighteenth Century BC in the

Code of King Hammaurabi of Babylon which codified the death penalty for 25 different crimes

By the 1700s 222 crimes were punishable by death in Britain including stealing cutting down a

tree and robbing a rabbit warren In the 19th

century the death penalty was eliminated for over

100 of the 222 crimes punishable by death 150

In modern times the UN Special Rapporteur on

extrajudicial summary or arbitrary executions has stated that the death penalty should be

eliminated for economic crimes and drug-related offences and that the restrictions to its use

―exclude the possibility of death sentences for so-called victimless offences ndash including acts of

treason espionage and other vaguely defined acts usually described as crimes against the Statelsquo

or disloyaltylsquo and ―actions primarily related to prevailing moral values such as adultery and

prostitution as well as matters of sexual orientation151

147

httpwww2ohchrorgenglishlawpdfprotectionpdf 148

httpwwwunhchrchtbsdocnsf0bc310a747155dff88025655300537faeOpendocument 149

General Assembly resolution 2857 httpwwwunodcorgpdfcompendiumcompendium_2006_part_01_05pdf 150

httpdeathpenaltycurriculumorgstudentcabouthistoryhistoryPDF 151

httpswwwabofimedia24259report10pdf

UNHRC 38 of 44

Contrary to the made recommendations even political dissent warrants a death sentence in

several countries most notably in China and Iran In 2010 nearly 20 Kurdish people were

executed for political offences in Iran The country is known for keeping dissent especially from

the Kurds suppressed Most are executed on the grounds of moharebeh or enmity against God

Moreover challenging the power of the Ayatollah is also punishable by death These charges are

neither explicit nor in line with international guidelines over what crimes are punishable

capitally In Iran judges must handle such cases carefully as Iranian law provides for only one

punishment if an individual is found to be guilty of treason Libya too thwarts political dissent

with firm laws in place for punishing by death those who illegally form groups organizations or

associations against the state152

Saudi Arabia too is worth note for its vaguely phrased laws governing capital punishment

Intentional murder and crimes that spread ―mischief in the land (Fasad fil-ardh) merit death In

2010 the government announced that it had executed 26 people all by beheading Crimes that

―spread mischief include witchcraft and sorcery153

How is one convicted of witchcraft in the

21st century What can the international community do when regarding countries such as these

Treason arguably along with murder is the capital crime that has yet to be phased out by many

countries In some such as Brazil treason during warfare is the only crime for which a person

can be sentenced to death In the Gaza Strip under Hamas any sort of cooperation with Israeli

forces during military actions is also punishable by death In others including Algeria Bahrain

Iran and Malaysia treason is punishable by death in all circumstances The United States too has

federal laws governing treason under which traitors ―shall suffer death154

Child sex abuse is another crime that is widely held to merit the death penalty In Russia for

example according to the Russian Public Opinion Research Center an overwhelming majority

consider the death penalty to be an acceptable punishment especially in relation to molestation

155 In 2009 however Russias Constitutional Court effectively abolished the death penalty by

extending indefinitely a 13-year-old moratorium on capital punishment156

Indonesia has some of the strictest penalties for drug related crimes in the world Roughly half of

those on death row are incriminated with drug-related charges157

In 2008 though the most high

profile executions were of terrorists Three of those found responsible for the 2002 Bali

bombings were executed by shooting158

Generally speaking however a significant proportion of

152

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 153

httpwwwstategovgdrlrlshrrpt2010nea154472htm 154

httpdeathpenaltyproconorgviewresourcephpresourceID=1172 155

httpenrianrutrenddeath_penalty 156

httpwwwreuterscomarticle20091119idUSLJ330478 157

httpwwwnytimescom20080711worldasia11iht-indo114421132html 158

httpnewsbbccouk2hiasia-pacific7718246stm

UNHRC 39 of 44

the executions or death sentences recorded (in 2010) in China Egypt Indonesia Iran Laos

Libya Thailand United Arab Emirates and Yemen were for drug-related offences In December

2010 the amended Anti-Narcotics law came into force in Iran extending the scope of the death

penalty to include additional categories of illegal drugs (for example crystal meth) possession

of which became punishable by death Also around the same time the National Assembly of

Gambia voted to extend the scope of the death penalty by making the possession of more than

250g of heroin or cocaine an offence punishable by death159

Several states allow for the death penalty for crimes of blasphemy and other crimes for

nonviolent expression and association In Pakistan Aasia Bibi a Christian mother of five was

charged with blasphemy and sentenced to death after a trial largely believed to be unfair on 8

November 2010 She is currently on death row The country is also noted for its laws concerning

capital crimes The list includes 27 crimes most of which go beyond the notion of ―most serious

crimes as recommended by the International Covenant on Civil and Political Rights Extra-

marital sex and blasphemy are examples of some capital crimes in the country In December

2007 Pakistan voted against a United Nation General Assembly resolution for a moratorium on

the death penalty The year before however the nation amended its law on rape and adultery

charges which are no longer punishable by death160

As far back as 1989 recommendations have been made as to how to abolish the death penalty

Member states (of the UN) have been urged ―to publish for each category of offence for which

the death penalty is authorized and if possible on an annual basis information about the use of

the death penalty including the number of persons sentenced to death the number of executions

actually carried out the number of persons under sentence of death the number of death

sentences reversed or commuted on appeal and the number of instances in which clemency has

been granted and to include information on the extent to which the safeguards referred to above

are incorporated in national law161

The committee must inspect how far this recommendation

has been adopted and should seek to rectify the weaknesses in the system of gradually

abolishing the death penalty Can a target year be designated by which crimes meriting the death

penalty could be made universal How can countries with non-secular legal systems be brought

into the fold of international law

159

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 160

httpwwwfiacatorgenIMGpdfdppakistan-enpdf 161

httpgraduateinstitutechfacultyclaphamhrdocdocsecosocresolutiondeathpen1989html

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 32: UNHRCFINAL

UNHRC 28 of 44

Wrongful convictions lead many to believe in the inherent incapacity of the death penalty to

serve justice On September 21 2011 US citizen Troy Davis was executed in Georgia after

which seven of the nine witnesses who testified against him in the case that led to his execution

recounted or retracted their evidences A petition with nearly one million signatures was put

forth to reconsider his case it was rejected On the same day a 17 year old boy was publicly

hanged in Iran for killing a popular athlete his justification based on self-defense was ignored

Also on the same day a Pakistani national was executed in China on grounds of drug trafficking

an offence that does not often result in capital punishment The need for the resolution of this

issue is pressing and the committee needs to deal with all aspects of the problem in a

comprehensive and enduring manner104

Capital Punishment

In 2010 23 countries implemented capital punishment A total of 527 executions (plus the 1000+

carried out in China alone) were known to have taken place with Iran Yemen USA and North

Korea meting out a significant number of sentences105

The figure is lower than the records

computed for years past There are more states which are now abolitionist either in law or in

practice with regard to the imposition of the punishment Gabon was officially the last country

to rescind the practice while bills calling for an end to capital punishment have been presented

to parliaments in Lebanon Mali Mongolia and South Korea106

Renewed efforts are

104

httpwwwamnestyorgennews-and-updatesus-executes-death-row-prisoner-troy-davis-2011-09-21 105

httpwwwguardiancouknewsdatablog2011mar29death-penalty-countries-world 106

httpwwwamnestyusaorgour-workissuesdeath-penaltyinternational-death-penaltydeath-penalty-statistics-

2010

UNHRC 29 of 44

simultaneously being made on the international front to implement laws against capital

punishment A third resolution establishing a moratorium on the use of death penalty passed the

UN General Assembly on December 21 2010107

Despite the increasing momentum towards an eventual elimination of the practice the number of

executions taking place annually is a cause of major concern Advocates of the death penalty

assert that the practice is an effective means of deterring crime in society Public executions are

often held in Iran Afghanistan and Palestine for example to demonstrate the fate awaiting

those who commit similar crimes108

Arguments are made on the grounds of justice that it is

proper and fair to take an eye for an eye and a life for a life and that some individuals deserve

it for the crimes they commit

Those opposing the practice question the morality of an action sanctioned by the state which

endorses deprivation of the right to life a fundamental human right under the Universal

Declaration of Human Rights109

There are inescapable flaws within legal systems which are

aggravated by discrimination prosecutorial misconduct and inadequate legal representation

Moreover the risk of executing the innocent can never be eliminated110

An alternative is

presented in the form of imprisonment for life without parole which results in a parallel debate

is imprisonment for life a viable surrogate to the practice of death penalty A thread from this

debate also relates to the economic feasibility of carrying out a death sentence as opposed to the

feasibility of imprisonment for life

Deterrence

Capital punishment is often propagated as an adequate approach in the deterrence and prevention

of crime The logic is that if murderers are sentenced to death potential murderers will think

twice before killing for fear of losing their own life The deterrence theory presumes that the

once the punishment for a certain crime is established the criminal by committing the crime

voluntarily assumes the risk of receiving the prescribed punishment for the crime Only when the

most severe punishment has been set will there be a possibility of an individual evaluating their

actions in light of the consequences111

107

httpwwwundemocracycomA-RES-62-149pdf 108

httpwwwamnestyorgennews-and-updatessharp-rise-public-executions-iran-executes-first-juvenile-

offenders-2011-2011-04-27 109

wwwunorgendocumentsudhr 110

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 111

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 30 of 44

The death penalty it is asserted ensures that convicted criminals do not offend again moreover

it is deemed to be a just penalty for atrocious crimes It is further alleged that many criminals

who are set free even after lengthy sentences regress and go on to commit heinous crimes

Therefore there should never be the possibility of a release clause112

The deterrence theory is modeled on the grounds of human psychology logic and rationale As a

professor of jurisprudence Ernest van den Haag PhD wrote ―Common sense lately bolstered

by statistics tells us that the death penalty will deter murder if anything can People fear nothing

more than death Therefore nothing will deter a criminal more than the fear of death These

statements were further validated by a US Supreme Court Justice who said on record that

Prima facie the penalty of death is likely to have a stronger effect as a deterrent to normal

human beings than any other form of punishmentlsquo113

Numerous studies have been conducted on

the subject with varying results One of the most established studies was conducted in USA

using a panel data set of over 3000 counties from 1977 to 1996 which concluded that on

average one death sentence resulted in 18 fewer murders114

Delegates will be expected to be

familiar with other similar studies

These studies are commonly refuted as not crediblelsquo by opponents of the capital punishment

who also deny the correlation between crime and death penalty as a fabricated relationship which

cannot be empirically established115116

A study of the relationship between capital punishment

and the incidence of murder was conducted for the UN in 1988 and updated in 2002 The

conclusion was ―The investigation has not provided scientific proof that executions have more

deterrent effect than life imprisonment It is unlikely that such evidence will ever come

Deterrence hypothesis finds no support in the survey117

Another counter-argument asserts that crime is still a persistent feature of the societies that

continue to award the death penalty while many of the abolitionist states enjoy low crime rates

This can be evidenced by comparing the crime rate in USA or Pakistan with that of Canada or

some European state In Canada for example the homicide rate per 100000 fell from a peak of

309 in 1975 the year before the abolition of the death penalty for murder to 241 in 1980 and

in 2003 27 years after abolition the homicide rate was 173 per 100000 44 per cent lower than

in 1975118

112

httpwwwdeathpenaltyinfoorgfacts-about-deterrence-and-death-penalty 113

httpdeathpenaltyproconorgviewresourcephpresourceID=002000 114

httpdeathpenaltyproconorgsourcefilesThe20Deterrent20Effect20of20Capital20Punishmentpdf ndash

Delegates should carefully examine certain parts of this document to establish the credibility of the assertions made

They should also invest in trying to locate studies that refute the assertions made in this and similar studies 115

httpwwwdeathpenaltyinfoorglaw-enforcement-views-deterrencelawenforcement 116

httpwwwdeathpenaltyinfoorgDonohueDeterpdf 117

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 118

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml

UNHRC 31 of 44

The lack of evidence on the production of a unique deterrent effect points to the danger of

relying on the deterrence hypothesis as a basis for public policy on the death penalty

Retribution amp Morality

An important terminology that delegates need to familiarize themselves with is that of

―retributivism119

It is defined as ―a policy of criminal justice that sponsors the punishment of

criminals in retribution for the harm they have inflicted120

Criminals deserve to be punished in

proportion to the gravity of their crime regardless of whether the victim or anyone else desires

it we may all deeply regret having to carry out the punishment but consider it warrantedlsquo is

what many say in defense of the theory121

The need for the establishment of a visibly just state arises from the potential risks of not having

one As has been visible in many developing countries with shaky legal systems when criminals

are not adequately punished for their unlawful behavior the public takes the law into its own

hands and deals out vigilante justice It is asserted that retributivism is essential for a functioning

society where individuals respect the supremacy of law

The concept of retribution in society is also grounded in religious beliefs The concept of an eye

for an eye has been a part of all three Abrahamic traditions However in the modern world it is

Islamic nations that still retain the practice based on these grounds Similar traditions can be

found in Hinduism Christianity and Buddhism as well as other religions in different parts of the

world In many non-secular countries the constitutions and state laws are derived from religious

doctrines

Opponents dismiss this aspect of the argument as being emotionally charged with little rational

logic to support the contention They claim that the establishment of capital punishment gives

birth to a culture of violence endorsed by the state It perpetuates the cycle of aggression and

brutality something which the state should be actively inhibiting not endorsing

Wrongful Convictions

The death penalty carries with it the danger of wrongfully convicting an innocent person for

crimes he did not commit There is the potential for capital punishment to evolve into sheer

miscarriage of justice as in certain circumstances states are often seen to rush the trials and

convict the accused hastily This practice takes foremost apparently in military courts often in

119

Cavadino M amp Dignan J (1997) The Penal System An Introduction (2nd ed) p 39 London Sage 120

httpdictionaryreferencecombrowseretributivism 121

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 32 of 44

the developing or lesser-developed countries where the system of law is not properly established

It is not however exclusive to these countries Examples can be drawn from countries like

Philippines Thailand Iran and Palestine to name just a few where executions are carried out at

alarming pace removing the possibility of reviews

On 15 August 2004 Atefah Rajabi Sahaaleh was hanged in a public square in the Iranian city of

Neka Her death sentence was imposed for adultery and crimes against chastity122123

Atefah

was executed a week after the trial was run Following the execution the Judge for the case was

arrested for investigation by the Intelligence Ministry The media reported that in addition to the

confession of his rape of Atefeh Judge Rezai who served as judge jury and executioner also

confessed to torturing her during interrogations to extract names of others she had relations with

No transcripts from court proceedings were recorded The State alleged that Atefah was 22 at the

time of her execution A witness later claimed The judge just looked at her body because of

the developed physique and declared her as 22124

ndash her birth certificate revealed she was born

in 1988 Furthermore Atefah did not have access to a proper defense where she could contest

charges leveled against her This is one example of many such cases of miscarriage of justice

Something that recurs in these cases is the failure of the police or prosecuting authorities to

prevent the use of unreliable witnesses the misuse of evidence or confessions and the provision

of inadequate defense representation The advent of DNA profiling and the use of it as positive

evidence in criminal cases has resulted in the exoneration of multiple death row inmates on

grounds of forensic evidence or lack thereof Since 1973 138 people have been released from

death row in the United States after it was proven that they were innocent125

In 2009 Paul

House was cleared of murder and exonerated in Tennessee USA after having served 22 years

on death row His innocence was proclaimed in light of substantial additional DNA testing and

further investigationlsquo 126

Amnesty International has noted examples of wrongful convictions from elsewhere as well

including Jamaica Japan China Nigeria and Tanzania127

Paul G Cassell a former law clerk to

the Chief Justice of USA stated the mistaken release of guilty murderers should be of far greater

concern than the speculative and heretofore nonexistent risk of the mistaken execution of an

innocent personlsquo highlighting the case made by those who advocate the death penalty even in

light of wrongful convictions128

122

httpwwwcosmolearningcomdocumentariesexecution-of-a-teenage-girl1 123

httpnewsbbccouk2hi5217424stm 124

httpnewsbbccouk2hi5217424stm 125

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 126

httparticlescnncom2009-05-13justicetennesseeexonerated_1_death-row-inmate-dna-evidence-house-

arrest_s=PMCRIME 127

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 128

httpdeathpenaltycurriculumorgstudentcaboutargumentstestimony3bhtm

UNHRC 33 of 44

Alternative to Death Penalty

All abolitionist states have reverted to the practice of sentencing criminals to life imprisonment

(some without parole) which is also termed as death by incarceration Widely regarded as a more

humane course of action life imprisonment is also alleged to be a more economical practice

While ensuring public safety by keeping criminals away from society this system also saves the

lives of innocent people who have been falsely or wrongfully convicted The setup inhibits and

curbs the cycle of violence while retaining the deterrence factor it is strongly asserted

Advocates for the death penalty are averse towards life imprisonment for a number of reasons

They cite the unreliability of the system as one of the flaws which impedes the possibility of

such a sentence being successful A certain James Moore serves as a valid example in this case

In 1962 James Moore raped and strangled 14-year-old Pamela Moss The victimlsquos parents opted

out of capital punishment for Moore and he was instead sentenced to life in prison without

parole Twenty years later a change in sentencing laws in 1982 renders James Moore eligible for

parole every two years129130

Kenneth McDuff is another example McDuff was convicted and sentenced to life imprisonment

Years later due to the issue of overcrowding in prisons McDuff was released following which

he killed eight more people McDufflsquos example is of an individual from a developed country

with an established legal system in place131

Overcrowding is a feature of prisons in developing

or lesser developed countries In many such states criminals have also been known to easily

break out from penitentiaries

The economic aspect of the debate is murky at best There is a lack of empirical data on the

subject which is why the arguments of both these sides cannot be settled beyond doubt

Advocates of capital punishment insist that the overall costs of the practice are far lesser than the

costs of housing an inmate for a lifetime132

They also suggest that the life imprisonment allows

criminals to conceive new habeas corpus petitions which on legal grounds cannot be rejected

automatically resulting in more trials

On the other hand substantial arguments are made which stress that the cost of legal proceedings

in capital cases is in truth more than that of other cases States and nations spend a significant

portion of the taxpayerlsquos money in meting out such punishments133

Delegates when addressing

this portion of the debate will need to be aware of the financial aspects of the issue as it forms

for many states an important part of whether capital punishment should be revoked or

not

129

httpwesleylowecomcphtmldeter 130

httpwwwnytimescomkeywordparole 131

httpwesleylowecomcphtmldeter 132

Ibid ndash view section titled Capital Punishment and its costslsquo 133

httpwwwamnestyusaorgour-workissuesdeath-penaltyus-death-penalty-factsdeath-penalty-cost

UNHRC 34 of 44

Imposition of Death Penalty on Juveniles

The prohibition on the death penalty for crimes committed by juvenile offendersmdashpersons under

age 18 at the time of the offensemdashis well established in international law specifically in the

Convention on the Rights of Child

ldquoNo child shall be subjected to torture or other cruel inhuman or degrading treatment or

punishment Neither capital punishment nor life imprisonment without possibility of release shall

be imposed for offences committed by persons below eighteen years of agerdquo134

- Article 37(a) Convention on the Rights of Child

ldquoSentence of death shall not be imposed for crimes committed by persons below eighteen years

of age and shall not be carried out on pregnant womenrdquo135

- Article 6(5) International Covenant on Civil and Political Rights

The treaties are a unanimously agreed set of non-negotiable standards and obligations By

acceding to the treaties and ratifying them governments commit to protecting and ensuring

childrens rights and to holding themselves accountable for this commitment before the

international community

Even though the practice of capital punishment on juveniles is relatively rare however in clear

contravention of international law nine countries have executed offenders who were juveniles at

the time of their crimes between 1990 and 2005136

These countries include the Peoples Republic

of China (PRC) the Democratic Republic of the Congo Iran Nigeria Pakistan Saudi Arabia

Sudan the United States and Yemen137

The USA has since moved to implement a ban on capital

punishment for juveniles However in most other countries of the preceding list the practice is

still enshrined in the judicial system Iranlsquos record in particular has been abominable over the last

decade It has carried out 39 executions of persons under the age of 18 since 2005 Presently

over a hundred individuals are placed on death row for crimes committed as juveniles The

executions of Mahmoud Asgari Ayaz Marhoni and Makwan Moloudzadeh became international

symbols of Irans child capital punishment and the judicial system that hands down such

134

httpwww2ohchrorgenglishlawcrchtm 135

httpwww2ohchrorgenglishlawccprhtm 136

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf - This document by the Human Rights Watch

called The Last Holdoutslsquo is a good summary of juvenile executions and should be reviewed 137

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 - Contains a list with

statistics and details of countries which have allowed the imposition of death sentence to juveniles

UNHRC 35 of 44

sentences138139140

Saudi Arabia and China too have questionable records that need to be

scrutinized further

While regional treaties and charters usually substantiate international law the Arab Human

Rights Charter of 2004 is unique among regional and international treaties in that the ban on the

juvenile death penalty in it is not absolute but merely optional141

Furthermore national laws in states that observe such a practice are in violation of

international legally-binding charters In Iran and Saudi Arabia laws usually treat a child the

same way as an adult criminal offender would be treated Article 10(3) of the International

Covenant on Civil and Political Rights emphasizes the need for demarcation between the

handling of children and that of adults in stating ―Juvenile offenders shall be segregated from

adults and be accorded treatment appropriate to their age and legal status142

The definition of a child in these Muslim states is unclear as adulthood is associated with

attainment of puberty which is a relative concept The Committee on the Rights of the Child in

January 2005 censured the Saudi government for its practice of imposing the death penalty on

juveniles terming it a serious violation of the fundamental rights The committee was deeply

alarmed over the discretionary power judges hold to treat juveniles as adults as was stated in

the committeelsquos report Iran too was strongly condemned following the release of an

international report highlighting the dire situation in Iran by the International for Human Rights 143

138

httpwwwfoxnewscomstory0293329798200html 139

httpnewsbbccouk2himiddle_east7130380stm 140

httpenwikipediaorgwikiCapital_punishmentIran 141

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 142

httpwww2ohchrorgenglishlawccprhtm 143

httpwwwfidhorgIMGpdfRapport_Iran_finalpdf

UNHRC 36 of 44

On August 19 2008 Iranian authorities executed Seyyed Reza Hejazi at Isfahan Central Prison

for his role in a murder committed in 2003 when he was 15 Hejazi was tried as an adult by

Branch 106 of the Isfahan General Court even if he did not qualify as one under international

stipulations and sentenced to death on November 14 2005144

In Saudi Arabia Mu`id bin

Husayn bin Abu al-Qasim bin `Ali Hakami was executed on July 10 2007 for a murder he

allegedly committed three years earlier when he was 13 years old145

The judges in these states

because of the implementation of the Sharialsquo law have a large amount of discretion with regard

to their rulings This discretion is often abused in the interrogation and judicial proceedings In

Pakistan authorities hanged Mutaber Khan in Peshawar Central Prison on June 13 2006 on

charges of murder of five people The fact that he was held in the juvenile wing of Peshawar

Central prison and the evidence presented by the accused confirming that his age was below 18

at the time of the killings were not taken into account during the trials and Mutaber was charged

as an adult in the case146

While the above does not cover exhaustively the practice of capitally punishing juveniles the

committee is expected to be well read on the matter The committee will be required to devise

ways to strictly apply the existing international law on the subject to curtail further deaths of

juveniles by states A series of recommendations on better implementation of international

covenants will be expected from the committee Delegates at UNHRC will also have to

familiarize themselves with the stipulations in the national laws of countries practicing juvenile

death penalties (Iran Saudi Arabia Pakistan Nigeria Sudan Yemen and UAE among others) to

discuss how these states are constitutionally able to bend international law and mete out the

illegal punishments

144

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 145

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 146

See FIDH and Human Rights Commission of Pakistan ―Slow march to the gallows and ―Condemned Prisoner

Executed Dawn Newspaper Karachi June 14 2005 httpwwwdawncom20060614nat16htm

UNHRC 37 of 44

Universality of Laws Incurring the Death Penalty

In countries which have not abolished the death penalty capital punishment may be imposed

only for the most serious crimes it being understood that their scope should not go beyond

intentional crimes with lethal or other extremely grave consequences

- Safeguards guaranteeing protection of the rights of those facing the death penalty147

Laws incurring the death penalty or capital crimes have certain uniformity the world over This

is of course barring states that are religiously affiliated and whose law systems are not secular

in nature The list of capital crimes for those states with non-secular legal systems is slightly

different The Human Rights Commission had decided that the imposition in the State party of

the death penalty for offences which cannot be characterized as the most serious including

apostasy committing a third homosexual act illicit sex embezzlement by officials and theft by

force are incompatible with Article 6 of the Covenant Economic offences including

embezzlement drug related offences political offences and robbery were also referred to148

The reason why looking into capital crimes and trying to garner a global impression of them is

important is that the death penalty can only realistically be abolished in a piecemeal way This

process will entail shortening the list of capital crimes The UN formally notes that ―in order

fully to guarantee the right to life provided for in article 3 of the Universal Declaration of

Human Rights the main objective to be pursued is that of progressively restricting the number of

offences for which capital punishment may be imposed with a view to the desirability of

abolishing this punishment in all countries149

The first established death penalty laws date as far back as the Eighteenth Century BC in the

Code of King Hammaurabi of Babylon which codified the death penalty for 25 different crimes

By the 1700s 222 crimes were punishable by death in Britain including stealing cutting down a

tree and robbing a rabbit warren In the 19th

century the death penalty was eliminated for over

100 of the 222 crimes punishable by death 150

In modern times the UN Special Rapporteur on

extrajudicial summary or arbitrary executions has stated that the death penalty should be

eliminated for economic crimes and drug-related offences and that the restrictions to its use

―exclude the possibility of death sentences for so-called victimless offences ndash including acts of

treason espionage and other vaguely defined acts usually described as crimes against the Statelsquo

or disloyaltylsquo and ―actions primarily related to prevailing moral values such as adultery and

prostitution as well as matters of sexual orientation151

147

httpwww2ohchrorgenglishlawpdfprotectionpdf 148

httpwwwunhchrchtbsdocnsf0bc310a747155dff88025655300537faeOpendocument 149

General Assembly resolution 2857 httpwwwunodcorgpdfcompendiumcompendium_2006_part_01_05pdf 150

httpdeathpenaltycurriculumorgstudentcabouthistoryhistoryPDF 151

httpswwwabofimedia24259report10pdf

UNHRC 38 of 44

Contrary to the made recommendations even political dissent warrants a death sentence in

several countries most notably in China and Iran In 2010 nearly 20 Kurdish people were

executed for political offences in Iran The country is known for keeping dissent especially from

the Kurds suppressed Most are executed on the grounds of moharebeh or enmity against God

Moreover challenging the power of the Ayatollah is also punishable by death These charges are

neither explicit nor in line with international guidelines over what crimes are punishable

capitally In Iran judges must handle such cases carefully as Iranian law provides for only one

punishment if an individual is found to be guilty of treason Libya too thwarts political dissent

with firm laws in place for punishing by death those who illegally form groups organizations or

associations against the state152

Saudi Arabia too is worth note for its vaguely phrased laws governing capital punishment

Intentional murder and crimes that spread ―mischief in the land (Fasad fil-ardh) merit death In

2010 the government announced that it had executed 26 people all by beheading Crimes that

―spread mischief include witchcraft and sorcery153

How is one convicted of witchcraft in the

21st century What can the international community do when regarding countries such as these

Treason arguably along with murder is the capital crime that has yet to be phased out by many

countries In some such as Brazil treason during warfare is the only crime for which a person

can be sentenced to death In the Gaza Strip under Hamas any sort of cooperation with Israeli

forces during military actions is also punishable by death In others including Algeria Bahrain

Iran and Malaysia treason is punishable by death in all circumstances The United States too has

federal laws governing treason under which traitors ―shall suffer death154

Child sex abuse is another crime that is widely held to merit the death penalty In Russia for

example according to the Russian Public Opinion Research Center an overwhelming majority

consider the death penalty to be an acceptable punishment especially in relation to molestation

155 In 2009 however Russias Constitutional Court effectively abolished the death penalty by

extending indefinitely a 13-year-old moratorium on capital punishment156

Indonesia has some of the strictest penalties for drug related crimes in the world Roughly half of

those on death row are incriminated with drug-related charges157

In 2008 though the most high

profile executions were of terrorists Three of those found responsible for the 2002 Bali

bombings were executed by shooting158

Generally speaking however a significant proportion of

152

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 153

httpwwwstategovgdrlrlshrrpt2010nea154472htm 154

httpdeathpenaltyproconorgviewresourcephpresourceID=1172 155

httpenrianrutrenddeath_penalty 156

httpwwwreuterscomarticle20091119idUSLJ330478 157

httpwwwnytimescom20080711worldasia11iht-indo114421132html 158

httpnewsbbccouk2hiasia-pacific7718246stm

UNHRC 39 of 44

the executions or death sentences recorded (in 2010) in China Egypt Indonesia Iran Laos

Libya Thailand United Arab Emirates and Yemen were for drug-related offences In December

2010 the amended Anti-Narcotics law came into force in Iran extending the scope of the death

penalty to include additional categories of illegal drugs (for example crystal meth) possession

of which became punishable by death Also around the same time the National Assembly of

Gambia voted to extend the scope of the death penalty by making the possession of more than

250g of heroin or cocaine an offence punishable by death159

Several states allow for the death penalty for crimes of blasphemy and other crimes for

nonviolent expression and association In Pakistan Aasia Bibi a Christian mother of five was

charged with blasphemy and sentenced to death after a trial largely believed to be unfair on 8

November 2010 She is currently on death row The country is also noted for its laws concerning

capital crimes The list includes 27 crimes most of which go beyond the notion of ―most serious

crimes as recommended by the International Covenant on Civil and Political Rights Extra-

marital sex and blasphemy are examples of some capital crimes in the country In December

2007 Pakistan voted against a United Nation General Assembly resolution for a moratorium on

the death penalty The year before however the nation amended its law on rape and adultery

charges which are no longer punishable by death160

As far back as 1989 recommendations have been made as to how to abolish the death penalty

Member states (of the UN) have been urged ―to publish for each category of offence for which

the death penalty is authorized and if possible on an annual basis information about the use of

the death penalty including the number of persons sentenced to death the number of executions

actually carried out the number of persons under sentence of death the number of death

sentences reversed or commuted on appeal and the number of instances in which clemency has

been granted and to include information on the extent to which the safeguards referred to above

are incorporated in national law161

The committee must inspect how far this recommendation

has been adopted and should seek to rectify the weaknesses in the system of gradually

abolishing the death penalty Can a target year be designated by which crimes meriting the death

penalty could be made universal How can countries with non-secular legal systems be brought

into the fold of international law

159

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 160

httpwwwfiacatorgenIMGpdfdppakistan-enpdf 161

httpgraduateinstitutechfacultyclaphamhrdocdocsecosocresolutiondeathpen1989html

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 33: UNHRCFINAL

UNHRC 29 of 44

simultaneously being made on the international front to implement laws against capital

punishment A third resolution establishing a moratorium on the use of death penalty passed the

UN General Assembly on December 21 2010107

Despite the increasing momentum towards an eventual elimination of the practice the number of

executions taking place annually is a cause of major concern Advocates of the death penalty

assert that the practice is an effective means of deterring crime in society Public executions are

often held in Iran Afghanistan and Palestine for example to demonstrate the fate awaiting

those who commit similar crimes108

Arguments are made on the grounds of justice that it is

proper and fair to take an eye for an eye and a life for a life and that some individuals deserve

it for the crimes they commit

Those opposing the practice question the morality of an action sanctioned by the state which

endorses deprivation of the right to life a fundamental human right under the Universal

Declaration of Human Rights109

There are inescapable flaws within legal systems which are

aggravated by discrimination prosecutorial misconduct and inadequate legal representation

Moreover the risk of executing the innocent can never be eliminated110

An alternative is

presented in the form of imprisonment for life without parole which results in a parallel debate

is imprisonment for life a viable surrogate to the practice of death penalty A thread from this

debate also relates to the economic feasibility of carrying out a death sentence as opposed to the

feasibility of imprisonment for life

Deterrence

Capital punishment is often propagated as an adequate approach in the deterrence and prevention

of crime The logic is that if murderers are sentenced to death potential murderers will think

twice before killing for fear of losing their own life The deterrence theory presumes that the

once the punishment for a certain crime is established the criminal by committing the crime

voluntarily assumes the risk of receiving the prescribed punishment for the crime Only when the

most severe punishment has been set will there be a possibility of an individual evaluating their

actions in light of the consequences111

107

httpwwwundemocracycomA-RES-62-149pdf 108

httpwwwamnestyorgennews-and-updatessharp-rise-public-executions-iran-executes-first-juvenile-

offenders-2011-2011-04-27 109

wwwunorgendocumentsudhr 110

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml 111

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 30 of 44

The death penalty it is asserted ensures that convicted criminals do not offend again moreover

it is deemed to be a just penalty for atrocious crimes It is further alleged that many criminals

who are set free even after lengthy sentences regress and go on to commit heinous crimes

Therefore there should never be the possibility of a release clause112

The deterrence theory is modeled on the grounds of human psychology logic and rationale As a

professor of jurisprudence Ernest van den Haag PhD wrote ―Common sense lately bolstered

by statistics tells us that the death penalty will deter murder if anything can People fear nothing

more than death Therefore nothing will deter a criminal more than the fear of death These

statements were further validated by a US Supreme Court Justice who said on record that

Prima facie the penalty of death is likely to have a stronger effect as a deterrent to normal

human beings than any other form of punishmentlsquo113

Numerous studies have been conducted on

the subject with varying results One of the most established studies was conducted in USA

using a panel data set of over 3000 counties from 1977 to 1996 which concluded that on

average one death sentence resulted in 18 fewer murders114

Delegates will be expected to be

familiar with other similar studies

These studies are commonly refuted as not crediblelsquo by opponents of the capital punishment

who also deny the correlation between crime and death penalty as a fabricated relationship which

cannot be empirically established115116

A study of the relationship between capital punishment

and the incidence of murder was conducted for the UN in 1988 and updated in 2002 The

conclusion was ―The investigation has not provided scientific proof that executions have more

deterrent effect than life imprisonment It is unlikely that such evidence will ever come

Deterrence hypothesis finds no support in the survey117

Another counter-argument asserts that crime is still a persistent feature of the societies that

continue to award the death penalty while many of the abolitionist states enjoy low crime rates

This can be evidenced by comparing the crime rate in USA or Pakistan with that of Canada or

some European state In Canada for example the homicide rate per 100000 fell from a peak of

309 in 1975 the year before the abolition of the death penalty for murder to 241 in 1980 and

in 2003 27 years after abolition the homicide rate was 173 per 100000 44 per cent lower than

in 1975118

112

httpwwwdeathpenaltyinfoorgfacts-about-deterrence-and-death-penalty 113

httpdeathpenaltyproconorgviewresourcephpresourceID=002000 114

httpdeathpenaltyproconorgsourcefilesThe20Deterrent20Effect20of20Capital20Punishmentpdf ndash

Delegates should carefully examine certain parts of this document to establish the credibility of the assertions made

They should also invest in trying to locate studies that refute the assertions made in this and similar studies 115

httpwwwdeathpenaltyinfoorglaw-enforcement-views-deterrencelawenforcement 116

httpwwwdeathpenaltyinfoorgDonohueDeterpdf 117

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 118

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml

UNHRC 31 of 44

The lack of evidence on the production of a unique deterrent effect points to the danger of

relying on the deterrence hypothesis as a basis for public policy on the death penalty

Retribution amp Morality

An important terminology that delegates need to familiarize themselves with is that of

―retributivism119

It is defined as ―a policy of criminal justice that sponsors the punishment of

criminals in retribution for the harm they have inflicted120

Criminals deserve to be punished in

proportion to the gravity of their crime regardless of whether the victim or anyone else desires

it we may all deeply regret having to carry out the punishment but consider it warrantedlsquo is

what many say in defense of the theory121

The need for the establishment of a visibly just state arises from the potential risks of not having

one As has been visible in many developing countries with shaky legal systems when criminals

are not adequately punished for their unlawful behavior the public takes the law into its own

hands and deals out vigilante justice It is asserted that retributivism is essential for a functioning

society where individuals respect the supremacy of law

The concept of retribution in society is also grounded in religious beliefs The concept of an eye

for an eye has been a part of all three Abrahamic traditions However in the modern world it is

Islamic nations that still retain the practice based on these grounds Similar traditions can be

found in Hinduism Christianity and Buddhism as well as other religions in different parts of the

world In many non-secular countries the constitutions and state laws are derived from religious

doctrines

Opponents dismiss this aspect of the argument as being emotionally charged with little rational

logic to support the contention They claim that the establishment of capital punishment gives

birth to a culture of violence endorsed by the state It perpetuates the cycle of aggression and

brutality something which the state should be actively inhibiting not endorsing

Wrongful Convictions

The death penalty carries with it the danger of wrongfully convicting an innocent person for

crimes he did not commit There is the potential for capital punishment to evolve into sheer

miscarriage of justice as in certain circumstances states are often seen to rush the trials and

convict the accused hastily This practice takes foremost apparently in military courts often in

119

Cavadino M amp Dignan J (1997) The Penal System An Introduction (2nd ed) p 39 London Sage 120

httpdictionaryreferencecombrowseretributivism 121

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 32 of 44

the developing or lesser-developed countries where the system of law is not properly established

It is not however exclusive to these countries Examples can be drawn from countries like

Philippines Thailand Iran and Palestine to name just a few where executions are carried out at

alarming pace removing the possibility of reviews

On 15 August 2004 Atefah Rajabi Sahaaleh was hanged in a public square in the Iranian city of

Neka Her death sentence was imposed for adultery and crimes against chastity122123

Atefah

was executed a week after the trial was run Following the execution the Judge for the case was

arrested for investigation by the Intelligence Ministry The media reported that in addition to the

confession of his rape of Atefeh Judge Rezai who served as judge jury and executioner also

confessed to torturing her during interrogations to extract names of others she had relations with

No transcripts from court proceedings were recorded The State alleged that Atefah was 22 at the

time of her execution A witness later claimed The judge just looked at her body because of

the developed physique and declared her as 22124

ndash her birth certificate revealed she was born

in 1988 Furthermore Atefah did not have access to a proper defense where she could contest

charges leveled against her This is one example of many such cases of miscarriage of justice

Something that recurs in these cases is the failure of the police or prosecuting authorities to

prevent the use of unreliable witnesses the misuse of evidence or confessions and the provision

of inadequate defense representation The advent of DNA profiling and the use of it as positive

evidence in criminal cases has resulted in the exoneration of multiple death row inmates on

grounds of forensic evidence or lack thereof Since 1973 138 people have been released from

death row in the United States after it was proven that they were innocent125

In 2009 Paul

House was cleared of murder and exonerated in Tennessee USA after having served 22 years

on death row His innocence was proclaimed in light of substantial additional DNA testing and

further investigationlsquo 126

Amnesty International has noted examples of wrongful convictions from elsewhere as well

including Jamaica Japan China Nigeria and Tanzania127

Paul G Cassell a former law clerk to

the Chief Justice of USA stated the mistaken release of guilty murderers should be of far greater

concern than the speculative and heretofore nonexistent risk of the mistaken execution of an

innocent personlsquo highlighting the case made by those who advocate the death penalty even in

light of wrongful convictions128

122

httpwwwcosmolearningcomdocumentariesexecution-of-a-teenage-girl1 123

httpnewsbbccouk2hi5217424stm 124

httpnewsbbccouk2hi5217424stm 125

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 126

httparticlescnncom2009-05-13justicetennesseeexonerated_1_death-row-inmate-dna-evidence-house-

arrest_s=PMCRIME 127

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 128

httpdeathpenaltycurriculumorgstudentcaboutargumentstestimony3bhtm

UNHRC 33 of 44

Alternative to Death Penalty

All abolitionist states have reverted to the practice of sentencing criminals to life imprisonment

(some without parole) which is also termed as death by incarceration Widely regarded as a more

humane course of action life imprisonment is also alleged to be a more economical practice

While ensuring public safety by keeping criminals away from society this system also saves the

lives of innocent people who have been falsely or wrongfully convicted The setup inhibits and

curbs the cycle of violence while retaining the deterrence factor it is strongly asserted

Advocates for the death penalty are averse towards life imprisonment for a number of reasons

They cite the unreliability of the system as one of the flaws which impedes the possibility of

such a sentence being successful A certain James Moore serves as a valid example in this case

In 1962 James Moore raped and strangled 14-year-old Pamela Moss The victimlsquos parents opted

out of capital punishment for Moore and he was instead sentenced to life in prison without

parole Twenty years later a change in sentencing laws in 1982 renders James Moore eligible for

parole every two years129130

Kenneth McDuff is another example McDuff was convicted and sentenced to life imprisonment

Years later due to the issue of overcrowding in prisons McDuff was released following which

he killed eight more people McDufflsquos example is of an individual from a developed country

with an established legal system in place131

Overcrowding is a feature of prisons in developing

or lesser developed countries In many such states criminals have also been known to easily

break out from penitentiaries

The economic aspect of the debate is murky at best There is a lack of empirical data on the

subject which is why the arguments of both these sides cannot be settled beyond doubt

Advocates of capital punishment insist that the overall costs of the practice are far lesser than the

costs of housing an inmate for a lifetime132

They also suggest that the life imprisonment allows

criminals to conceive new habeas corpus petitions which on legal grounds cannot be rejected

automatically resulting in more trials

On the other hand substantial arguments are made which stress that the cost of legal proceedings

in capital cases is in truth more than that of other cases States and nations spend a significant

portion of the taxpayerlsquos money in meting out such punishments133

Delegates when addressing

this portion of the debate will need to be aware of the financial aspects of the issue as it forms

for many states an important part of whether capital punishment should be revoked or

not

129

httpwesleylowecomcphtmldeter 130

httpwwwnytimescomkeywordparole 131

httpwesleylowecomcphtmldeter 132

Ibid ndash view section titled Capital Punishment and its costslsquo 133

httpwwwamnestyusaorgour-workissuesdeath-penaltyus-death-penalty-factsdeath-penalty-cost

UNHRC 34 of 44

Imposition of Death Penalty on Juveniles

The prohibition on the death penalty for crimes committed by juvenile offendersmdashpersons under

age 18 at the time of the offensemdashis well established in international law specifically in the

Convention on the Rights of Child

ldquoNo child shall be subjected to torture or other cruel inhuman or degrading treatment or

punishment Neither capital punishment nor life imprisonment without possibility of release shall

be imposed for offences committed by persons below eighteen years of agerdquo134

- Article 37(a) Convention on the Rights of Child

ldquoSentence of death shall not be imposed for crimes committed by persons below eighteen years

of age and shall not be carried out on pregnant womenrdquo135

- Article 6(5) International Covenant on Civil and Political Rights

The treaties are a unanimously agreed set of non-negotiable standards and obligations By

acceding to the treaties and ratifying them governments commit to protecting and ensuring

childrens rights and to holding themselves accountable for this commitment before the

international community

Even though the practice of capital punishment on juveniles is relatively rare however in clear

contravention of international law nine countries have executed offenders who were juveniles at

the time of their crimes between 1990 and 2005136

These countries include the Peoples Republic

of China (PRC) the Democratic Republic of the Congo Iran Nigeria Pakistan Saudi Arabia

Sudan the United States and Yemen137

The USA has since moved to implement a ban on capital

punishment for juveniles However in most other countries of the preceding list the practice is

still enshrined in the judicial system Iranlsquos record in particular has been abominable over the last

decade It has carried out 39 executions of persons under the age of 18 since 2005 Presently

over a hundred individuals are placed on death row for crimes committed as juveniles The

executions of Mahmoud Asgari Ayaz Marhoni and Makwan Moloudzadeh became international

symbols of Irans child capital punishment and the judicial system that hands down such

134

httpwww2ohchrorgenglishlawcrchtm 135

httpwww2ohchrorgenglishlawccprhtm 136

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf - This document by the Human Rights Watch

called The Last Holdoutslsquo is a good summary of juvenile executions and should be reviewed 137

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 - Contains a list with

statistics and details of countries which have allowed the imposition of death sentence to juveniles

UNHRC 35 of 44

sentences138139140

Saudi Arabia and China too have questionable records that need to be

scrutinized further

While regional treaties and charters usually substantiate international law the Arab Human

Rights Charter of 2004 is unique among regional and international treaties in that the ban on the

juvenile death penalty in it is not absolute but merely optional141

Furthermore national laws in states that observe such a practice are in violation of

international legally-binding charters In Iran and Saudi Arabia laws usually treat a child the

same way as an adult criminal offender would be treated Article 10(3) of the International

Covenant on Civil and Political Rights emphasizes the need for demarcation between the

handling of children and that of adults in stating ―Juvenile offenders shall be segregated from

adults and be accorded treatment appropriate to their age and legal status142

The definition of a child in these Muslim states is unclear as adulthood is associated with

attainment of puberty which is a relative concept The Committee on the Rights of the Child in

January 2005 censured the Saudi government for its practice of imposing the death penalty on

juveniles terming it a serious violation of the fundamental rights The committee was deeply

alarmed over the discretionary power judges hold to treat juveniles as adults as was stated in

the committeelsquos report Iran too was strongly condemned following the release of an

international report highlighting the dire situation in Iran by the International for Human Rights 143

138

httpwwwfoxnewscomstory0293329798200html 139

httpnewsbbccouk2himiddle_east7130380stm 140

httpenwikipediaorgwikiCapital_punishmentIran 141

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 142

httpwww2ohchrorgenglishlawccprhtm 143

httpwwwfidhorgIMGpdfRapport_Iran_finalpdf

UNHRC 36 of 44

On August 19 2008 Iranian authorities executed Seyyed Reza Hejazi at Isfahan Central Prison

for his role in a murder committed in 2003 when he was 15 Hejazi was tried as an adult by

Branch 106 of the Isfahan General Court even if he did not qualify as one under international

stipulations and sentenced to death on November 14 2005144

In Saudi Arabia Mu`id bin

Husayn bin Abu al-Qasim bin `Ali Hakami was executed on July 10 2007 for a murder he

allegedly committed three years earlier when he was 13 years old145

The judges in these states

because of the implementation of the Sharialsquo law have a large amount of discretion with regard

to their rulings This discretion is often abused in the interrogation and judicial proceedings In

Pakistan authorities hanged Mutaber Khan in Peshawar Central Prison on June 13 2006 on

charges of murder of five people The fact that he was held in the juvenile wing of Peshawar

Central prison and the evidence presented by the accused confirming that his age was below 18

at the time of the killings were not taken into account during the trials and Mutaber was charged

as an adult in the case146

While the above does not cover exhaustively the practice of capitally punishing juveniles the

committee is expected to be well read on the matter The committee will be required to devise

ways to strictly apply the existing international law on the subject to curtail further deaths of

juveniles by states A series of recommendations on better implementation of international

covenants will be expected from the committee Delegates at UNHRC will also have to

familiarize themselves with the stipulations in the national laws of countries practicing juvenile

death penalties (Iran Saudi Arabia Pakistan Nigeria Sudan Yemen and UAE among others) to

discuss how these states are constitutionally able to bend international law and mete out the

illegal punishments

144

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 145

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 146

See FIDH and Human Rights Commission of Pakistan ―Slow march to the gallows and ―Condemned Prisoner

Executed Dawn Newspaper Karachi June 14 2005 httpwwwdawncom20060614nat16htm

UNHRC 37 of 44

Universality of Laws Incurring the Death Penalty

In countries which have not abolished the death penalty capital punishment may be imposed

only for the most serious crimes it being understood that their scope should not go beyond

intentional crimes with lethal or other extremely grave consequences

- Safeguards guaranteeing protection of the rights of those facing the death penalty147

Laws incurring the death penalty or capital crimes have certain uniformity the world over This

is of course barring states that are religiously affiliated and whose law systems are not secular

in nature The list of capital crimes for those states with non-secular legal systems is slightly

different The Human Rights Commission had decided that the imposition in the State party of

the death penalty for offences which cannot be characterized as the most serious including

apostasy committing a third homosexual act illicit sex embezzlement by officials and theft by

force are incompatible with Article 6 of the Covenant Economic offences including

embezzlement drug related offences political offences and robbery were also referred to148

The reason why looking into capital crimes and trying to garner a global impression of them is

important is that the death penalty can only realistically be abolished in a piecemeal way This

process will entail shortening the list of capital crimes The UN formally notes that ―in order

fully to guarantee the right to life provided for in article 3 of the Universal Declaration of

Human Rights the main objective to be pursued is that of progressively restricting the number of

offences for which capital punishment may be imposed with a view to the desirability of

abolishing this punishment in all countries149

The first established death penalty laws date as far back as the Eighteenth Century BC in the

Code of King Hammaurabi of Babylon which codified the death penalty for 25 different crimes

By the 1700s 222 crimes were punishable by death in Britain including stealing cutting down a

tree and robbing a rabbit warren In the 19th

century the death penalty was eliminated for over

100 of the 222 crimes punishable by death 150

In modern times the UN Special Rapporteur on

extrajudicial summary or arbitrary executions has stated that the death penalty should be

eliminated for economic crimes and drug-related offences and that the restrictions to its use

―exclude the possibility of death sentences for so-called victimless offences ndash including acts of

treason espionage and other vaguely defined acts usually described as crimes against the Statelsquo

or disloyaltylsquo and ―actions primarily related to prevailing moral values such as adultery and

prostitution as well as matters of sexual orientation151

147

httpwww2ohchrorgenglishlawpdfprotectionpdf 148

httpwwwunhchrchtbsdocnsf0bc310a747155dff88025655300537faeOpendocument 149

General Assembly resolution 2857 httpwwwunodcorgpdfcompendiumcompendium_2006_part_01_05pdf 150

httpdeathpenaltycurriculumorgstudentcabouthistoryhistoryPDF 151

httpswwwabofimedia24259report10pdf

UNHRC 38 of 44

Contrary to the made recommendations even political dissent warrants a death sentence in

several countries most notably in China and Iran In 2010 nearly 20 Kurdish people were

executed for political offences in Iran The country is known for keeping dissent especially from

the Kurds suppressed Most are executed on the grounds of moharebeh or enmity against God

Moreover challenging the power of the Ayatollah is also punishable by death These charges are

neither explicit nor in line with international guidelines over what crimes are punishable

capitally In Iran judges must handle such cases carefully as Iranian law provides for only one

punishment if an individual is found to be guilty of treason Libya too thwarts political dissent

with firm laws in place for punishing by death those who illegally form groups organizations or

associations against the state152

Saudi Arabia too is worth note for its vaguely phrased laws governing capital punishment

Intentional murder and crimes that spread ―mischief in the land (Fasad fil-ardh) merit death In

2010 the government announced that it had executed 26 people all by beheading Crimes that

―spread mischief include witchcraft and sorcery153

How is one convicted of witchcraft in the

21st century What can the international community do when regarding countries such as these

Treason arguably along with murder is the capital crime that has yet to be phased out by many

countries In some such as Brazil treason during warfare is the only crime for which a person

can be sentenced to death In the Gaza Strip under Hamas any sort of cooperation with Israeli

forces during military actions is also punishable by death In others including Algeria Bahrain

Iran and Malaysia treason is punishable by death in all circumstances The United States too has

federal laws governing treason under which traitors ―shall suffer death154

Child sex abuse is another crime that is widely held to merit the death penalty In Russia for

example according to the Russian Public Opinion Research Center an overwhelming majority

consider the death penalty to be an acceptable punishment especially in relation to molestation

155 In 2009 however Russias Constitutional Court effectively abolished the death penalty by

extending indefinitely a 13-year-old moratorium on capital punishment156

Indonesia has some of the strictest penalties for drug related crimes in the world Roughly half of

those on death row are incriminated with drug-related charges157

In 2008 though the most high

profile executions were of terrorists Three of those found responsible for the 2002 Bali

bombings were executed by shooting158

Generally speaking however a significant proportion of

152

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 153

httpwwwstategovgdrlrlshrrpt2010nea154472htm 154

httpdeathpenaltyproconorgviewresourcephpresourceID=1172 155

httpenrianrutrenddeath_penalty 156

httpwwwreuterscomarticle20091119idUSLJ330478 157

httpwwwnytimescom20080711worldasia11iht-indo114421132html 158

httpnewsbbccouk2hiasia-pacific7718246stm

UNHRC 39 of 44

the executions or death sentences recorded (in 2010) in China Egypt Indonesia Iran Laos

Libya Thailand United Arab Emirates and Yemen were for drug-related offences In December

2010 the amended Anti-Narcotics law came into force in Iran extending the scope of the death

penalty to include additional categories of illegal drugs (for example crystal meth) possession

of which became punishable by death Also around the same time the National Assembly of

Gambia voted to extend the scope of the death penalty by making the possession of more than

250g of heroin or cocaine an offence punishable by death159

Several states allow for the death penalty for crimes of blasphemy and other crimes for

nonviolent expression and association In Pakistan Aasia Bibi a Christian mother of five was

charged with blasphemy and sentenced to death after a trial largely believed to be unfair on 8

November 2010 She is currently on death row The country is also noted for its laws concerning

capital crimes The list includes 27 crimes most of which go beyond the notion of ―most serious

crimes as recommended by the International Covenant on Civil and Political Rights Extra-

marital sex and blasphemy are examples of some capital crimes in the country In December

2007 Pakistan voted against a United Nation General Assembly resolution for a moratorium on

the death penalty The year before however the nation amended its law on rape and adultery

charges which are no longer punishable by death160

As far back as 1989 recommendations have been made as to how to abolish the death penalty

Member states (of the UN) have been urged ―to publish for each category of offence for which

the death penalty is authorized and if possible on an annual basis information about the use of

the death penalty including the number of persons sentenced to death the number of executions

actually carried out the number of persons under sentence of death the number of death

sentences reversed or commuted on appeal and the number of instances in which clemency has

been granted and to include information on the extent to which the safeguards referred to above

are incorporated in national law161

The committee must inspect how far this recommendation

has been adopted and should seek to rectify the weaknesses in the system of gradually

abolishing the death penalty Can a target year be designated by which crimes meriting the death

penalty could be made universal How can countries with non-secular legal systems be brought

into the fold of international law

159

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 160

httpwwwfiacatorgenIMGpdfdppakistan-enpdf 161

httpgraduateinstitutechfacultyclaphamhrdocdocsecosocresolutiondeathpen1989html

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 34: UNHRCFINAL

UNHRC 30 of 44

The death penalty it is asserted ensures that convicted criminals do not offend again moreover

it is deemed to be a just penalty for atrocious crimes It is further alleged that many criminals

who are set free even after lengthy sentences regress and go on to commit heinous crimes

Therefore there should never be the possibility of a release clause112

The deterrence theory is modeled on the grounds of human psychology logic and rationale As a

professor of jurisprudence Ernest van den Haag PhD wrote ―Common sense lately bolstered

by statistics tells us that the death penalty will deter murder if anything can People fear nothing

more than death Therefore nothing will deter a criminal more than the fear of death These

statements were further validated by a US Supreme Court Justice who said on record that

Prima facie the penalty of death is likely to have a stronger effect as a deterrent to normal

human beings than any other form of punishmentlsquo113

Numerous studies have been conducted on

the subject with varying results One of the most established studies was conducted in USA

using a panel data set of over 3000 counties from 1977 to 1996 which concluded that on

average one death sentence resulted in 18 fewer murders114

Delegates will be expected to be

familiar with other similar studies

These studies are commonly refuted as not crediblelsquo by opponents of the capital punishment

who also deny the correlation between crime and death penalty as a fabricated relationship which

cannot be empirically established115116

A study of the relationship between capital punishment

and the incidence of murder was conducted for the UN in 1988 and updated in 2002 The

conclusion was ―The investigation has not provided scientific proof that executions have more

deterrent effect than life imprisonment It is unlikely that such evidence will ever come

Deterrence hypothesis finds no support in the survey117

Another counter-argument asserts that crime is still a persistent feature of the societies that

continue to award the death penalty while many of the abolitionist states enjoy low crime rates

This can be evidenced by comparing the crime rate in USA or Pakistan with that of Canada or

some European state In Canada for example the homicide rate per 100000 fell from a peak of

309 in 1975 the year before the abolition of the death penalty for murder to 241 in 1980 and

in 2003 27 years after abolition the homicide rate was 173 per 100000 44 per cent lower than

in 1975118

112

httpwwwdeathpenaltyinfoorgfacts-about-deterrence-and-death-penalty 113

httpdeathpenaltyproconorgviewresourcephpresourceID=002000 114

httpdeathpenaltyproconorgsourcefilesThe20Deterrent20Effect20of20Capital20Punishmentpdf ndash

Delegates should carefully examine certain parts of this document to establish the credibility of the assertions made

They should also invest in trying to locate studies that refute the assertions made in this and similar studies 115

httpwwwdeathpenaltyinfoorglaw-enforcement-views-deterrencelawenforcement 116

httpwwwdeathpenaltyinfoorgDonohueDeterpdf 117

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 118

httpwwwamnestyorgenlibraryassetACT500102007enf45ed09c-d3a2-11dd-a329-

2f46302a8cc6act500102007enhtml

UNHRC 31 of 44

The lack of evidence on the production of a unique deterrent effect points to the danger of

relying on the deterrence hypothesis as a basis for public policy on the death penalty

Retribution amp Morality

An important terminology that delegates need to familiarize themselves with is that of

―retributivism119

It is defined as ―a policy of criminal justice that sponsors the punishment of

criminals in retribution for the harm they have inflicted120

Criminals deserve to be punished in

proportion to the gravity of their crime regardless of whether the victim or anyone else desires

it we may all deeply regret having to carry out the punishment but consider it warrantedlsquo is

what many say in defense of the theory121

The need for the establishment of a visibly just state arises from the potential risks of not having

one As has been visible in many developing countries with shaky legal systems when criminals

are not adequately punished for their unlawful behavior the public takes the law into its own

hands and deals out vigilante justice It is asserted that retributivism is essential for a functioning

society where individuals respect the supremacy of law

The concept of retribution in society is also grounded in religious beliefs The concept of an eye

for an eye has been a part of all three Abrahamic traditions However in the modern world it is

Islamic nations that still retain the practice based on these grounds Similar traditions can be

found in Hinduism Christianity and Buddhism as well as other religions in different parts of the

world In many non-secular countries the constitutions and state laws are derived from religious

doctrines

Opponents dismiss this aspect of the argument as being emotionally charged with little rational

logic to support the contention They claim that the establishment of capital punishment gives

birth to a culture of violence endorsed by the state It perpetuates the cycle of aggression and

brutality something which the state should be actively inhibiting not endorsing

Wrongful Convictions

The death penalty carries with it the danger of wrongfully convicting an innocent person for

crimes he did not commit There is the potential for capital punishment to evolve into sheer

miscarriage of justice as in certain circumstances states are often seen to rush the trials and

convict the accused hastily This practice takes foremost apparently in military courts often in

119

Cavadino M amp Dignan J (1997) The Penal System An Introduction (2nd ed) p 39 London Sage 120

httpdictionaryreferencecombrowseretributivism 121

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 32 of 44

the developing or lesser-developed countries where the system of law is not properly established

It is not however exclusive to these countries Examples can be drawn from countries like

Philippines Thailand Iran and Palestine to name just a few where executions are carried out at

alarming pace removing the possibility of reviews

On 15 August 2004 Atefah Rajabi Sahaaleh was hanged in a public square in the Iranian city of

Neka Her death sentence was imposed for adultery and crimes against chastity122123

Atefah

was executed a week after the trial was run Following the execution the Judge for the case was

arrested for investigation by the Intelligence Ministry The media reported that in addition to the

confession of his rape of Atefeh Judge Rezai who served as judge jury and executioner also

confessed to torturing her during interrogations to extract names of others she had relations with

No transcripts from court proceedings were recorded The State alleged that Atefah was 22 at the

time of her execution A witness later claimed The judge just looked at her body because of

the developed physique and declared her as 22124

ndash her birth certificate revealed she was born

in 1988 Furthermore Atefah did not have access to a proper defense where she could contest

charges leveled against her This is one example of many such cases of miscarriage of justice

Something that recurs in these cases is the failure of the police or prosecuting authorities to

prevent the use of unreliable witnesses the misuse of evidence or confessions and the provision

of inadequate defense representation The advent of DNA profiling and the use of it as positive

evidence in criminal cases has resulted in the exoneration of multiple death row inmates on

grounds of forensic evidence or lack thereof Since 1973 138 people have been released from

death row in the United States after it was proven that they were innocent125

In 2009 Paul

House was cleared of murder and exonerated in Tennessee USA after having served 22 years

on death row His innocence was proclaimed in light of substantial additional DNA testing and

further investigationlsquo 126

Amnesty International has noted examples of wrongful convictions from elsewhere as well

including Jamaica Japan China Nigeria and Tanzania127

Paul G Cassell a former law clerk to

the Chief Justice of USA stated the mistaken release of guilty murderers should be of far greater

concern than the speculative and heretofore nonexistent risk of the mistaken execution of an

innocent personlsquo highlighting the case made by those who advocate the death penalty even in

light of wrongful convictions128

122

httpwwwcosmolearningcomdocumentariesexecution-of-a-teenage-girl1 123

httpnewsbbccouk2hi5217424stm 124

httpnewsbbccouk2hi5217424stm 125

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 126

httparticlescnncom2009-05-13justicetennesseeexonerated_1_death-row-inmate-dna-evidence-house-

arrest_s=PMCRIME 127

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 128

httpdeathpenaltycurriculumorgstudentcaboutargumentstestimony3bhtm

UNHRC 33 of 44

Alternative to Death Penalty

All abolitionist states have reverted to the practice of sentencing criminals to life imprisonment

(some without parole) which is also termed as death by incarceration Widely regarded as a more

humane course of action life imprisonment is also alleged to be a more economical practice

While ensuring public safety by keeping criminals away from society this system also saves the

lives of innocent people who have been falsely or wrongfully convicted The setup inhibits and

curbs the cycle of violence while retaining the deterrence factor it is strongly asserted

Advocates for the death penalty are averse towards life imprisonment for a number of reasons

They cite the unreliability of the system as one of the flaws which impedes the possibility of

such a sentence being successful A certain James Moore serves as a valid example in this case

In 1962 James Moore raped and strangled 14-year-old Pamela Moss The victimlsquos parents opted

out of capital punishment for Moore and he was instead sentenced to life in prison without

parole Twenty years later a change in sentencing laws in 1982 renders James Moore eligible for

parole every two years129130

Kenneth McDuff is another example McDuff was convicted and sentenced to life imprisonment

Years later due to the issue of overcrowding in prisons McDuff was released following which

he killed eight more people McDufflsquos example is of an individual from a developed country

with an established legal system in place131

Overcrowding is a feature of prisons in developing

or lesser developed countries In many such states criminals have also been known to easily

break out from penitentiaries

The economic aspect of the debate is murky at best There is a lack of empirical data on the

subject which is why the arguments of both these sides cannot be settled beyond doubt

Advocates of capital punishment insist that the overall costs of the practice are far lesser than the

costs of housing an inmate for a lifetime132

They also suggest that the life imprisonment allows

criminals to conceive new habeas corpus petitions which on legal grounds cannot be rejected

automatically resulting in more trials

On the other hand substantial arguments are made which stress that the cost of legal proceedings

in capital cases is in truth more than that of other cases States and nations spend a significant

portion of the taxpayerlsquos money in meting out such punishments133

Delegates when addressing

this portion of the debate will need to be aware of the financial aspects of the issue as it forms

for many states an important part of whether capital punishment should be revoked or

not

129

httpwesleylowecomcphtmldeter 130

httpwwwnytimescomkeywordparole 131

httpwesleylowecomcphtmldeter 132

Ibid ndash view section titled Capital Punishment and its costslsquo 133

httpwwwamnestyusaorgour-workissuesdeath-penaltyus-death-penalty-factsdeath-penalty-cost

UNHRC 34 of 44

Imposition of Death Penalty on Juveniles

The prohibition on the death penalty for crimes committed by juvenile offendersmdashpersons under

age 18 at the time of the offensemdashis well established in international law specifically in the

Convention on the Rights of Child

ldquoNo child shall be subjected to torture or other cruel inhuman or degrading treatment or

punishment Neither capital punishment nor life imprisonment without possibility of release shall

be imposed for offences committed by persons below eighteen years of agerdquo134

- Article 37(a) Convention on the Rights of Child

ldquoSentence of death shall not be imposed for crimes committed by persons below eighteen years

of age and shall not be carried out on pregnant womenrdquo135

- Article 6(5) International Covenant on Civil and Political Rights

The treaties are a unanimously agreed set of non-negotiable standards and obligations By

acceding to the treaties and ratifying them governments commit to protecting and ensuring

childrens rights and to holding themselves accountable for this commitment before the

international community

Even though the practice of capital punishment on juveniles is relatively rare however in clear

contravention of international law nine countries have executed offenders who were juveniles at

the time of their crimes between 1990 and 2005136

These countries include the Peoples Republic

of China (PRC) the Democratic Republic of the Congo Iran Nigeria Pakistan Saudi Arabia

Sudan the United States and Yemen137

The USA has since moved to implement a ban on capital

punishment for juveniles However in most other countries of the preceding list the practice is

still enshrined in the judicial system Iranlsquos record in particular has been abominable over the last

decade It has carried out 39 executions of persons under the age of 18 since 2005 Presently

over a hundred individuals are placed on death row for crimes committed as juveniles The

executions of Mahmoud Asgari Ayaz Marhoni and Makwan Moloudzadeh became international

symbols of Irans child capital punishment and the judicial system that hands down such

134

httpwww2ohchrorgenglishlawcrchtm 135

httpwww2ohchrorgenglishlawccprhtm 136

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf - This document by the Human Rights Watch

called The Last Holdoutslsquo is a good summary of juvenile executions and should be reviewed 137

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 - Contains a list with

statistics and details of countries which have allowed the imposition of death sentence to juveniles

UNHRC 35 of 44

sentences138139140

Saudi Arabia and China too have questionable records that need to be

scrutinized further

While regional treaties and charters usually substantiate international law the Arab Human

Rights Charter of 2004 is unique among regional and international treaties in that the ban on the

juvenile death penalty in it is not absolute but merely optional141

Furthermore national laws in states that observe such a practice are in violation of

international legally-binding charters In Iran and Saudi Arabia laws usually treat a child the

same way as an adult criminal offender would be treated Article 10(3) of the International

Covenant on Civil and Political Rights emphasizes the need for demarcation between the

handling of children and that of adults in stating ―Juvenile offenders shall be segregated from

adults and be accorded treatment appropriate to their age and legal status142

The definition of a child in these Muslim states is unclear as adulthood is associated with

attainment of puberty which is a relative concept The Committee on the Rights of the Child in

January 2005 censured the Saudi government for its practice of imposing the death penalty on

juveniles terming it a serious violation of the fundamental rights The committee was deeply

alarmed over the discretionary power judges hold to treat juveniles as adults as was stated in

the committeelsquos report Iran too was strongly condemned following the release of an

international report highlighting the dire situation in Iran by the International for Human Rights 143

138

httpwwwfoxnewscomstory0293329798200html 139

httpnewsbbccouk2himiddle_east7130380stm 140

httpenwikipediaorgwikiCapital_punishmentIran 141

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 142

httpwww2ohchrorgenglishlawccprhtm 143

httpwwwfidhorgIMGpdfRapport_Iran_finalpdf

UNHRC 36 of 44

On August 19 2008 Iranian authorities executed Seyyed Reza Hejazi at Isfahan Central Prison

for his role in a murder committed in 2003 when he was 15 Hejazi was tried as an adult by

Branch 106 of the Isfahan General Court even if he did not qualify as one under international

stipulations and sentenced to death on November 14 2005144

In Saudi Arabia Mu`id bin

Husayn bin Abu al-Qasim bin `Ali Hakami was executed on July 10 2007 for a murder he

allegedly committed three years earlier when he was 13 years old145

The judges in these states

because of the implementation of the Sharialsquo law have a large amount of discretion with regard

to their rulings This discretion is often abused in the interrogation and judicial proceedings In

Pakistan authorities hanged Mutaber Khan in Peshawar Central Prison on June 13 2006 on

charges of murder of five people The fact that he was held in the juvenile wing of Peshawar

Central prison and the evidence presented by the accused confirming that his age was below 18

at the time of the killings were not taken into account during the trials and Mutaber was charged

as an adult in the case146

While the above does not cover exhaustively the practice of capitally punishing juveniles the

committee is expected to be well read on the matter The committee will be required to devise

ways to strictly apply the existing international law on the subject to curtail further deaths of

juveniles by states A series of recommendations on better implementation of international

covenants will be expected from the committee Delegates at UNHRC will also have to

familiarize themselves with the stipulations in the national laws of countries practicing juvenile

death penalties (Iran Saudi Arabia Pakistan Nigeria Sudan Yemen and UAE among others) to

discuss how these states are constitutionally able to bend international law and mete out the

illegal punishments

144

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 145

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 146

See FIDH and Human Rights Commission of Pakistan ―Slow march to the gallows and ―Condemned Prisoner

Executed Dawn Newspaper Karachi June 14 2005 httpwwwdawncom20060614nat16htm

UNHRC 37 of 44

Universality of Laws Incurring the Death Penalty

In countries which have not abolished the death penalty capital punishment may be imposed

only for the most serious crimes it being understood that their scope should not go beyond

intentional crimes with lethal or other extremely grave consequences

- Safeguards guaranteeing protection of the rights of those facing the death penalty147

Laws incurring the death penalty or capital crimes have certain uniformity the world over This

is of course barring states that are religiously affiliated and whose law systems are not secular

in nature The list of capital crimes for those states with non-secular legal systems is slightly

different The Human Rights Commission had decided that the imposition in the State party of

the death penalty for offences which cannot be characterized as the most serious including

apostasy committing a third homosexual act illicit sex embezzlement by officials and theft by

force are incompatible with Article 6 of the Covenant Economic offences including

embezzlement drug related offences political offences and robbery were also referred to148

The reason why looking into capital crimes and trying to garner a global impression of them is

important is that the death penalty can only realistically be abolished in a piecemeal way This

process will entail shortening the list of capital crimes The UN formally notes that ―in order

fully to guarantee the right to life provided for in article 3 of the Universal Declaration of

Human Rights the main objective to be pursued is that of progressively restricting the number of

offences for which capital punishment may be imposed with a view to the desirability of

abolishing this punishment in all countries149

The first established death penalty laws date as far back as the Eighteenth Century BC in the

Code of King Hammaurabi of Babylon which codified the death penalty for 25 different crimes

By the 1700s 222 crimes were punishable by death in Britain including stealing cutting down a

tree and robbing a rabbit warren In the 19th

century the death penalty was eliminated for over

100 of the 222 crimes punishable by death 150

In modern times the UN Special Rapporteur on

extrajudicial summary or arbitrary executions has stated that the death penalty should be

eliminated for economic crimes and drug-related offences and that the restrictions to its use

―exclude the possibility of death sentences for so-called victimless offences ndash including acts of

treason espionage and other vaguely defined acts usually described as crimes against the Statelsquo

or disloyaltylsquo and ―actions primarily related to prevailing moral values such as adultery and

prostitution as well as matters of sexual orientation151

147

httpwww2ohchrorgenglishlawpdfprotectionpdf 148

httpwwwunhchrchtbsdocnsf0bc310a747155dff88025655300537faeOpendocument 149

General Assembly resolution 2857 httpwwwunodcorgpdfcompendiumcompendium_2006_part_01_05pdf 150

httpdeathpenaltycurriculumorgstudentcabouthistoryhistoryPDF 151

httpswwwabofimedia24259report10pdf

UNHRC 38 of 44

Contrary to the made recommendations even political dissent warrants a death sentence in

several countries most notably in China and Iran In 2010 nearly 20 Kurdish people were

executed for political offences in Iran The country is known for keeping dissent especially from

the Kurds suppressed Most are executed on the grounds of moharebeh or enmity against God

Moreover challenging the power of the Ayatollah is also punishable by death These charges are

neither explicit nor in line with international guidelines over what crimes are punishable

capitally In Iran judges must handle such cases carefully as Iranian law provides for only one

punishment if an individual is found to be guilty of treason Libya too thwarts political dissent

with firm laws in place for punishing by death those who illegally form groups organizations or

associations against the state152

Saudi Arabia too is worth note for its vaguely phrased laws governing capital punishment

Intentional murder and crimes that spread ―mischief in the land (Fasad fil-ardh) merit death In

2010 the government announced that it had executed 26 people all by beheading Crimes that

―spread mischief include witchcraft and sorcery153

How is one convicted of witchcraft in the

21st century What can the international community do when regarding countries such as these

Treason arguably along with murder is the capital crime that has yet to be phased out by many

countries In some such as Brazil treason during warfare is the only crime for which a person

can be sentenced to death In the Gaza Strip under Hamas any sort of cooperation with Israeli

forces during military actions is also punishable by death In others including Algeria Bahrain

Iran and Malaysia treason is punishable by death in all circumstances The United States too has

federal laws governing treason under which traitors ―shall suffer death154

Child sex abuse is another crime that is widely held to merit the death penalty In Russia for

example according to the Russian Public Opinion Research Center an overwhelming majority

consider the death penalty to be an acceptable punishment especially in relation to molestation

155 In 2009 however Russias Constitutional Court effectively abolished the death penalty by

extending indefinitely a 13-year-old moratorium on capital punishment156

Indonesia has some of the strictest penalties for drug related crimes in the world Roughly half of

those on death row are incriminated with drug-related charges157

In 2008 though the most high

profile executions were of terrorists Three of those found responsible for the 2002 Bali

bombings were executed by shooting158

Generally speaking however a significant proportion of

152

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 153

httpwwwstategovgdrlrlshrrpt2010nea154472htm 154

httpdeathpenaltyproconorgviewresourcephpresourceID=1172 155

httpenrianrutrenddeath_penalty 156

httpwwwreuterscomarticle20091119idUSLJ330478 157

httpwwwnytimescom20080711worldasia11iht-indo114421132html 158

httpnewsbbccouk2hiasia-pacific7718246stm

UNHRC 39 of 44

the executions or death sentences recorded (in 2010) in China Egypt Indonesia Iran Laos

Libya Thailand United Arab Emirates and Yemen were for drug-related offences In December

2010 the amended Anti-Narcotics law came into force in Iran extending the scope of the death

penalty to include additional categories of illegal drugs (for example crystal meth) possession

of which became punishable by death Also around the same time the National Assembly of

Gambia voted to extend the scope of the death penalty by making the possession of more than

250g of heroin or cocaine an offence punishable by death159

Several states allow for the death penalty for crimes of blasphemy and other crimes for

nonviolent expression and association In Pakistan Aasia Bibi a Christian mother of five was

charged with blasphemy and sentenced to death after a trial largely believed to be unfair on 8

November 2010 She is currently on death row The country is also noted for its laws concerning

capital crimes The list includes 27 crimes most of which go beyond the notion of ―most serious

crimes as recommended by the International Covenant on Civil and Political Rights Extra-

marital sex and blasphemy are examples of some capital crimes in the country In December

2007 Pakistan voted against a United Nation General Assembly resolution for a moratorium on

the death penalty The year before however the nation amended its law on rape and adultery

charges which are no longer punishable by death160

As far back as 1989 recommendations have been made as to how to abolish the death penalty

Member states (of the UN) have been urged ―to publish for each category of offence for which

the death penalty is authorized and if possible on an annual basis information about the use of

the death penalty including the number of persons sentenced to death the number of executions

actually carried out the number of persons under sentence of death the number of death

sentences reversed or commuted on appeal and the number of instances in which clemency has

been granted and to include information on the extent to which the safeguards referred to above

are incorporated in national law161

The committee must inspect how far this recommendation

has been adopted and should seek to rectify the weaknesses in the system of gradually

abolishing the death penalty Can a target year be designated by which crimes meriting the death

penalty could be made universal How can countries with non-secular legal systems be brought

into the fold of international law

159

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 160

httpwwwfiacatorgenIMGpdfdppakistan-enpdf 161

httpgraduateinstitutechfacultyclaphamhrdocdocsecosocresolutiondeathpen1989html

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 35: UNHRCFINAL

UNHRC 31 of 44

The lack of evidence on the production of a unique deterrent effect points to the danger of

relying on the deterrence hypothesis as a basis for public policy on the death penalty

Retribution amp Morality

An important terminology that delegates need to familiarize themselves with is that of

―retributivism119

It is defined as ―a policy of criminal justice that sponsors the punishment of

criminals in retribution for the harm they have inflicted120

Criminals deserve to be punished in

proportion to the gravity of their crime regardless of whether the victim or anyone else desires

it we may all deeply regret having to carry out the punishment but consider it warrantedlsquo is

what many say in defense of the theory121

The need for the establishment of a visibly just state arises from the potential risks of not having

one As has been visible in many developing countries with shaky legal systems when criminals

are not adequately punished for their unlawful behavior the public takes the law into its own

hands and deals out vigilante justice It is asserted that retributivism is essential for a functioning

society where individuals respect the supremacy of law

The concept of retribution in society is also grounded in religious beliefs The concept of an eye

for an eye has been a part of all three Abrahamic traditions However in the modern world it is

Islamic nations that still retain the practice based on these grounds Similar traditions can be

found in Hinduism Christianity and Buddhism as well as other religions in different parts of the

world In many non-secular countries the constitutions and state laws are derived from religious

doctrines

Opponents dismiss this aspect of the argument as being emotionally charged with little rational

logic to support the contention They claim that the establishment of capital punishment gives

birth to a culture of violence endorsed by the state It perpetuates the cycle of aggression and

brutality something which the state should be actively inhibiting not endorsing

Wrongful Convictions

The death penalty carries with it the danger of wrongfully convicting an innocent person for

crimes he did not commit There is the potential for capital punishment to evolve into sheer

miscarriage of justice as in certain circumstances states are often seen to rush the trials and

convict the accused hastily This practice takes foremost apparently in military courts often in

119

Cavadino M amp Dignan J (1997) The Penal System An Introduction (2nd ed) p 39 London Sage 120

httpdictionaryreferencecombrowseretributivism 121

httpdeathpenaltycurriculumorgstudentcaboutargumentsargumentsPDF

UNHRC 32 of 44

the developing or lesser-developed countries where the system of law is not properly established

It is not however exclusive to these countries Examples can be drawn from countries like

Philippines Thailand Iran and Palestine to name just a few where executions are carried out at

alarming pace removing the possibility of reviews

On 15 August 2004 Atefah Rajabi Sahaaleh was hanged in a public square in the Iranian city of

Neka Her death sentence was imposed for adultery and crimes against chastity122123

Atefah

was executed a week after the trial was run Following the execution the Judge for the case was

arrested for investigation by the Intelligence Ministry The media reported that in addition to the

confession of his rape of Atefeh Judge Rezai who served as judge jury and executioner also

confessed to torturing her during interrogations to extract names of others she had relations with

No transcripts from court proceedings were recorded The State alleged that Atefah was 22 at the

time of her execution A witness later claimed The judge just looked at her body because of

the developed physique and declared her as 22124

ndash her birth certificate revealed she was born

in 1988 Furthermore Atefah did not have access to a proper defense where she could contest

charges leveled against her This is one example of many such cases of miscarriage of justice

Something that recurs in these cases is the failure of the police or prosecuting authorities to

prevent the use of unreliable witnesses the misuse of evidence or confessions and the provision

of inadequate defense representation The advent of DNA profiling and the use of it as positive

evidence in criminal cases has resulted in the exoneration of multiple death row inmates on

grounds of forensic evidence or lack thereof Since 1973 138 people have been released from

death row in the United States after it was proven that they were innocent125

In 2009 Paul

House was cleared of murder and exonerated in Tennessee USA after having served 22 years

on death row His innocence was proclaimed in light of substantial additional DNA testing and

further investigationlsquo 126

Amnesty International has noted examples of wrongful convictions from elsewhere as well

including Jamaica Japan China Nigeria and Tanzania127

Paul G Cassell a former law clerk to

the Chief Justice of USA stated the mistaken release of guilty murderers should be of far greater

concern than the speculative and heretofore nonexistent risk of the mistaken execution of an

innocent personlsquo highlighting the case made by those who advocate the death penalty even in

light of wrongful convictions128

122

httpwwwcosmolearningcomdocumentariesexecution-of-a-teenage-girl1 123

httpnewsbbccouk2hi5217424stm 124

httpnewsbbccouk2hi5217424stm 125

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 126

httparticlescnncom2009-05-13justicetennesseeexonerated_1_death-row-inmate-dna-evidence-house-

arrest_s=PMCRIME 127

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 128

httpdeathpenaltycurriculumorgstudentcaboutargumentstestimony3bhtm

UNHRC 33 of 44

Alternative to Death Penalty

All abolitionist states have reverted to the practice of sentencing criminals to life imprisonment

(some without parole) which is also termed as death by incarceration Widely regarded as a more

humane course of action life imprisonment is also alleged to be a more economical practice

While ensuring public safety by keeping criminals away from society this system also saves the

lives of innocent people who have been falsely or wrongfully convicted The setup inhibits and

curbs the cycle of violence while retaining the deterrence factor it is strongly asserted

Advocates for the death penalty are averse towards life imprisonment for a number of reasons

They cite the unreliability of the system as one of the flaws which impedes the possibility of

such a sentence being successful A certain James Moore serves as a valid example in this case

In 1962 James Moore raped and strangled 14-year-old Pamela Moss The victimlsquos parents opted

out of capital punishment for Moore and he was instead sentenced to life in prison without

parole Twenty years later a change in sentencing laws in 1982 renders James Moore eligible for

parole every two years129130

Kenneth McDuff is another example McDuff was convicted and sentenced to life imprisonment

Years later due to the issue of overcrowding in prisons McDuff was released following which

he killed eight more people McDufflsquos example is of an individual from a developed country

with an established legal system in place131

Overcrowding is a feature of prisons in developing

or lesser developed countries In many such states criminals have also been known to easily

break out from penitentiaries

The economic aspect of the debate is murky at best There is a lack of empirical data on the

subject which is why the arguments of both these sides cannot be settled beyond doubt

Advocates of capital punishment insist that the overall costs of the practice are far lesser than the

costs of housing an inmate for a lifetime132

They also suggest that the life imprisonment allows

criminals to conceive new habeas corpus petitions which on legal grounds cannot be rejected

automatically resulting in more trials

On the other hand substantial arguments are made which stress that the cost of legal proceedings

in capital cases is in truth more than that of other cases States and nations spend a significant

portion of the taxpayerlsquos money in meting out such punishments133

Delegates when addressing

this portion of the debate will need to be aware of the financial aspects of the issue as it forms

for many states an important part of whether capital punishment should be revoked or

not

129

httpwesleylowecomcphtmldeter 130

httpwwwnytimescomkeywordparole 131

httpwesleylowecomcphtmldeter 132

Ibid ndash view section titled Capital Punishment and its costslsquo 133

httpwwwamnestyusaorgour-workissuesdeath-penaltyus-death-penalty-factsdeath-penalty-cost

UNHRC 34 of 44

Imposition of Death Penalty on Juveniles

The prohibition on the death penalty for crimes committed by juvenile offendersmdashpersons under

age 18 at the time of the offensemdashis well established in international law specifically in the

Convention on the Rights of Child

ldquoNo child shall be subjected to torture or other cruel inhuman or degrading treatment or

punishment Neither capital punishment nor life imprisonment without possibility of release shall

be imposed for offences committed by persons below eighteen years of agerdquo134

- Article 37(a) Convention on the Rights of Child

ldquoSentence of death shall not be imposed for crimes committed by persons below eighteen years

of age and shall not be carried out on pregnant womenrdquo135

- Article 6(5) International Covenant on Civil and Political Rights

The treaties are a unanimously agreed set of non-negotiable standards and obligations By

acceding to the treaties and ratifying them governments commit to protecting and ensuring

childrens rights and to holding themselves accountable for this commitment before the

international community

Even though the practice of capital punishment on juveniles is relatively rare however in clear

contravention of international law nine countries have executed offenders who were juveniles at

the time of their crimes between 1990 and 2005136

These countries include the Peoples Republic

of China (PRC) the Democratic Republic of the Congo Iran Nigeria Pakistan Saudi Arabia

Sudan the United States and Yemen137

The USA has since moved to implement a ban on capital

punishment for juveniles However in most other countries of the preceding list the practice is

still enshrined in the judicial system Iranlsquos record in particular has been abominable over the last

decade It has carried out 39 executions of persons under the age of 18 since 2005 Presently

over a hundred individuals are placed on death row for crimes committed as juveniles The

executions of Mahmoud Asgari Ayaz Marhoni and Makwan Moloudzadeh became international

symbols of Irans child capital punishment and the judicial system that hands down such

134

httpwww2ohchrorgenglishlawcrchtm 135

httpwww2ohchrorgenglishlawccprhtm 136

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf - This document by the Human Rights Watch

called The Last Holdoutslsquo is a good summary of juvenile executions and should be reviewed 137

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 - Contains a list with

statistics and details of countries which have allowed the imposition of death sentence to juveniles

UNHRC 35 of 44

sentences138139140

Saudi Arabia and China too have questionable records that need to be

scrutinized further

While regional treaties and charters usually substantiate international law the Arab Human

Rights Charter of 2004 is unique among regional and international treaties in that the ban on the

juvenile death penalty in it is not absolute but merely optional141

Furthermore national laws in states that observe such a practice are in violation of

international legally-binding charters In Iran and Saudi Arabia laws usually treat a child the

same way as an adult criminal offender would be treated Article 10(3) of the International

Covenant on Civil and Political Rights emphasizes the need for demarcation between the

handling of children and that of adults in stating ―Juvenile offenders shall be segregated from

adults and be accorded treatment appropriate to their age and legal status142

The definition of a child in these Muslim states is unclear as adulthood is associated with

attainment of puberty which is a relative concept The Committee on the Rights of the Child in

January 2005 censured the Saudi government for its practice of imposing the death penalty on

juveniles terming it a serious violation of the fundamental rights The committee was deeply

alarmed over the discretionary power judges hold to treat juveniles as adults as was stated in

the committeelsquos report Iran too was strongly condemned following the release of an

international report highlighting the dire situation in Iran by the International for Human Rights 143

138

httpwwwfoxnewscomstory0293329798200html 139

httpnewsbbccouk2himiddle_east7130380stm 140

httpenwikipediaorgwikiCapital_punishmentIran 141

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 142

httpwww2ohchrorgenglishlawccprhtm 143

httpwwwfidhorgIMGpdfRapport_Iran_finalpdf

UNHRC 36 of 44

On August 19 2008 Iranian authorities executed Seyyed Reza Hejazi at Isfahan Central Prison

for his role in a murder committed in 2003 when he was 15 Hejazi was tried as an adult by

Branch 106 of the Isfahan General Court even if he did not qualify as one under international

stipulations and sentenced to death on November 14 2005144

In Saudi Arabia Mu`id bin

Husayn bin Abu al-Qasim bin `Ali Hakami was executed on July 10 2007 for a murder he

allegedly committed three years earlier when he was 13 years old145

The judges in these states

because of the implementation of the Sharialsquo law have a large amount of discretion with regard

to their rulings This discretion is often abused in the interrogation and judicial proceedings In

Pakistan authorities hanged Mutaber Khan in Peshawar Central Prison on June 13 2006 on

charges of murder of five people The fact that he was held in the juvenile wing of Peshawar

Central prison and the evidence presented by the accused confirming that his age was below 18

at the time of the killings were not taken into account during the trials and Mutaber was charged

as an adult in the case146

While the above does not cover exhaustively the practice of capitally punishing juveniles the

committee is expected to be well read on the matter The committee will be required to devise

ways to strictly apply the existing international law on the subject to curtail further deaths of

juveniles by states A series of recommendations on better implementation of international

covenants will be expected from the committee Delegates at UNHRC will also have to

familiarize themselves with the stipulations in the national laws of countries practicing juvenile

death penalties (Iran Saudi Arabia Pakistan Nigeria Sudan Yemen and UAE among others) to

discuss how these states are constitutionally able to bend international law and mete out the

illegal punishments

144

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 145

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 146

See FIDH and Human Rights Commission of Pakistan ―Slow march to the gallows and ―Condemned Prisoner

Executed Dawn Newspaper Karachi June 14 2005 httpwwwdawncom20060614nat16htm

UNHRC 37 of 44

Universality of Laws Incurring the Death Penalty

In countries which have not abolished the death penalty capital punishment may be imposed

only for the most serious crimes it being understood that their scope should not go beyond

intentional crimes with lethal or other extremely grave consequences

- Safeguards guaranteeing protection of the rights of those facing the death penalty147

Laws incurring the death penalty or capital crimes have certain uniformity the world over This

is of course barring states that are religiously affiliated and whose law systems are not secular

in nature The list of capital crimes for those states with non-secular legal systems is slightly

different The Human Rights Commission had decided that the imposition in the State party of

the death penalty for offences which cannot be characterized as the most serious including

apostasy committing a third homosexual act illicit sex embezzlement by officials and theft by

force are incompatible with Article 6 of the Covenant Economic offences including

embezzlement drug related offences political offences and robbery were also referred to148

The reason why looking into capital crimes and trying to garner a global impression of them is

important is that the death penalty can only realistically be abolished in a piecemeal way This

process will entail shortening the list of capital crimes The UN formally notes that ―in order

fully to guarantee the right to life provided for in article 3 of the Universal Declaration of

Human Rights the main objective to be pursued is that of progressively restricting the number of

offences for which capital punishment may be imposed with a view to the desirability of

abolishing this punishment in all countries149

The first established death penalty laws date as far back as the Eighteenth Century BC in the

Code of King Hammaurabi of Babylon which codified the death penalty for 25 different crimes

By the 1700s 222 crimes were punishable by death in Britain including stealing cutting down a

tree and robbing a rabbit warren In the 19th

century the death penalty was eliminated for over

100 of the 222 crimes punishable by death 150

In modern times the UN Special Rapporteur on

extrajudicial summary or arbitrary executions has stated that the death penalty should be

eliminated for economic crimes and drug-related offences and that the restrictions to its use

―exclude the possibility of death sentences for so-called victimless offences ndash including acts of

treason espionage and other vaguely defined acts usually described as crimes against the Statelsquo

or disloyaltylsquo and ―actions primarily related to prevailing moral values such as adultery and

prostitution as well as matters of sexual orientation151

147

httpwww2ohchrorgenglishlawpdfprotectionpdf 148

httpwwwunhchrchtbsdocnsf0bc310a747155dff88025655300537faeOpendocument 149

General Assembly resolution 2857 httpwwwunodcorgpdfcompendiumcompendium_2006_part_01_05pdf 150

httpdeathpenaltycurriculumorgstudentcabouthistoryhistoryPDF 151

httpswwwabofimedia24259report10pdf

UNHRC 38 of 44

Contrary to the made recommendations even political dissent warrants a death sentence in

several countries most notably in China and Iran In 2010 nearly 20 Kurdish people were

executed for political offences in Iran The country is known for keeping dissent especially from

the Kurds suppressed Most are executed on the grounds of moharebeh or enmity against God

Moreover challenging the power of the Ayatollah is also punishable by death These charges are

neither explicit nor in line with international guidelines over what crimes are punishable

capitally In Iran judges must handle such cases carefully as Iranian law provides for only one

punishment if an individual is found to be guilty of treason Libya too thwarts political dissent

with firm laws in place for punishing by death those who illegally form groups organizations or

associations against the state152

Saudi Arabia too is worth note for its vaguely phrased laws governing capital punishment

Intentional murder and crimes that spread ―mischief in the land (Fasad fil-ardh) merit death In

2010 the government announced that it had executed 26 people all by beheading Crimes that

―spread mischief include witchcraft and sorcery153

How is one convicted of witchcraft in the

21st century What can the international community do when regarding countries such as these

Treason arguably along with murder is the capital crime that has yet to be phased out by many

countries In some such as Brazil treason during warfare is the only crime for which a person

can be sentenced to death In the Gaza Strip under Hamas any sort of cooperation with Israeli

forces during military actions is also punishable by death In others including Algeria Bahrain

Iran and Malaysia treason is punishable by death in all circumstances The United States too has

federal laws governing treason under which traitors ―shall suffer death154

Child sex abuse is another crime that is widely held to merit the death penalty In Russia for

example according to the Russian Public Opinion Research Center an overwhelming majority

consider the death penalty to be an acceptable punishment especially in relation to molestation

155 In 2009 however Russias Constitutional Court effectively abolished the death penalty by

extending indefinitely a 13-year-old moratorium on capital punishment156

Indonesia has some of the strictest penalties for drug related crimes in the world Roughly half of

those on death row are incriminated with drug-related charges157

In 2008 though the most high

profile executions were of terrorists Three of those found responsible for the 2002 Bali

bombings were executed by shooting158

Generally speaking however a significant proportion of

152

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 153

httpwwwstategovgdrlrlshrrpt2010nea154472htm 154

httpdeathpenaltyproconorgviewresourcephpresourceID=1172 155

httpenrianrutrenddeath_penalty 156

httpwwwreuterscomarticle20091119idUSLJ330478 157

httpwwwnytimescom20080711worldasia11iht-indo114421132html 158

httpnewsbbccouk2hiasia-pacific7718246stm

UNHRC 39 of 44

the executions or death sentences recorded (in 2010) in China Egypt Indonesia Iran Laos

Libya Thailand United Arab Emirates and Yemen were for drug-related offences In December

2010 the amended Anti-Narcotics law came into force in Iran extending the scope of the death

penalty to include additional categories of illegal drugs (for example crystal meth) possession

of which became punishable by death Also around the same time the National Assembly of

Gambia voted to extend the scope of the death penalty by making the possession of more than

250g of heroin or cocaine an offence punishable by death159

Several states allow for the death penalty for crimes of blasphemy and other crimes for

nonviolent expression and association In Pakistan Aasia Bibi a Christian mother of five was

charged with blasphemy and sentenced to death after a trial largely believed to be unfair on 8

November 2010 She is currently on death row The country is also noted for its laws concerning

capital crimes The list includes 27 crimes most of which go beyond the notion of ―most serious

crimes as recommended by the International Covenant on Civil and Political Rights Extra-

marital sex and blasphemy are examples of some capital crimes in the country In December

2007 Pakistan voted against a United Nation General Assembly resolution for a moratorium on

the death penalty The year before however the nation amended its law on rape and adultery

charges which are no longer punishable by death160

As far back as 1989 recommendations have been made as to how to abolish the death penalty

Member states (of the UN) have been urged ―to publish for each category of offence for which

the death penalty is authorized and if possible on an annual basis information about the use of

the death penalty including the number of persons sentenced to death the number of executions

actually carried out the number of persons under sentence of death the number of death

sentences reversed or commuted on appeal and the number of instances in which clemency has

been granted and to include information on the extent to which the safeguards referred to above

are incorporated in national law161

The committee must inspect how far this recommendation

has been adopted and should seek to rectify the weaknesses in the system of gradually

abolishing the death penalty Can a target year be designated by which crimes meriting the death

penalty could be made universal How can countries with non-secular legal systems be brought

into the fold of international law

159

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 160

httpwwwfiacatorgenIMGpdfdppakistan-enpdf 161

httpgraduateinstitutechfacultyclaphamhrdocdocsecosocresolutiondeathpen1989html

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 36: UNHRCFINAL

UNHRC 32 of 44

the developing or lesser-developed countries where the system of law is not properly established

It is not however exclusive to these countries Examples can be drawn from countries like

Philippines Thailand Iran and Palestine to name just a few where executions are carried out at

alarming pace removing the possibility of reviews

On 15 August 2004 Atefah Rajabi Sahaaleh was hanged in a public square in the Iranian city of

Neka Her death sentence was imposed for adultery and crimes against chastity122123

Atefah

was executed a week after the trial was run Following the execution the Judge for the case was

arrested for investigation by the Intelligence Ministry The media reported that in addition to the

confession of his rape of Atefeh Judge Rezai who served as judge jury and executioner also

confessed to torturing her during interrogations to extract names of others she had relations with

No transcripts from court proceedings were recorded The State alleged that Atefah was 22 at the

time of her execution A witness later claimed The judge just looked at her body because of

the developed physique and declared her as 22124

ndash her birth certificate revealed she was born

in 1988 Furthermore Atefah did not have access to a proper defense where she could contest

charges leveled against her This is one example of many such cases of miscarriage of justice

Something that recurs in these cases is the failure of the police or prosecuting authorities to

prevent the use of unreliable witnesses the misuse of evidence or confessions and the provision

of inadequate defense representation The advent of DNA profiling and the use of it as positive

evidence in criminal cases has resulted in the exoneration of multiple death row inmates on

grounds of forensic evidence or lack thereof Since 1973 138 people have been released from

death row in the United States after it was proven that they were innocent125

In 2009 Paul

House was cleared of murder and exonerated in Tennessee USA after having served 22 years

on death row His innocence was proclaimed in light of substantial additional DNA testing and

further investigationlsquo 126

Amnesty International has noted examples of wrongful convictions from elsewhere as well

including Jamaica Japan China Nigeria and Tanzania127

Paul G Cassell a former law clerk to

the Chief Justice of USA stated the mistaken release of guilty murderers should be of far greater

concern than the speculative and heretofore nonexistent risk of the mistaken execution of an

innocent personlsquo highlighting the case made by those who advocate the death penalty even in

light of wrongful convictions128

122

httpwwwcosmolearningcomdocumentariesexecution-of-a-teenage-girl1 123

httpnewsbbccouk2hi5217424stm 124

httpnewsbbccouk2hi5217424stm 125

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 126

httparticlescnncom2009-05-13justicetennesseeexonerated_1_death-row-inmate-dna-evidence-house-

arrest_s=PMCRIME 127

httptranslategooglenotranslatehl=noampsl=noamptl=enampu=http3A2F2Fwwwamnestyno2Faktuelt2Ffl

ere-nyheter2Farkiv-bakgrunn2Fopplysninger-om-d25C325B8dsstraff 128

httpdeathpenaltycurriculumorgstudentcaboutargumentstestimony3bhtm

UNHRC 33 of 44

Alternative to Death Penalty

All abolitionist states have reverted to the practice of sentencing criminals to life imprisonment

(some without parole) which is also termed as death by incarceration Widely regarded as a more

humane course of action life imprisonment is also alleged to be a more economical practice

While ensuring public safety by keeping criminals away from society this system also saves the

lives of innocent people who have been falsely or wrongfully convicted The setup inhibits and

curbs the cycle of violence while retaining the deterrence factor it is strongly asserted

Advocates for the death penalty are averse towards life imprisonment for a number of reasons

They cite the unreliability of the system as one of the flaws which impedes the possibility of

such a sentence being successful A certain James Moore serves as a valid example in this case

In 1962 James Moore raped and strangled 14-year-old Pamela Moss The victimlsquos parents opted

out of capital punishment for Moore and he was instead sentenced to life in prison without

parole Twenty years later a change in sentencing laws in 1982 renders James Moore eligible for

parole every two years129130

Kenneth McDuff is another example McDuff was convicted and sentenced to life imprisonment

Years later due to the issue of overcrowding in prisons McDuff was released following which

he killed eight more people McDufflsquos example is of an individual from a developed country

with an established legal system in place131

Overcrowding is a feature of prisons in developing

or lesser developed countries In many such states criminals have also been known to easily

break out from penitentiaries

The economic aspect of the debate is murky at best There is a lack of empirical data on the

subject which is why the arguments of both these sides cannot be settled beyond doubt

Advocates of capital punishment insist that the overall costs of the practice are far lesser than the

costs of housing an inmate for a lifetime132

They also suggest that the life imprisonment allows

criminals to conceive new habeas corpus petitions which on legal grounds cannot be rejected

automatically resulting in more trials

On the other hand substantial arguments are made which stress that the cost of legal proceedings

in capital cases is in truth more than that of other cases States and nations spend a significant

portion of the taxpayerlsquos money in meting out such punishments133

Delegates when addressing

this portion of the debate will need to be aware of the financial aspects of the issue as it forms

for many states an important part of whether capital punishment should be revoked or

not

129

httpwesleylowecomcphtmldeter 130

httpwwwnytimescomkeywordparole 131

httpwesleylowecomcphtmldeter 132

Ibid ndash view section titled Capital Punishment and its costslsquo 133

httpwwwamnestyusaorgour-workissuesdeath-penaltyus-death-penalty-factsdeath-penalty-cost

UNHRC 34 of 44

Imposition of Death Penalty on Juveniles

The prohibition on the death penalty for crimes committed by juvenile offendersmdashpersons under

age 18 at the time of the offensemdashis well established in international law specifically in the

Convention on the Rights of Child

ldquoNo child shall be subjected to torture or other cruel inhuman or degrading treatment or

punishment Neither capital punishment nor life imprisonment without possibility of release shall

be imposed for offences committed by persons below eighteen years of agerdquo134

- Article 37(a) Convention on the Rights of Child

ldquoSentence of death shall not be imposed for crimes committed by persons below eighteen years

of age and shall not be carried out on pregnant womenrdquo135

- Article 6(5) International Covenant on Civil and Political Rights

The treaties are a unanimously agreed set of non-negotiable standards and obligations By

acceding to the treaties and ratifying them governments commit to protecting and ensuring

childrens rights and to holding themselves accountable for this commitment before the

international community

Even though the practice of capital punishment on juveniles is relatively rare however in clear

contravention of international law nine countries have executed offenders who were juveniles at

the time of their crimes between 1990 and 2005136

These countries include the Peoples Republic

of China (PRC) the Democratic Republic of the Congo Iran Nigeria Pakistan Saudi Arabia

Sudan the United States and Yemen137

The USA has since moved to implement a ban on capital

punishment for juveniles However in most other countries of the preceding list the practice is

still enshrined in the judicial system Iranlsquos record in particular has been abominable over the last

decade It has carried out 39 executions of persons under the age of 18 since 2005 Presently

over a hundred individuals are placed on death row for crimes committed as juveniles The

executions of Mahmoud Asgari Ayaz Marhoni and Makwan Moloudzadeh became international

symbols of Irans child capital punishment and the judicial system that hands down such

134

httpwww2ohchrorgenglishlawcrchtm 135

httpwww2ohchrorgenglishlawccprhtm 136

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf - This document by the Human Rights Watch

called The Last Holdoutslsquo is a good summary of juvenile executions and should be reviewed 137

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 - Contains a list with

statistics and details of countries which have allowed the imposition of death sentence to juveniles

UNHRC 35 of 44

sentences138139140

Saudi Arabia and China too have questionable records that need to be

scrutinized further

While regional treaties and charters usually substantiate international law the Arab Human

Rights Charter of 2004 is unique among regional and international treaties in that the ban on the

juvenile death penalty in it is not absolute but merely optional141

Furthermore national laws in states that observe such a practice are in violation of

international legally-binding charters In Iran and Saudi Arabia laws usually treat a child the

same way as an adult criminal offender would be treated Article 10(3) of the International

Covenant on Civil and Political Rights emphasizes the need for demarcation between the

handling of children and that of adults in stating ―Juvenile offenders shall be segregated from

adults and be accorded treatment appropriate to their age and legal status142

The definition of a child in these Muslim states is unclear as adulthood is associated with

attainment of puberty which is a relative concept The Committee on the Rights of the Child in

January 2005 censured the Saudi government for its practice of imposing the death penalty on

juveniles terming it a serious violation of the fundamental rights The committee was deeply

alarmed over the discretionary power judges hold to treat juveniles as adults as was stated in

the committeelsquos report Iran too was strongly condemned following the release of an

international report highlighting the dire situation in Iran by the International for Human Rights 143

138

httpwwwfoxnewscomstory0293329798200html 139

httpnewsbbccouk2himiddle_east7130380stm 140

httpenwikipediaorgwikiCapital_punishmentIran 141

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 142

httpwww2ohchrorgenglishlawccprhtm 143

httpwwwfidhorgIMGpdfRapport_Iran_finalpdf

UNHRC 36 of 44

On August 19 2008 Iranian authorities executed Seyyed Reza Hejazi at Isfahan Central Prison

for his role in a murder committed in 2003 when he was 15 Hejazi was tried as an adult by

Branch 106 of the Isfahan General Court even if he did not qualify as one under international

stipulations and sentenced to death on November 14 2005144

In Saudi Arabia Mu`id bin

Husayn bin Abu al-Qasim bin `Ali Hakami was executed on July 10 2007 for a murder he

allegedly committed three years earlier when he was 13 years old145

The judges in these states

because of the implementation of the Sharialsquo law have a large amount of discretion with regard

to their rulings This discretion is often abused in the interrogation and judicial proceedings In

Pakistan authorities hanged Mutaber Khan in Peshawar Central Prison on June 13 2006 on

charges of murder of five people The fact that he was held in the juvenile wing of Peshawar

Central prison and the evidence presented by the accused confirming that his age was below 18

at the time of the killings were not taken into account during the trials and Mutaber was charged

as an adult in the case146

While the above does not cover exhaustively the practice of capitally punishing juveniles the

committee is expected to be well read on the matter The committee will be required to devise

ways to strictly apply the existing international law on the subject to curtail further deaths of

juveniles by states A series of recommendations on better implementation of international

covenants will be expected from the committee Delegates at UNHRC will also have to

familiarize themselves with the stipulations in the national laws of countries practicing juvenile

death penalties (Iran Saudi Arabia Pakistan Nigeria Sudan Yemen and UAE among others) to

discuss how these states are constitutionally able to bend international law and mete out the

illegal punishments

144

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 145

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 146

See FIDH and Human Rights Commission of Pakistan ―Slow march to the gallows and ―Condemned Prisoner

Executed Dawn Newspaper Karachi June 14 2005 httpwwwdawncom20060614nat16htm

UNHRC 37 of 44

Universality of Laws Incurring the Death Penalty

In countries which have not abolished the death penalty capital punishment may be imposed

only for the most serious crimes it being understood that their scope should not go beyond

intentional crimes with lethal or other extremely grave consequences

- Safeguards guaranteeing protection of the rights of those facing the death penalty147

Laws incurring the death penalty or capital crimes have certain uniformity the world over This

is of course barring states that are religiously affiliated and whose law systems are not secular

in nature The list of capital crimes for those states with non-secular legal systems is slightly

different The Human Rights Commission had decided that the imposition in the State party of

the death penalty for offences which cannot be characterized as the most serious including

apostasy committing a third homosexual act illicit sex embezzlement by officials and theft by

force are incompatible with Article 6 of the Covenant Economic offences including

embezzlement drug related offences political offences and robbery were also referred to148

The reason why looking into capital crimes and trying to garner a global impression of them is

important is that the death penalty can only realistically be abolished in a piecemeal way This

process will entail shortening the list of capital crimes The UN formally notes that ―in order

fully to guarantee the right to life provided for in article 3 of the Universal Declaration of

Human Rights the main objective to be pursued is that of progressively restricting the number of

offences for which capital punishment may be imposed with a view to the desirability of

abolishing this punishment in all countries149

The first established death penalty laws date as far back as the Eighteenth Century BC in the

Code of King Hammaurabi of Babylon which codified the death penalty for 25 different crimes

By the 1700s 222 crimes were punishable by death in Britain including stealing cutting down a

tree and robbing a rabbit warren In the 19th

century the death penalty was eliminated for over

100 of the 222 crimes punishable by death 150

In modern times the UN Special Rapporteur on

extrajudicial summary or arbitrary executions has stated that the death penalty should be

eliminated for economic crimes and drug-related offences and that the restrictions to its use

―exclude the possibility of death sentences for so-called victimless offences ndash including acts of

treason espionage and other vaguely defined acts usually described as crimes against the Statelsquo

or disloyaltylsquo and ―actions primarily related to prevailing moral values such as adultery and

prostitution as well as matters of sexual orientation151

147

httpwww2ohchrorgenglishlawpdfprotectionpdf 148

httpwwwunhchrchtbsdocnsf0bc310a747155dff88025655300537faeOpendocument 149

General Assembly resolution 2857 httpwwwunodcorgpdfcompendiumcompendium_2006_part_01_05pdf 150

httpdeathpenaltycurriculumorgstudentcabouthistoryhistoryPDF 151

httpswwwabofimedia24259report10pdf

UNHRC 38 of 44

Contrary to the made recommendations even political dissent warrants a death sentence in

several countries most notably in China and Iran In 2010 nearly 20 Kurdish people were

executed for political offences in Iran The country is known for keeping dissent especially from

the Kurds suppressed Most are executed on the grounds of moharebeh or enmity against God

Moreover challenging the power of the Ayatollah is also punishable by death These charges are

neither explicit nor in line with international guidelines over what crimes are punishable

capitally In Iran judges must handle such cases carefully as Iranian law provides for only one

punishment if an individual is found to be guilty of treason Libya too thwarts political dissent

with firm laws in place for punishing by death those who illegally form groups organizations or

associations against the state152

Saudi Arabia too is worth note for its vaguely phrased laws governing capital punishment

Intentional murder and crimes that spread ―mischief in the land (Fasad fil-ardh) merit death In

2010 the government announced that it had executed 26 people all by beheading Crimes that

―spread mischief include witchcraft and sorcery153

How is one convicted of witchcraft in the

21st century What can the international community do when regarding countries such as these

Treason arguably along with murder is the capital crime that has yet to be phased out by many

countries In some such as Brazil treason during warfare is the only crime for which a person

can be sentenced to death In the Gaza Strip under Hamas any sort of cooperation with Israeli

forces during military actions is also punishable by death In others including Algeria Bahrain

Iran and Malaysia treason is punishable by death in all circumstances The United States too has

federal laws governing treason under which traitors ―shall suffer death154

Child sex abuse is another crime that is widely held to merit the death penalty In Russia for

example according to the Russian Public Opinion Research Center an overwhelming majority

consider the death penalty to be an acceptable punishment especially in relation to molestation

155 In 2009 however Russias Constitutional Court effectively abolished the death penalty by

extending indefinitely a 13-year-old moratorium on capital punishment156

Indonesia has some of the strictest penalties for drug related crimes in the world Roughly half of

those on death row are incriminated with drug-related charges157

In 2008 though the most high

profile executions were of terrorists Three of those found responsible for the 2002 Bali

bombings were executed by shooting158

Generally speaking however a significant proportion of

152

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 153

httpwwwstategovgdrlrlshrrpt2010nea154472htm 154

httpdeathpenaltyproconorgviewresourcephpresourceID=1172 155

httpenrianrutrenddeath_penalty 156

httpwwwreuterscomarticle20091119idUSLJ330478 157

httpwwwnytimescom20080711worldasia11iht-indo114421132html 158

httpnewsbbccouk2hiasia-pacific7718246stm

UNHRC 39 of 44

the executions or death sentences recorded (in 2010) in China Egypt Indonesia Iran Laos

Libya Thailand United Arab Emirates and Yemen were for drug-related offences In December

2010 the amended Anti-Narcotics law came into force in Iran extending the scope of the death

penalty to include additional categories of illegal drugs (for example crystal meth) possession

of which became punishable by death Also around the same time the National Assembly of

Gambia voted to extend the scope of the death penalty by making the possession of more than

250g of heroin or cocaine an offence punishable by death159

Several states allow for the death penalty for crimes of blasphemy and other crimes for

nonviolent expression and association In Pakistan Aasia Bibi a Christian mother of five was

charged with blasphemy and sentenced to death after a trial largely believed to be unfair on 8

November 2010 She is currently on death row The country is also noted for its laws concerning

capital crimes The list includes 27 crimes most of which go beyond the notion of ―most serious

crimes as recommended by the International Covenant on Civil and Political Rights Extra-

marital sex and blasphemy are examples of some capital crimes in the country In December

2007 Pakistan voted against a United Nation General Assembly resolution for a moratorium on

the death penalty The year before however the nation amended its law on rape and adultery

charges which are no longer punishable by death160

As far back as 1989 recommendations have been made as to how to abolish the death penalty

Member states (of the UN) have been urged ―to publish for each category of offence for which

the death penalty is authorized and if possible on an annual basis information about the use of

the death penalty including the number of persons sentenced to death the number of executions

actually carried out the number of persons under sentence of death the number of death

sentences reversed or commuted on appeal and the number of instances in which clemency has

been granted and to include information on the extent to which the safeguards referred to above

are incorporated in national law161

The committee must inspect how far this recommendation

has been adopted and should seek to rectify the weaknesses in the system of gradually

abolishing the death penalty Can a target year be designated by which crimes meriting the death

penalty could be made universal How can countries with non-secular legal systems be brought

into the fold of international law

159

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 160

httpwwwfiacatorgenIMGpdfdppakistan-enpdf 161

httpgraduateinstitutechfacultyclaphamhrdocdocsecosocresolutiondeathpen1989html

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 37: UNHRCFINAL

UNHRC 33 of 44

Alternative to Death Penalty

All abolitionist states have reverted to the practice of sentencing criminals to life imprisonment

(some without parole) which is also termed as death by incarceration Widely regarded as a more

humane course of action life imprisonment is also alleged to be a more economical practice

While ensuring public safety by keeping criminals away from society this system also saves the

lives of innocent people who have been falsely or wrongfully convicted The setup inhibits and

curbs the cycle of violence while retaining the deterrence factor it is strongly asserted

Advocates for the death penalty are averse towards life imprisonment for a number of reasons

They cite the unreliability of the system as one of the flaws which impedes the possibility of

such a sentence being successful A certain James Moore serves as a valid example in this case

In 1962 James Moore raped and strangled 14-year-old Pamela Moss The victimlsquos parents opted

out of capital punishment for Moore and he was instead sentenced to life in prison without

parole Twenty years later a change in sentencing laws in 1982 renders James Moore eligible for

parole every two years129130

Kenneth McDuff is another example McDuff was convicted and sentenced to life imprisonment

Years later due to the issue of overcrowding in prisons McDuff was released following which

he killed eight more people McDufflsquos example is of an individual from a developed country

with an established legal system in place131

Overcrowding is a feature of prisons in developing

or lesser developed countries In many such states criminals have also been known to easily

break out from penitentiaries

The economic aspect of the debate is murky at best There is a lack of empirical data on the

subject which is why the arguments of both these sides cannot be settled beyond doubt

Advocates of capital punishment insist that the overall costs of the practice are far lesser than the

costs of housing an inmate for a lifetime132

They also suggest that the life imprisonment allows

criminals to conceive new habeas corpus petitions which on legal grounds cannot be rejected

automatically resulting in more trials

On the other hand substantial arguments are made which stress that the cost of legal proceedings

in capital cases is in truth more than that of other cases States and nations spend a significant

portion of the taxpayerlsquos money in meting out such punishments133

Delegates when addressing

this portion of the debate will need to be aware of the financial aspects of the issue as it forms

for many states an important part of whether capital punishment should be revoked or

not

129

httpwesleylowecomcphtmldeter 130

httpwwwnytimescomkeywordparole 131

httpwesleylowecomcphtmldeter 132

Ibid ndash view section titled Capital Punishment and its costslsquo 133

httpwwwamnestyusaorgour-workissuesdeath-penaltyus-death-penalty-factsdeath-penalty-cost

UNHRC 34 of 44

Imposition of Death Penalty on Juveniles

The prohibition on the death penalty for crimes committed by juvenile offendersmdashpersons under

age 18 at the time of the offensemdashis well established in international law specifically in the

Convention on the Rights of Child

ldquoNo child shall be subjected to torture or other cruel inhuman or degrading treatment or

punishment Neither capital punishment nor life imprisonment without possibility of release shall

be imposed for offences committed by persons below eighteen years of agerdquo134

- Article 37(a) Convention on the Rights of Child

ldquoSentence of death shall not be imposed for crimes committed by persons below eighteen years

of age and shall not be carried out on pregnant womenrdquo135

- Article 6(5) International Covenant on Civil and Political Rights

The treaties are a unanimously agreed set of non-negotiable standards and obligations By

acceding to the treaties and ratifying them governments commit to protecting and ensuring

childrens rights and to holding themselves accountable for this commitment before the

international community

Even though the practice of capital punishment on juveniles is relatively rare however in clear

contravention of international law nine countries have executed offenders who were juveniles at

the time of their crimes between 1990 and 2005136

These countries include the Peoples Republic

of China (PRC) the Democratic Republic of the Congo Iran Nigeria Pakistan Saudi Arabia

Sudan the United States and Yemen137

The USA has since moved to implement a ban on capital

punishment for juveniles However in most other countries of the preceding list the practice is

still enshrined in the judicial system Iranlsquos record in particular has been abominable over the last

decade It has carried out 39 executions of persons under the age of 18 since 2005 Presently

over a hundred individuals are placed on death row for crimes committed as juveniles The

executions of Mahmoud Asgari Ayaz Marhoni and Makwan Moloudzadeh became international

symbols of Irans child capital punishment and the judicial system that hands down such

134

httpwww2ohchrorgenglishlawcrchtm 135

httpwww2ohchrorgenglishlawccprhtm 136

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf - This document by the Human Rights Watch

called The Last Holdoutslsquo is a good summary of juvenile executions and should be reviewed 137

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 - Contains a list with

statistics and details of countries which have allowed the imposition of death sentence to juveniles

UNHRC 35 of 44

sentences138139140

Saudi Arabia and China too have questionable records that need to be

scrutinized further

While regional treaties and charters usually substantiate international law the Arab Human

Rights Charter of 2004 is unique among regional and international treaties in that the ban on the

juvenile death penalty in it is not absolute but merely optional141

Furthermore national laws in states that observe such a practice are in violation of

international legally-binding charters In Iran and Saudi Arabia laws usually treat a child the

same way as an adult criminal offender would be treated Article 10(3) of the International

Covenant on Civil and Political Rights emphasizes the need for demarcation between the

handling of children and that of adults in stating ―Juvenile offenders shall be segregated from

adults and be accorded treatment appropriate to their age and legal status142

The definition of a child in these Muslim states is unclear as adulthood is associated with

attainment of puberty which is a relative concept The Committee on the Rights of the Child in

January 2005 censured the Saudi government for its practice of imposing the death penalty on

juveniles terming it a serious violation of the fundamental rights The committee was deeply

alarmed over the discretionary power judges hold to treat juveniles as adults as was stated in

the committeelsquos report Iran too was strongly condemned following the release of an

international report highlighting the dire situation in Iran by the International for Human Rights 143

138

httpwwwfoxnewscomstory0293329798200html 139

httpnewsbbccouk2himiddle_east7130380stm 140

httpenwikipediaorgwikiCapital_punishmentIran 141

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 142

httpwww2ohchrorgenglishlawccprhtm 143

httpwwwfidhorgIMGpdfRapport_Iran_finalpdf

UNHRC 36 of 44

On August 19 2008 Iranian authorities executed Seyyed Reza Hejazi at Isfahan Central Prison

for his role in a murder committed in 2003 when he was 15 Hejazi was tried as an adult by

Branch 106 of the Isfahan General Court even if he did not qualify as one under international

stipulations and sentenced to death on November 14 2005144

In Saudi Arabia Mu`id bin

Husayn bin Abu al-Qasim bin `Ali Hakami was executed on July 10 2007 for a murder he

allegedly committed three years earlier when he was 13 years old145

The judges in these states

because of the implementation of the Sharialsquo law have a large amount of discretion with regard

to their rulings This discretion is often abused in the interrogation and judicial proceedings In

Pakistan authorities hanged Mutaber Khan in Peshawar Central Prison on June 13 2006 on

charges of murder of five people The fact that he was held in the juvenile wing of Peshawar

Central prison and the evidence presented by the accused confirming that his age was below 18

at the time of the killings were not taken into account during the trials and Mutaber was charged

as an adult in the case146

While the above does not cover exhaustively the practice of capitally punishing juveniles the

committee is expected to be well read on the matter The committee will be required to devise

ways to strictly apply the existing international law on the subject to curtail further deaths of

juveniles by states A series of recommendations on better implementation of international

covenants will be expected from the committee Delegates at UNHRC will also have to

familiarize themselves with the stipulations in the national laws of countries practicing juvenile

death penalties (Iran Saudi Arabia Pakistan Nigeria Sudan Yemen and UAE among others) to

discuss how these states are constitutionally able to bend international law and mete out the

illegal punishments

144

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 145

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 146

See FIDH and Human Rights Commission of Pakistan ―Slow march to the gallows and ―Condemned Prisoner

Executed Dawn Newspaper Karachi June 14 2005 httpwwwdawncom20060614nat16htm

UNHRC 37 of 44

Universality of Laws Incurring the Death Penalty

In countries which have not abolished the death penalty capital punishment may be imposed

only for the most serious crimes it being understood that their scope should not go beyond

intentional crimes with lethal or other extremely grave consequences

- Safeguards guaranteeing protection of the rights of those facing the death penalty147

Laws incurring the death penalty or capital crimes have certain uniformity the world over This

is of course barring states that are religiously affiliated and whose law systems are not secular

in nature The list of capital crimes for those states with non-secular legal systems is slightly

different The Human Rights Commission had decided that the imposition in the State party of

the death penalty for offences which cannot be characterized as the most serious including

apostasy committing a third homosexual act illicit sex embezzlement by officials and theft by

force are incompatible with Article 6 of the Covenant Economic offences including

embezzlement drug related offences political offences and robbery were also referred to148

The reason why looking into capital crimes and trying to garner a global impression of them is

important is that the death penalty can only realistically be abolished in a piecemeal way This

process will entail shortening the list of capital crimes The UN formally notes that ―in order

fully to guarantee the right to life provided for in article 3 of the Universal Declaration of

Human Rights the main objective to be pursued is that of progressively restricting the number of

offences for which capital punishment may be imposed with a view to the desirability of

abolishing this punishment in all countries149

The first established death penalty laws date as far back as the Eighteenth Century BC in the

Code of King Hammaurabi of Babylon which codified the death penalty for 25 different crimes

By the 1700s 222 crimes were punishable by death in Britain including stealing cutting down a

tree and robbing a rabbit warren In the 19th

century the death penalty was eliminated for over

100 of the 222 crimes punishable by death 150

In modern times the UN Special Rapporteur on

extrajudicial summary or arbitrary executions has stated that the death penalty should be

eliminated for economic crimes and drug-related offences and that the restrictions to its use

―exclude the possibility of death sentences for so-called victimless offences ndash including acts of

treason espionage and other vaguely defined acts usually described as crimes against the Statelsquo

or disloyaltylsquo and ―actions primarily related to prevailing moral values such as adultery and

prostitution as well as matters of sexual orientation151

147

httpwww2ohchrorgenglishlawpdfprotectionpdf 148

httpwwwunhchrchtbsdocnsf0bc310a747155dff88025655300537faeOpendocument 149

General Assembly resolution 2857 httpwwwunodcorgpdfcompendiumcompendium_2006_part_01_05pdf 150

httpdeathpenaltycurriculumorgstudentcabouthistoryhistoryPDF 151

httpswwwabofimedia24259report10pdf

UNHRC 38 of 44

Contrary to the made recommendations even political dissent warrants a death sentence in

several countries most notably in China and Iran In 2010 nearly 20 Kurdish people were

executed for political offences in Iran The country is known for keeping dissent especially from

the Kurds suppressed Most are executed on the grounds of moharebeh or enmity against God

Moreover challenging the power of the Ayatollah is also punishable by death These charges are

neither explicit nor in line with international guidelines over what crimes are punishable

capitally In Iran judges must handle such cases carefully as Iranian law provides for only one

punishment if an individual is found to be guilty of treason Libya too thwarts political dissent

with firm laws in place for punishing by death those who illegally form groups organizations or

associations against the state152

Saudi Arabia too is worth note for its vaguely phrased laws governing capital punishment

Intentional murder and crimes that spread ―mischief in the land (Fasad fil-ardh) merit death In

2010 the government announced that it had executed 26 people all by beheading Crimes that

―spread mischief include witchcraft and sorcery153

How is one convicted of witchcraft in the

21st century What can the international community do when regarding countries such as these

Treason arguably along with murder is the capital crime that has yet to be phased out by many

countries In some such as Brazil treason during warfare is the only crime for which a person

can be sentenced to death In the Gaza Strip under Hamas any sort of cooperation with Israeli

forces during military actions is also punishable by death In others including Algeria Bahrain

Iran and Malaysia treason is punishable by death in all circumstances The United States too has

federal laws governing treason under which traitors ―shall suffer death154

Child sex abuse is another crime that is widely held to merit the death penalty In Russia for

example according to the Russian Public Opinion Research Center an overwhelming majority

consider the death penalty to be an acceptable punishment especially in relation to molestation

155 In 2009 however Russias Constitutional Court effectively abolished the death penalty by

extending indefinitely a 13-year-old moratorium on capital punishment156

Indonesia has some of the strictest penalties for drug related crimes in the world Roughly half of

those on death row are incriminated with drug-related charges157

In 2008 though the most high

profile executions were of terrorists Three of those found responsible for the 2002 Bali

bombings were executed by shooting158

Generally speaking however a significant proportion of

152

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 153

httpwwwstategovgdrlrlshrrpt2010nea154472htm 154

httpdeathpenaltyproconorgviewresourcephpresourceID=1172 155

httpenrianrutrenddeath_penalty 156

httpwwwreuterscomarticle20091119idUSLJ330478 157

httpwwwnytimescom20080711worldasia11iht-indo114421132html 158

httpnewsbbccouk2hiasia-pacific7718246stm

UNHRC 39 of 44

the executions or death sentences recorded (in 2010) in China Egypt Indonesia Iran Laos

Libya Thailand United Arab Emirates and Yemen were for drug-related offences In December

2010 the amended Anti-Narcotics law came into force in Iran extending the scope of the death

penalty to include additional categories of illegal drugs (for example crystal meth) possession

of which became punishable by death Also around the same time the National Assembly of

Gambia voted to extend the scope of the death penalty by making the possession of more than

250g of heroin or cocaine an offence punishable by death159

Several states allow for the death penalty for crimes of blasphemy and other crimes for

nonviolent expression and association In Pakistan Aasia Bibi a Christian mother of five was

charged with blasphemy and sentenced to death after a trial largely believed to be unfair on 8

November 2010 She is currently on death row The country is also noted for its laws concerning

capital crimes The list includes 27 crimes most of which go beyond the notion of ―most serious

crimes as recommended by the International Covenant on Civil and Political Rights Extra-

marital sex and blasphemy are examples of some capital crimes in the country In December

2007 Pakistan voted against a United Nation General Assembly resolution for a moratorium on

the death penalty The year before however the nation amended its law on rape and adultery

charges which are no longer punishable by death160

As far back as 1989 recommendations have been made as to how to abolish the death penalty

Member states (of the UN) have been urged ―to publish for each category of offence for which

the death penalty is authorized and if possible on an annual basis information about the use of

the death penalty including the number of persons sentenced to death the number of executions

actually carried out the number of persons under sentence of death the number of death

sentences reversed or commuted on appeal and the number of instances in which clemency has

been granted and to include information on the extent to which the safeguards referred to above

are incorporated in national law161

The committee must inspect how far this recommendation

has been adopted and should seek to rectify the weaknesses in the system of gradually

abolishing the death penalty Can a target year be designated by which crimes meriting the death

penalty could be made universal How can countries with non-secular legal systems be brought

into the fold of international law

159

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 160

httpwwwfiacatorgenIMGpdfdppakistan-enpdf 161

httpgraduateinstitutechfacultyclaphamhrdocdocsecosocresolutiondeathpen1989html

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 38: UNHRCFINAL

UNHRC 34 of 44

Imposition of Death Penalty on Juveniles

The prohibition on the death penalty for crimes committed by juvenile offendersmdashpersons under

age 18 at the time of the offensemdashis well established in international law specifically in the

Convention on the Rights of Child

ldquoNo child shall be subjected to torture or other cruel inhuman or degrading treatment or

punishment Neither capital punishment nor life imprisonment without possibility of release shall

be imposed for offences committed by persons below eighteen years of agerdquo134

- Article 37(a) Convention on the Rights of Child

ldquoSentence of death shall not be imposed for crimes committed by persons below eighteen years

of age and shall not be carried out on pregnant womenrdquo135

- Article 6(5) International Covenant on Civil and Political Rights

The treaties are a unanimously agreed set of non-negotiable standards and obligations By

acceding to the treaties and ratifying them governments commit to protecting and ensuring

childrens rights and to holding themselves accountable for this commitment before the

international community

Even though the practice of capital punishment on juveniles is relatively rare however in clear

contravention of international law nine countries have executed offenders who were juveniles at

the time of their crimes between 1990 and 2005136

These countries include the Peoples Republic

of China (PRC) the Democratic Republic of the Congo Iran Nigeria Pakistan Saudi Arabia

Sudan the United States and Yemen137

The USA has since moved to implement a ban on capital

punishment for juveniles However in most other countries of the preceding list the practice is

still enshrined in the judicial system Iranlsquos record in particular has been abominable over the last

decade It has carried out 39 executions of persons under the age of 18 since 2005 Presently

over a hundred individuals are placed on death row for crimes committed as juveniles The

executions of Mahmoud Asgari Ayaz Marhoni and Makwan Moloudzadeh became international

symbols of Irans child capital punishment and the judicial system that hands down such

134

httpwww2ohchrorgenglishlawcrchtm 135

httpwww2ohchrorgenglishlawccprhtm 136

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf - This document by the Human Rights Watch

called The Last Holdoutslsquo is a good summary of juvenile executions and should be reviewed 137

httpwwwamnestyorgendeath-penaltyexecutions-of-child-offenders-since-1990 - Contains a list with

statistics and details of countries which have allowed the imposition of death sentence to juveniles

UNHRC 35 of 44

sentences138139140

Saudi Arabia and China too have questionable records that need to be

scrutinized further

While regional treaties and charters usually substantiate international law the Arab Human

Rights Charter of 2004 is unique among regional and international treaties in that the ban on the

juvenile death penalty in it is not absolute but merely optional141

Furthermore national laws in states that observe such a practice are in violation of

international legally-binding charters In Iran and Saudi Arabia laws usually treat a child the

same way as an adult criminal offender would be treated Article 10(3) of the International

Covenant on Civil and Political Rights emphasizes the need for demarcation between the

handling of children and that of adults in stating ―Juvenile offenders shall be segregated from

adults and be accorded treatment appropriate to their age and legal status142

The definition of a child in these Muslim states is unclear as adulthood is associated with

attainment of puberty which is a relative concept The Committee on the Rights of the Child in

January 2005 censured the Saudi government for its practice of imposing the death penalty on

juveniles terming it a serious violation of the fundamental rights The committee was deeply

alarmed over the discretionary power judges hold to treat juveniles as adults as was stated in

the committeelsquos report Iran too was strongly condemned following the release of an

international report highlighting the dire situation in Iran by the International for Human Rights 143

138

httpwwwfoxnewscomstory0293329798200html 139

httpnewsbbccouk2himiddle_east7130380stm 140

httpenwikipediaorgwikiCapital_punishmentIran 141

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 142

httpwww2ohchrorgenglishlawccprhtm 143

httpwwwfidhorgIMGpdfRapport_Iran_finalpdf

UNHRC 36 of 44

On August 19 2008 Iranian authorities executed Seyyed Reza Hejazi at Isfahan Central Prison

for his role in a murder committed in 2003 when he was 15 Hejazi was tried as an adult by

Branch 106 of the Isfahan General Court even if he did not qualify as one under international

stipulations and sentenced to death on November 14 2005144

In Saudi Arabia Mu`id bin

Husayn bin Abu al-Qasim bin `Ali Hakami was executed on July 10 2007 for a murder he

allegedly committed three years earlier when he was 13 years old145

The judges in these states

because of the implementation of the Sharialsquo law have a large amount of discretion with regard

to their rulings This discretion is often abused in the interrogation and judicial proceedings In

Pakistan authorities hanged Mutaber Khan in Peshawar Central Prison on June 13 2006 on

charges of murder of five people The fact that he was held in the juvenile wing of Peshawar

Central prison and the evidence presented by the accused confirming that his age was below 18

at the time of the killings were not taken into account during the trials and Mutaber was charged

as an adult in the case146

While the above does not cover exhaustively the practice of capitally punishing juveniles the

committee is expected to be well read on the matter The committee will be required to devise

ways to strictly apply the existing international law on the subject to curtail further deaths of

juveniles by states A series of recommendations on better implementation of international

covenants will be expected from the committee Delegates at UNHRC will also have to

familiarize themselves with the stipulations in the national laws of countries practicing juvenile

death penalties (Iran Saudi Arabia Pakistan Nigeria Sudan Yemen and UAE among others) to

discuss how these states are constitutionally able to bend international law and mete out the

illegal punishments

144

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 145

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 146

See FIDH and Human Rights Commission of Pakistan ―Slow march to the gallows and ―Condemned Prisoner

Executed Dawn Newspaper Karachi June 14 2005 httpwwwdawncom20060614nat16htm

UNHRC 37 of 44

Universality of Laws Incurring the Death Penalty

In countries which have not abolished the death penalty capital punishment may be imposed

only for the most serious crimes it being understood that their scope should not go beyond

intentional crimes with lethal or other extremely grave consequences

- Safeguards guaranteeing protection of the rights of those facing the death penalty147

Laws incurring the death penalty or capital crimes have certain uniformity the world over This

is of course barring states that are religiously affiliated and whose law systems are not secular

in nature The list of capital crimes for those states with non-secular legal systems is slightly

different The Human Rights Commission had decided that the imposition in the State party of

the death penalty for offences which cannot be characterized as the most serious including

apostasy committing a third homosexual act illicit sex embezzlement by officials and theft by

force are incompatible with Article 6 of the Covenant Economic offences including

embezzlement drug related offences political offences and robbery were also referred to148

The reason why looking into capital crimes and trying to garner a global impression of them is

important is that the death penalty can only realistically be abolished in a piecemeal way This

process will entail shortening the list of capital crimes The UN formally notes that ―in order

fully to guarantee the right to life provided for in article 3 of the Universal Declaration of

Human Rights the main objective to be pursued is that of progressively restricting the number of

offences for which capital punishment may be imposed with a view to the desirability of

abolishing this punishment in all countries149

The first established death penalty laws date as far back as the Eighteenth Century BC in the

Code of King Hammaurabi of Babylon which codified the death penalty for 25 different crimes

By the 1700s 222 crimes were punishable by death in Britain including stealing cutting down a

tree and robbing a rabbit warren In the 19th

century the death penalty was eliminated for over

100 of the 222 crimes punishable by death 150

In modern times the UN Special Rapporteur on

extrajudicial summary or arbitrary executions has stated that the death penalty should be

eliminated for economic crimes and drug-related offences and that the restrictions to its use

―exclude the possibility of death sentences for so-called victimless offences ndash including acts of

treason espionage and other vaguely defined acts usually described as crimes against the Statelsquo

or disloyaltylsquo and ―actions primarily related to prevailing moral values such as adultery and

prostitution as well as matters of sexual orientation151

147

httpwww2ohchrorgenglishlawpdfprotectionpdf 148

httpwwwunhchrchtbsdocnsf0bc310a747155dff88025655300537faeOpendocument 149

General Assembly resolution 2857 httpwwwunodcorgpdfcompendiumcompendium_2006_part_01_05pdf 150

httpdeathpenaltycurriculumorgstudentcabouthistoryhistoryPDF 151

httpswwwabofimedia24259report10pdf

UNHRC 38 of 44

Contrary to the made recommendations even political dissent warrants a death sentence in

several countries most notably in China and Iran In 2010 nearly 20 Kurdish people were

executed for political offences in Iran The country is known for keeping dissent especially from

the Kurds suppressed Most are executed on the grounds of moharebeh or enmity against God

Moreover challenging the power of the Ayatollah is also punishable by death These charges are

neither explicit nor in line with international guidelines over what crimes are punishable

capitally In Iran judges must handle such cases carefully as Iranian law provides for only one

punishment if an individual is found to be guilty of treason Libya too thwarts political dissent

with firm laws in place for punishing by death those who illegally form groups organizations or

associations against the state152

Saudi Arabia too is worth note for its vaguely phrased laws governing capital punishment

Intentional murder and crimes that spread ―mischief in the land (Fasad fil-ardh) merit death In

2010 the government announced that it had executed 26 people all by beheading Crimes that

―spread mischief include witchcraft and sorcery153

How is one convicted of witchcraft in the

21st century What can the international community do when regarding countries such as these

Treason arguably along with murder is the capital crime that has yet to be phased out by many

countries In some such as Brazil treason during warfare is the only crime for which a person

can be sentenced to death In the Gaza Strip under Hamas any sort of cooperation with Israeli

forces during military actions is also punishable by death In others including Algeria Bahrain

Iran and Malaysia treason is punishable by death in all circumstances The United States too has

federal laws governing treason under which traitors ―shall suffer death154

Child sex abuse is another crime that is widely held to merit the death penalty In Russia for

example according to the Russian Public Opinion Research Center an overwhelming majority

consider the death penalty to be an acceptable punishment especially in relation to molestation

155 In 2009 however Russias Constitutional Court effectively abolished the death penalty by

extending indefinitely a 13-year-old moratorium on capital punishment156

Indonesia has some of the strictest penalties for drug related crimes in the world Roughly half of

those on death row are incriminated with drug-related charges157

In 2008 though the most high

profile executions were of terrorists Three of those found responsible for the 2002 Bali

bombings were executed by shooting158

Generally speaking however a significant proportion of

152

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 153

httpwwwstategovgdrlrlshrrpt2010nea154472htm 154

httpdeathpenaltyproconorgviewresourcephpresourceID=1172 155

httpenrianrutrenddeath_penalty 156

httpwwwreuterscomarticle20091119idUSLJ330478 157

httpwwwnytimescom20080711worldasia11iht-indo114421132html 158

httpnewsbbccouk2hiasia-pacific7718246stm

UNHRC 39 of 44

the executions or death sentences recorded (in 2010) in China Egypt Indonesia Iran Laos

Libya Thailand United Arab Emirates and Yemen were for drug-related offences In December

2010 the amended Anti-Narcotics law came into force in Iran extending the scope of the death

penalty to include additional categories of illegal drugs (for example crystal meth) possession

of which became punishable by death Also around the same time the National Assembly of

Gambia voted to extend the scope of the death penalty by making the possession of more than

250g of heroin or cocaine an offence punishable by death159

Several states allow for the death penalty for crimes of blasphemy and other crimes for

nonviolent expression and association In Pakistan Aasia Bibi a Christian mother of five was

charged with blasphemy and sentenced to death after a trial largely believed to be unfair on 8

November 2010 She is currently on death row The country is also noted for its laws concerning

capital crimes The list includes 27 crimes most of which go beyond the notion of ―most serious

crimes as recommended by the International Covenant on Civil and Political Rights Extra-

marital sex and blasphemy are examples of some capital crimes in the country In December

2007 Pakistan voted against a United Nation General Assembly resolution for a moratorium on

the death penalty The year before however the nation amended its law on rape and adultery

charges which are no longer punishable by death160

As far back as 1989 recommendations have been made as to how to abolish the death penalty

Member states (of the UN) have been urged ―to publish for each category of offence for which

the death penalty is authorized and if possible on an annual basis information about the use of

the death penalty including the number of persons sentenced to death the number of executions

actually carried out the number of persons under sentence of death the number of death

sentences reversed or commuted on appeal and the number of instances in which clemency has

been granted and to include information on the extent to which the safeguards referred to above

are incorporated in national law161

The committee must inspect how far this recommendation

has been adopted and should seek to rectify the weaknesses in the system of gradually

abolishing the death penalty Can a target year be designated by which crimes meriting the death

penalty could be made universal How can countries with non-secular legal systems be brought

into the fold of international law

159

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 160

httpwwwfiacatorgenIMGpdfdppakistan-enpdf 161

httpgraduateinstitutechfacultyclaphamhrdocdocsecosocresolutiondeathpen1989html

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 39: UNHRCFINAL

UNHRC 35 of 44

sentences138139140

Saudi Arabia and China too have questionable records that need to be

scrutinized further

While regional treaties and charters usually substantiate international law the Arab Human

Rights Charter of 2004 is unique among regional and international treaties in that the ban on the

juvenile death penalty in it is not absolute but merely optional141

Furthermore national laws in states that observe such a practice are in violation of

international legally-binding charters In Iran and Saudi Arabia laws usually treat a child the

same way as an adult criminal offender would be treated Article 10(3) of the International

Covenant on Civil and Political Rights emphasizes the need for demarcation between the

handling of children and that of adults in stating ―Juvenile offenders shall be segregated from

adults and be accorded treatment appropriate to their age and legal status142

The definition of a child in these Muslim states is unclear as adulthood is associated with

attainment of puberty which is a relative concept The Committee on the Rights of the Child in

January 2005 censured the Saudi government for its practice of imposing the death penalty on

juveniles terming it a serious violation of the fundamental rights The committee was deeply

alarmed over the discretionary power judges hold to treat juveniles as adults as was stated in

the committeelsquos report Iran too was strongly condemned following the release of an

international report highlighting the dire situation in Iran by the International for Human Rights 143

138

httpwwwfoxnewscomstory0293329798200html 139

httpnewsbbccouk2himiddle_east7130380stm 140

httpenwikipediaorgwikiCapital_punishmentIran 141

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 142

httpwww2ohchrorgenglishlawccprhtm 143

httpwwwfidhorgIMGpdfRapport_Iran_finalpdf

UNHRC 36 of 44

On August 19 2008 Iranian authorities executed Seyyed Reza Hejazi at Isfahan Central Prison

for his role in a murder committed in 2003 when he was 15 Hejazi was tried as an adult by

Branch 106 of the Isfahan General Court even if he did not qualify as one under international

stipulations and sentenced to death on November 14 2005144

In Saudi Arabia Mu`id bin

Husayn bin Abu al-Qasim bin `Ali Hakami was executed on July 10 2007 for a murder he

allegedly committed three years earlier when he was 13 years old145

The judges in these states

because of the implementation of the Sharialsquo law have a large amount of discretion with regard

to their rulings This discretion is often abused in the interrogation and judicial proceedings In

Pakistan authorities hanged Mutaber Khan in Peshawar Central Prison on June 13 2006 on

charges of murder of five people The fact that he was held in the juvenile wing of Peshawar

Central prison and the evidence presented by the accused confirming that his age was below 18

at the time of the killings were not taken into account during the trials and Mutaber was charged

as an adult in the case146

While the above does not cover exhaustively the practice of capitally punishing juveniles the

committee is expected to be well read on the matter The committee will be required to devise

ways to strictly apply the existing international law on the subject to curtail further deaths of

juveniles by states A series of recommendations on better implementation of international

covenants will be expected from the committee Delegates at UNHRC will also have to

familiarize themselves with the stipulations in the national laws of countries practicing juvenile

death penalties (Iran Saudi Arabia Pakistan Nigeria Sudan Yemen and UAE among others) to

discuss how these states are constitutionally able to bend international law and mete out the

illegal punishments

144

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 145

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 146

See FIDH and Human Rights Commission of Pakistan ―Slow march to the gallows and ―Condemned Prisoner

Executed Dawn Newspaper Karachi June 14 2005 httpwwwdawncom20060614nat16htm

UNHRC 37 of 44

Universality of Laws Incurring the Death Penalty

In countries which have not abolished the death penalty capital punishment may be imposed

only for the most serious crimes it being understood that their scope should not go beyond

intentional crimes with lethal or other extremely grave consequences

- Safeguards guaranteeing protection of the rights of those facing the death penalty147

Laws incurring the death penalty or capital crimes have certain uniformity the world over This

is of course barring states that are religiously affiliated and whose law systems are not secular

in nature The list of capital crimes for those states with non-secular legal systems is slightly

different The Human Rights Commission had decided that the imposition in the State party of

the death penalty for offences which cannot be characterized as the most serious including

apostasy committing a third homosexual act illicit sex embezzlement by officials and theft by

force are incompatible with Article 6 of the Covenant Economic offences including

embezzlement drug related offences political offences and robbery were also referred to148

The reason why looking into capital crimes and trying to garner a global impression of them is

important is that the death penalty can only realistically be abolished in a piecemeal way This

process will entail shortening the list of capital crimes The UN formally notes that ―in order

fully to guarantee the right to life provided for in article 3 of the Universal Declaration of

Human Rights the main objective to be pursued is that of progressively restricting the number of

offences for which capital punishment may be imposed with a view to the desirability of

abolishing this punishment in all countries149

The first established death penalty laws date as far back as the Eighteenth Century BC in the

Code of King Hammaurabi of Babylon which codified the death penalty for 25 different crimes

By the 1700s 222 crimes were punishable by death in Britain including stealing cutting down a

tree and robbing a rabbit warren In the 19th

century the death penalty was eliminated for over

100 of the 222 crimes punishable by death 150

In modern times the UN Special Rapporteur on

extrajudicial summary or arbitrary executions has stated that the death penalty should be

eliminated for economic crimes and drug-related offences and that the restrictions to its use

―exclude the possibility of death sentences for so-called victimless offences ndash including acts of

treason espionage and other vaguely defined acts usually described as crimes against the Statelsquo

or disloyaltylsquo and ―actions primarily related to prevailing moral values such as adultery and

prostitution as well as matters of sexual orientation151

147

httpwww2ohchrorgenglishlawpdfprotectionpdf 148

httpwwwunhchrchtbsdocnsf0bc310a747155dff88025655300537faeOpendocument 149

General Assembly resolution 2857 httpwwwunodcorgpdfcompendiumcompendium_2006_part_01_05pdf 150

httpdeathpenaltycurriculumorgstudentcabouthistoryhistoryPDF 151

httpswwwabofimedia24259report10pdf

UNHRC 38 of 44

Contrary to the made recommendations even political dissent warrants a death sentence in

several countries most notably in China and Iran In 2010 nearly 20 Kurdish people were

executed for political offences in Iran The country is known for keeping dissent especially from

the Kurds suppressed Most are executed on the grounds of moharebeh or enmity against God

Moreover challenging the power of the Ayatollah is also punishable by death These charges are

neither explicit nor in line with international guidelines over what crimes are punishable

capitally In Iran judges must handle such cases carefully as Iranian law provides for only one

punishment if an individual is found to be guilty of treason Libya too thwarts political dissent

with firm laws in place for punishing by death those who illegally form groups organizations or

associations against the state152

Saudi Arabia too is worth note for its vaguely phrased laws governing capital punishment

Intentional murder and crimes that spread ―mischief in the land (Fasad fil-ardh) merit death In

2010 the government announced that it had executed 26 people all by beheading Crimes that

―spread mischief include witchcraft and sorcery153

How is one convicted of witchcraft in the

21st century What can the international community do when regarding countries such as these

Treason arguably along with murder is the capital crime that has yet to be phased out by many

countries In some such as Brazil treason during warfare is the only crime for which a person

can be sentenced to death In the Gaza Strip under Hamas any sort of cooperation with Israeli

forces during military actions is also punishable by death In others including Algeria Bahrain

Iran and Malaysia treason is punishable by death in all circumstances The United States too has

federal laws governing treason under which traitors ―shall suffer death154

Child sex abuse is another crime that is widely held to merit the death penalty In Russia for

example according to the Russian Public Opinion Research Center an overwhelming majority

consider the death penalty to be an acceptable punishment especially in relation to molestation

155 In 2009 however Russias Constitutional Court effectively abolished the death penalty by

extending indefinitely a 13-year-old moratorium on capital punishment156

Indonesia has some of the strictest penalties for drug related crimes in the world Roughly half of

those on death row are incriminated with drug-related charges157

In 2008 though the most high

profile executions were of terrorists Three of those found responsible for the 2002 Bali

bombings were executed by shooting158

Generally speaking however a significant proportion of

152

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 153

httpwwwstategovgdrlrlshrrpt2010nea154472htm 154

httpdeathpenaltyproconorgviewresourcephpresourceID=1172 155

httpenrianrutrenddeath_penalty 156

httpwwwreuterscomarticle20091119idUSLJ330478 157

httpwwwnytimescom20080711worldasia11iht-indo114421132html 158

httpnewsbbccouk2hiasia-pacific7718246stm

UNHRC 39 of 44

the executions or death sentences recorded (in 2010) in China Egypt Indonesia Iran Laos

Libya Thailand United Arab Emirates and Yemen were for drug-related offences In December

2010 the amended Anti-Narcotics law came into force in Iran extending the scope of the death

penalty to include additional categories of illegal drugs (for example crystal meth) possession

of which became punishable by death Also around the same time the National Assembly of

Gambia voted to extend the scope of the death penalty by making the possession of more than

250g of heroin or cocaine an offence punishable by death159

Several states allow for the death penalty for crimes of blasphemy and other crimes for

nonviolent expression and association In Pakistan Aasia Bibi a Christian mother of five was

charged with blasphemy and sentenced to death after a trial largely believed to be unfair on 8

November 2010 She is currently on death row The country is also noted for its laws concerning

capital crimes The list includes 27 crimes most of which go beyond the notion of ―most serious

crimes as recommended by the International Covenant on Civil and Political Rights Extra-

marital sex and blasphemy are examples of some capital crimes in the country In December

2007 Pakistan voted against a United Nation General Assembly resolution for a moratorium on

the death penalty The year before however the nation amended its law on rape and adultery

charges which are no longer punishable by death160

As far back as 1989 recommendations have been made as to how to abolish the death penalty

Member states (of the UN) have been urged ―to publish for each category of offence for which

the death penalty is authorized and if possible on an annual basis information about the use of

the death penalty including the number of persons sentenced to death the number of executions

actually carried out the number of persons under sentence of death the number of death

sentences reversed or commuted on appeal and the number of instances in which clemency has

been granted and to include information on the extent to which the safeguards referred to above

are incorporated in national law161

The committee must inspect how far this recommendation

has been adopted and should seek to rectify the weaknesses in the system of gradually

abolishing the death penalty Can a target year be designated by which crimes meriting the death

penalty could be made universal How can countries with non-secular legal systems be brought

into the fold of international law

159

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 160

httpwwwfiacatorgenIMGpdfdppakistan-enpdf 161

httpgraduateinstitutechfacultyclaphamhrdocdocsecosocresolutiondeathpen1989html

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 40: UNHRCFINAL

UNHRC 36 of 44

On August 19 2008 Iranian authorities executed Seyyed Reza Hejazi at Isfahan Central Prison

for his role in a murder committed in 2003 when he was 15 Hejazi was tried as an adult by

Branch 106 of the Isfahan General Court even if he did not qualify as one under international

stipulations and sentenced to death on November 14 2005144

In Saudi Arabia Mu`id bin

Husayn bin Abu al-Qasim bin `Ali Hakami was executed on July 10 2007 for a murder he

allegedly committed three years earlier when he was 13 years old145

The judges in these states

because of the implementation of the Sharialsquo law have a large amount of discretion with regard

to their rulings This discretion is often abused in the interrogation and judicial proceedings In

Pakistan authorities hanged Mutaber Khan in Peshawar Central Prison on June 13 2006 on

charges of murder of five people The fact that he was held in the juvenile wing of Peshawar

Central prison and the evidence presented by the accused confirming that his age was below 18

at the time of the killings were not taken into account during the trials and Mutaber was charged

as an adult in the case146

While the above does not cover exhaustively the practice of capitally punishing juveniles the

committee is expected to be well read on the matter The committee will be required to devise

ways to strictly apply the existing international law on the subject to curtail further deaths of

juveniles by states A series of recommendations on better implementation of international

covenants will be expected from the committee Delegates at UNHRC will also have to

familiarize themselves with the stipulations in the national laws of countries practicing juvenile

death penalties (Iran Saudi Arabia Pakistan Nigeria Sudan Yemen and UAE among others) to

discuss how these states are constitutionally able to bend international law and mete out the

illegal punishments

144

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 145

httpwwwhrworgsitesdefaultfilesreportscrd0908web_0pdf 146

See FIDH and Human Rights Commission of Pakistan ―Slow march to the gallows and ―Condemned Prisoner

Executed Dawn Newspaper Karachi June 14 2005 httpwwwdawncom20060614nat16htm

UNHRC 37 of 44

Universality of Laws Incurring the Death Penalty

In countries which have not abolished the death penalty capital punishment may be imposed

only for the most serious crimes it being understood that their scope should not go beyond

intentional crimes with lethal or other extremely grave consequences

- Safeguards guaranteeing protection of the rights of those facing the death penalty147

Laws incurring the death penalty or capital crimes have certain uniformity the world over This

is of course barring states that are religiously affiliated and whose law systems are not secular

in nature The list of capital crimes for those states with non-secular legal systems is slightly

different The Human Rights Commission had decided that the imposition in the State party of

the death penalty for offences which cannot be characterized as the most serious including

apostasy committing a third homosexual act illicit sex embezzlement by officials and theft by

force are incompatible with Article 6 of the Covenant Economic offences including

embezzlement drug related offences political offences and robbery were also referred to148

The reason why looking into capital crimes and trying to garner a global impression of them is

important is that the death penalty can only realistically be abolished in a piecemeal way This

process will entail shortening the list of capital crimes The UN formally notes that ―in order

fully to guarantee the right to life provided for in article 3 of the Universal Declaration of

Human Rights the main objective to be pursued is that of progressively restricting the number of

offences for which capital punishment may be imposed with a view to the desirability of

abolishing this punishment in all countries149

The first established death penalty laws date as far back as the Eighteenth Century BC in the

Code of King Hammaurabi of Babylon which codified the death penalty for 25 different crimes

By the 1700s 222 crimes were punishable by death in Britain including stealing cutting down a

tree and robbing a rabbit warren In the 19th

century the death penalty was eliminated for over

100 of the 222 crimes punishable by death 150

In modern times the UN Special Rapporteur on

extrajudicial summary or arbitrary executions has stated that the death penalty should be

eliminated for economic crimes and drug-related offences and that the restrictions to its use

―exclude the possibility of death sentences for so-called victimless offences ndash including acts of

treason espionage and other vaguely defined acts usually described as crimes against the Statelsquo

or disloyaltylsquo and ―actions primarily related to prevailing moral values such as adultery and

prostitution as well as matters of sexual orientation151

147

httpwww2ohchrorgenglishlawpdfprotectionpdf 148

httpwwwunhchrchtbsdocnsf0bc310a747155dff88025655300537faeOpendocument 149

General Assembly resolution 2857 httpwwwunodcorgpdfcompendiumcompendium_2006_part_01_05pdf 150

httpdeathpenaltycurriculumorgstudentcabouthistoryhistoryPDF 151

httpswwwabofimedia24259report10pdf

UNHRC 38 of 44

Contrary to the made recommendations even political dissent warrants a death sentence in

several countries most notably in China and Iran In 2010 nearly 20 Kurdish people were

executed for political offences in Iran The country is known for keeping dissent especially from

the Kurds suppressed Most are executed on the grounds of moharebeh or enmity against God

Moreover challenging the power of the Ayatollah is also punishable by death These charges are

neither explicit nor in line with international guidelines over what crimes are punishable

capitally In Iran judges must handle such cases carefully as Iranian law provides for only one

punishment if an individual is found to be guilty of treason Libya too thwarts political dissent

with firm laws in place for punishing by death those who illegally form groups organizations or

associations against the state152

Saudi Arabia too is worth note for its vaguely phrased laws governing capital punishment

Intentional murder and crimes that spread ―mischief in the land (Fasad fil-ardh) merit death In

2010 the government announced that it had executed 26 people all by beheading Crimes that

―spread mischief include witchcraft and sorcery153

How is one convicted of witchcraft in the

21st century What can the international community do when regarding countries such as these

Treason arguably along with murder is the capital crime that has yet to be phased out by many

countries In some such as Brazil treason during warfare is the only crime for which a person

can be sentenced to death In the Gaza Strip under Hamas any sort of cooperation with Israeli

forces during military actions is also punishable by death In others including Algeria Bahrain

Iran and Malaysia treason is punishable by death in all circumstances The United States too has

federal laws governing treason under which traitors ―shall suffer death154

Child sex abuse is another crime that is widely held to merit the death penalty In Russia for

example according to the Russian Public Opinion Research Center an overwhelming majority

consider the death penalty to be an acceptable punishment especially in relation to molestation

155 In 2009 however Russias Constitutional Court effectively abolished the death penalty by

extending indefinitely a 13-year-old moratorium on capital punishment156

Indonesia has some of the strictest penalties for drug related crimes in the world Roughly half of

those on death row are incriminated with drug-related charges157

In 2008 though the most high

profile executions were of terrorists Three of those found responsible for the 2002 Bali

bombings were executed by shooting158

Generally speaking however a significant proportion of

152

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 153

httpwwwstategovgdrlrlshrrpt2010nea154472htm 154

httpdeathpenaltyproconorgviewresourcephpresourceID=1172 155

httpenrianrutrenddeath_penalty 156

httpwwwreuterscomarticle20091119idUSLJ330478 157

httpwwwnytimescom20080711worldasia11iht-indo114421132html 158

httpnewsbbccouk2hiasia-pacific7718246stm

UNHRC 39 of 44

the executions or death sentences recorded (in 2010) in China Egypt Indonesia Iran Laos

Libya Thailand United Arab Emirates and Yemen were for drug-related offences In December

2010 the amended Anti-Narcotics law came into force in Iran extending the scope of the death

penalty to include additional categories of illegal drugs (for example crystal meth) possession

of which became punishable by death Also around the same time the National Assembly of

Gambia voted to extend the scope of the death penalty by making the possession of more than

250g of heroin or cocaine an offence punishable by death159

Several states allow for the death penalty for crimes of blasphemy and other crimes for

nonviolent expression and association In Pakistan Aasia Bibi a Christian mother of five was

charged with blasphemy and sentenced to death after a trial largely believed to be unfair on 8

November 2010 She is currently on death row The country is also noted for its laws concerning

capital crimes The list includes 27 crimes most of which go beyond the notion of ―most serious

crimes as recommended by the International Covenant on Civil and Political Rights Extra-

marital sex and blasphemy are examples of some capital crimes in the country In December

2007 Pakistan voted against a United Nation General Assembly resolution for a moratorium on

the death penalty The year before however the nation amended its law on rape and adultery

charges which are no longer punishable by death160

As far back as 1989 recommendations have been made as to how to abolish the death penalty

Member states (of the UN) have been urged ―to publish for each category of offence for which

the death penalty is authorized and if possible on an annual basis information about the use of

the death penalty including the number of persons sentenced to death the number of executions

actually carried out the number of persons under sentence of death the number of death

sentences reversed or commuted on appeal and the number of instances in which clemency has

been granted and to include information on the extent to which the safeguards referred to above

are incorporated in national law161

The committee must inspect how far this recommendation

has been adopted and should seek to rectify the weaknesses in the system of gradually

abolishing the death penalty Can a target year be designated by which crimes meriting the death

penalty could be made universal How can countries with non-secular legal systems be brought

into the fold of international law

159

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 160

httpwwwfiacatorgenIMGpdfdppakistan-enpdf 161

httpgraduateinstitutechfacultyclaphamhrdocdocsecosocresolutiondeathpen1989html

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 41: UNHRCFINAL

UNHRC 37 of 44

Universality of Laws Incurring the Death Penalty

In countries which have not abolished the death penalty capital punishment may be imposed

only for the most serious crimes it being understood that their scope should not go beyond

intentional crimes with lethal or other extremely grave consequences

- Safeguards guaranteeing protection of the rights of those facing the death penalty147

Laws incurring the death penalty or capital crimes have certain uniformity the world over This

is of course barring states that are religiously affiliated and whose law systems are not secular

in nature The list of capital crimes for those states with non-secular legal systems is slightly

different The Human Rights Commission had decided that the imposition in the State party of

the death penalty for offences which cannot be characterized as the most serious including

apostasy committing a third homosexual act illicit sex embezzlement by officials and theft by

force are incompatible with Article 6 of the Covenant Economic offences including

embezzlement drug related offences political offences and robbery were also referred to148

The reason why looking into capital crimes and trying to garner a global impression of them is

important is that the death penalty can only realistically be abolished in a piecemeal way This

process will entail shortening the list of capital crimes The UN formally notes that ―in order

fully to guarantee the right to life provided for in article 3 of the Universal Declaration of

Human Rights the main objective to be pursued is that of progressively restricting the number of

offences for which capital punishment may be imposed with a view to the desirability of

abolishing this punishment in all countries149

The first established death penalty laws date as far back as the Eighteenth Century BC in the

Code of King Hammaurabi of Babylon which codified the death penalty for 25 different crimes

By the 1700s 222 crimes were punishable by death in Britain including stealing cutting down a

tree and robbing a rabbit warren In the 19th

century the death penalty was eliminated for over

100 of the 222 crimes punishable by death 150

In modern times the UN Special Rapporteur on

extrajudicial summary or arbitrary executions has stated that the death penalty should be

eliminated for economic crimes and drug-related offences and that the restrictions to its use

―exclude the possibility of death sentences for so-called victimless offences ndash including acts of

treason espionage and other vaguely defined acts usually described as crimes against the Statelsquo

or disloyaltylsquo and ―actions primarily related to prevailing moral values such as adultery and

prostitution as well as matters of sexual orientation151

147

httpwww2ohchrorgenglishlawpdfprotectionpdf 148

httpwwwunhchrchtbsdocnsf0bc310a747155dff88025655300537faeOpendocument 149

General Assembly resolution 2857 httpwwwunodcorgpdfcompendiumcompendium_2006_part_01_05pdf 150

httpdeathpenaltycurriculumorgstudentcabouthistoryhistoryPDF 151

httpswwwabofimedia24259report10pdf

UNHRC 38 of 44

Contrary to the made recommendations even political dissent warrants a death sentence in

several countries most notably in China and Iran In 2010 nearly 20 Kurdish people were

executed for political offences in Iran The country is known for keeping dissent especially from

the Kurds suppressed Most are executed on the grounds of moharebeh or enmity against God

Moreover challenging the power of the Ayatollah is also punishable by death These charges are

neither explicit nor in line with international guidelines over what crimes are punishable

capitally In Iran judges must handle such cases carefully as Iranian law provides for only one

punishment if an individual is found to be guilty of treason Libya too thwarts political dissent

with firm laws in place for punishing by death those who illegally form groups organizations or

associations against the state152

Saudi Arabia too is worth note for its vaguely phrased laws governing capital punishment

Intentional murder and crimes that spread ―mischief in the land (Fasad fil-ardh) merit death In

2010 the government announced that it had executed 26 people all by beheading Crimes that

―spread mischief include witchcraft and sorcery153

How is one convicted of witchcraft in the

21st century What can the international community do when regarding countries such as these

Treason arguably along with murder is the capital crime that has yet to be phased out by many

countries In some such as Brazil treason during warfare is the only crime for which a person

can be sentenced to death In the Gaza Strip under Hamas any sort of cooperation with Israeli

forces during military actions is also punishable by death In others including Algeria Bahrain

Iran and Malaysia treason is punishable by death in all circumstances The United States too has

federal laws governing treason under which traitors ―shall suffer death154

Child sex abuse is another crime that is widely held to merit the death penalty In Russia for

example according to the Russian Public Opinion Research Center an overwhelming majority

consider the death penalty to be an acceptable punishment especially in relation to molestation

155 In 2009 however Russias Constitutional Court effectively abolished the death penalty by

extending indefinitely a 13-year-old moratorium on capital punishment156

Indonesia has some of the strictest penalties for drug related crimes in the world Roughly half of

those on death row are incriminated with drug-related charges157

In 2008 though the most high

profile executions were of terrorists Three of those found responsible for the 2002 Bali

bombings were executed by shooting158

Generally speaking however a significant proportion of

152

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 153

httpwwwstategovgdrlrlshrrpt2010nea154472htm 154

httpdeathpenaltyproconorgviewresourcephpresourceID=1172 155

httpenrianrutrenddeath_penalty 156

httpwwwreuterscomarticle20091119idUSLJ330478 157

httpwwwnytimescom20080711worldasia11iht-indo114421132html 158

httpnewsbbccouk2hiasia-pacific7718246stm

UNHRC 39 of 44

the executions or death sentences recorded (in 2010) in China Egypt Indonesia Iran Laos

Libya Thailand United Arab Emirates and Yemen were for drug-related offences In December

2010 the amended Anti-Narcotics law came into force in Iran extending the scope of the death

penalty to include additional categories of illegal drugs (for example crystal meth) possession

of which became punishable by death Also around the same time the National Assembly of

Gambia voted to extend the scope of the death penalty by making the possession of more than

250g of heroin or cocaine an offence punishable by death159

Several states allow for the death penalty for crimes of blasphemy and other crimes for

nonviolent expression and association In Pakistan Aasia Bibi a Christian mother of five was

charged with blasphemy and sentenced to death after a trial largely believed to be unfair on 8

November 2010 She is currently on death row The country is also noted for its laws concerning

capital crimes The list includes 27 crimes most of which go beyond the notion of ―most serious

crimes as recommended by the International Covenant on Civil and Political Rights Extra-

marital sex and blasphemy are examples of some capital crimes in the country In December

2007 Pakistan voted against a United Nation General Assembly resolution for a moratorium on

the death penalty The year before however the nation amended its law on rape and adultery

charges which are no longer punishable by death160

As far back as 1989 recommendations have been made as to how to abolish the death penalty

Member states (of the UN) have been urged ―to publish for each category of offence for which

the death penalty is authorized and if possible on an annual basis information about the use of

the death penalty including the number of persons sentenced to death the number of executions

actually carried out the number of persons under sentence of death the number of death

sentences reversed or commuted on appeal and the number of instances in which clemency has

been granted and to include information on the extent to which the safeguards referred to above

are incorporated in national law161

The committee must inspect how far this recommendation

has been adopted and should seek to rectify the weaknesses in the system of gradually

abolishing the death penalty Can a target year be designated by which crimes meriting the death

penalty could be made universal How can countries with non-secular legal systems be brought

into the fold of international law

159

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 160

httpwwwfiacatorgenIMGpdfdppakistan-enpdf 161

httpgraduateinstitutechfacultyclaphamhrdocdocsecosocresolutiondeathpen1989html

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 42: UNHRCFINAL

UNHRC 38 of 44

Contrary to the made recommendations even political dissent warrants a death sentence in

several countries most notably in China and Iran In 2010 nearly 20 Kurdish people were

executed for political offences in Iran The country is known for keeping dissent especially from

the Kurds suppressed Most are executed on the grounds of moharebeh or enmity against God

Moreover challenging the power of the Ayatollah is also punishable by death These charges are

neither explicit nor in line with international guidelines over what crimes are punishable

capitally In Iran judges must handle such cases carefully as Iranian law provides for only one

punishment if an individual is found to be guilty of treason Libya too thwarts political dissent

with firm laws in place for punishing by death those who illegally form groups organizations or

associations against the state152

Saudi Arabia too is worth note for its vaguely phrased laws governing capital punishment

Intentional murder and crimes that spread ―mischief in the land (Fasad fil-ardh) merit death In

2010 the government announced that it had executed 26 people all by beheading Crimes that

―spread mischief include witchcraft and sorcery153

How is one convicted of witchcraft in the

21st century What can the international community do when regarding countries such as these

Treason arguably along with murder is the capital crime that has yet to be phased out by many

countries In some such as Brazil treason during warfare is the only crime for which a person

can be sentenced to death In the Gaza Strip under Hamas any sort of cooperation with Israeli

forces during military actions is also punishable by death In others including Algeria Bahrain

Iran and Malaysia treason is punishable by death in all circumstances The United States too has

federal laws governing treason under which traitors ―shall suffer death154

Child sex abuse is another crime that is widely held to merit the death penalty In Russia for

example according to the Russian Public Opinion Research Center an overwhelming majority

consider the death penalty to be an acceptable punishment especially in relation to molestation

155 In 2009 however Russias Constitutional Court effectively abolished the death penalty by

extending indefinitely a 13-year-old moratorium on capital punishment156

Indonesia has some of the strictest penalties for drug related crimes in the world Roughly half of

those on death row are incriminated with drug-related charges157

In 2008 though the most high

profile executions were of terrorists Three of those found responsible for the 2002 Bali

bombings were executed by shooting158

Generally speaking however a significant proportion of

152

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 153

httpwwwstategovgdrlrlshrrpt2010nea154472htm 154

httpdeathpenaltyproconorgviewresourcephpresourceID=1172 155

httpenrianrutrenddeath_penalty 156

httpwwwreuterscomarticle20091119idUSLJ330478 157

httpwwwnytimescom20080711worldasia11iht-indo114421132html 158

httpnewsbbccouk2hiasia-pacific7718246stm

UNHRC 39 of 44

the executions or death sentences recorded (in 2010) in China Egypt Indonesia Iran Laos

Libya Thailand United Arab Emirates and Yemen were for drug-related offences In December

2010 the amended Anti-Narcotics law came into force in Iran extending the scope of the death

penalty to include additional categories of illegal drugs (for example crystal meth) possession

of which became punishable by death Also around the same time the National Assembly of

Gambia voted to extend the scope of the death penalty by making the possession of more than

250g of heroin or cocaine an offence punishable by death159

Several states allow for the death penalty for crimes of blasphemy and other crimes for

nonviolent expression and association In Pakistan Aasia Bibi a Christian mother of five was

charged with blasphemy and sentenced to death after a trial largely believed to be unfair on 8

November 2010 She is currently on death row The country is also noted for its laws concerning

capital crimes The list includes 27 crimes most of which go beyond the notion of ―most serious

crimes as recommended by the International Covenant on Civil and Political Rights Extra-

marital sex and blasphemy are examples of some capital crimes in the country In December

2007 Pakistan voted against a United Nation General Assembly resolution for a moratorium on

the death penalty The year before however the nation amended its law on rape and adultery

charges which are no longer punishable by death160

As far back as 1989 recommendations have been made as to how to abolish the death penalty

Member states (of the UN) have been urged ―to publish for each category of offence for which

the death penalty is authorized and if possible on an annual basis information about the use of

the death penalty including the number of persons sentenced to death the number of executions

actually carried out the number of persons under sentence of death the number of death

sentences reversed or commuted on appeal and the number of instances in which clemency has

been granted and to include information on the extent to which the safeguards referred to above

are incorporated in national law161

The committee must inspect how far this recommendation

has been adopted and should seek to rectify the weaknesses in the system of gradually

abolishing the death penalty Can a target year be designated by which crimes meriting the death

penalty could be made universal How can countries with non-secular legal systems be brought

into the fold of international law

159

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 160

httpwwwfiacatorgenIMGpdfdppakistan-enpdf 161

httpgraduateinstitutechfacultyclaphamhrdocdocsecosocresolutiondeathpen1989html

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 43: UNHRCFINAL

UNHRC 39 of 44

the executions or death sentences recorded (in 2010) in China Egypt Indonesia Iran Laos

Libya Thailand United Arab Emirates and Yemen were for drug-related offences In December

2010 the amended Anti-Narcotics law came into force in Iran extending the scope of the death

penalty to include additional categories of illegal drugs (for example crystal meth) possession

of which became punishable by death Also around the same time the National Assembly of

Gambia voted to extend the scope of the death penalty by making the possession of more than

250g of heroin or cocaine an offence punishable by death159

Several states allow for the death penalty for crimes of blasphemy and other crimes for

nonviolent expression and association In Pakistan Aasia Bibi a Christian mother of five was

charged with blasphemy and sentenced to death after a trial largely believed to be unfair on 8

November 2010 She is currently on death row The country is also noted for its laws concerning

capital crimes The list includes 27 crimes most of which go beyond the notion of ―most serious

crimes as recommended by the International Covenant on Civil and Political Rights Extra-

marital sex and blasphemy are examples of some capital crimes in the country In December

2007 Pakistan voted against a United Nation General Assembly resolution for a moratorium on

the death penalty The year before however the nation amended its law on rape and adultery

charges which are no longer punishable by death160

As far back as 1989 recommendations have been made as to how to abolish the death penalty

Member states (of the UN) have been urged ―to publish for each category of offence for which

the death penalty is authorized and if possible on an annual basis information about the use of

the death penalty including the number of persons sentenced to death the number of executions

actually carried out the number of persons under sentence of death the number of death

sentences reversed or commuted on appeal and the number of instances in which clemency has

been granted and to include information on the extent to which the safeguards referred to above

are incorporated in national law161

The committee must inspect how far this recommendation

has been adopted and should seek to rectify the weaknesses in the system of gradually

abolishing the death penalty Can a target year be designated by which crimes meriting the death

penalty could be made universal How can countries with non-secular legal systems be brought

into the fold of international law

159

httpwwwamnestyorgennews-and-updatesreportdeath-penalty-2010-executing-countries-left-isolated-after-

decade-progress 160

httpwwwfiacatorgenIMGpdfdppakistan-enpdf 161

httpgraduateinstitutechfacultyclaphamhrdocdocsecosocresolutiondeathpen1989html

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 44: UNHRCFINAL

UNHRC 40 of 44

Extrajudicial Killings

Extrajudicial killings are as the name indicates carried out in contravention to established legal

procedures The practice is often employed by states and regimes to execute dissidents From the

point of view of the international community extrajudicial killings are all the more troubling

given that firstly the death penalty is far from an ideal punishment and that secondly all death

sentences which have to be imposed must be handed out through due processes in order for them

to be just and deserved Furthermore it is often the case that one arm of the government is

responsible for killings that are not strictly judicial while the other arm is forced to look on

Within the framework of a general discussion on human rights the subject of arbitrary

executions has often been discussed in the United Nations In 1992 the Commission on Human

Rights extended the existing Special Rapporteurlsquos mandate and a post for the Special Rapporteur

on extrajudicial summary or arbitrary executions was created This guaranteed an approach that

included all violations of the right to life as guaranteed by a large number of international human

rights instruments The mandate of the Special Rapporteur covers all countries irrespective of

whether a State has ratified relevant international Conventions162

In countries which have not abolished the death penalty sentence of death may be imposed only

for the most serious crimes in accordance with the law in force at the time of the commission of

the crime and not contrary to the provisions of the present Covenant and to the Convention on

the Prevention and Punishment of the Crime of Genocide This penalty can only be carried out

pursuant to a final judgment rendered by a competent court

- Article 6(2) International Covenant on Civil and Political Rights

While it is still the case that international law does not prohibit the application of the death

penalty however given the fundamental nature of the right to life the circumstances in which

the death penalty may lawfully be applied are strictly circumscribed Executions carried out in

violation of those limits are unlawful killings The death penalty is only ―lawful when imposed

after a trial conducted fairly involving an independent judiciary the provision of competent

counsel and a right to appeal among other things International law has it that when governments

are in a state of turmoil and cannot guarantee such trials they should suspend their executions

Also to be noted is the fact that states that impose the death penalty must provide transparency in

relation to the specifics of the processes and procedures under which it is imposed 163

What often occurs in states where extrajudicial killings take place is that for various reasons

those responsible are rarely taken to task This lack of accountability perpetuates the culture of

162

httpwwwohchrorgENIssuesExecutionsPagesSRExecutionsIndexaspx 163

Report of the Special Rapporteur on extrajudicial summary or arbitrary execution 2010

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 45: UNHRCFINAL

UNHRC 41 of 44

killing and extends the cycle of violence This is especially evident when there is government

involvement in violation of rights Police are oftentimes unwilling or unable to carry out

independent investigations Forensic evidence to indict those responsible is often lacking and

crime scenes are tampered with In turn the prosecutors may deal unfairly with the few cases

that are reported to them Witnesses can easily be threatened and dissuaded from testifying

especially in countries with poor witness protection programs Furthermore the majority of

nations where extrajudicial killings occur have court systems with such backlog that these cases

despite their serious nature take the backseat to others

Arguably the most famous instance of a tampered crime scene is the mass graves in Dasht-t-

Leili in Afghanistan The area is suspected of containing the remains of some 2000 Taliban

fighters killed after surrendering in 2001 Credible reports suggest that those responsible had

later removed bodies in order to destroy the evidence 164

(In 2001 during the US invasion of

Afghanistan some 250-300 Taliban prisoners were killed in their metal truck containers while in

US and Northern Alliance custody)

Extrajudicial killings often occur at the hands of law enforcement individuals or other security

forces They often shoot to kill alleged criminals instead of resorting to alternative measures

Brazil Guatemala Kenya and Nigeria are valid examples in relation to the made assertion

These occurrences can be carried out by individuals or by unacknowledged police ―death

squads While making arrests too using disproportionate amounts of force have been

documented This is often the result of poor training and lacking ―use of force rules

Another aspect of the phenomenon is the killing of alleged terrorists and criminals under ―shoot

on sight authorizations Since the global war on terror much has been shrouded under the label

of killing terrorists The Special Rapporteur notes that ―dangerous official rhetoric displaces the

clear legal standards on the use of lethal force which stipulate that the police may shoot to kill

only when it is clear that an individual is about to kill someone (making lethal force

proportionate) and there is no other available means of detaining the suspect (making lethal force

necessary)165

Some states have made use of such rhetoric to justify executions What is most

troubling is the fact that some states that have in practice formally abolished the use of death

penalty have been found guilty of using such pretenses to executed individuals In this regard

Russia and Sri Lanka serve as pertinent examples The Russian Federation introduced a

moratorium on executions in August 1996 However multiple executions were carried out

between 1996 and 1999 by the Federation in the Chechen Republic Similarly Sri Lanka is

abolitionist in practice with its last official execution occurring in 1976 However this is barring

164

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 165

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

httpwwwhrworgnews20110124bangladesh-torture-and-extrajudicial-killings 173

httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions

Page 46: UNHRCFINAL

UNHRC 42 of 44

the conflict with the Tamil tigers and the killings that have been carried out by forces on both

sides166

The case of the Islamic Republic of Pakistan serves to illustrate the extrajudicial killing of

terrorists as well as the fact that these killings occurred at the hands of one of the arms of the

government The Pakistani army has been accused of carrying out hundreds of unlawful killings

in the unstable Swat region The flipside of this is that the region has been one of great unrest

and law enforcers are often left with no other option but to retaliate with force In 2009 the

Human Rights Commission of Pakistan said that 282 extrajudicial killings by the army had taken

place in the Swat region in that year The Pakistani army has denied allegations of extrajudicial

killings ―No Pakistani Army soldier or officer has been involved in activity of this sort said

Maj Gen Athar Abbas a spokesperson for the Pakistani Army167

However at the same time

Amnesty International reported the sighting of mass graves that seemed to indicate the burial of

those extrajudicially executed168

The country also saw the major controversy of its Rangers

slaying a young boy without apparent cause in the port city of Karachi The incident was caught

on tape and is testament to a wide array of extrajudicial killings taking place in the nation 169

In conflict regions such as Afghanistan Israel Lebanon and Sri Lanka there exists a

―complementary relationship between human rights and humanitarian law Both international

human rights and humanitarian law apply to limit the circumstances under which States may

intentionally kill specific individuals both in and outside the context of armed conflict170

States are responsible for extrajudicial killings in several instances Firstly and most apparently

a state is responsible when non-state actors operating at their behest commit killings Most

commonly this occurs when private government controlled militias are ordered to kill political

opponents Governments are also responsible for the actions of private contractors who engage in

core state activities such as law enforcement Non-state parties in armed conflict are directly

responsible for any violations of international humanitarian law These parties are present most

notably in Afghanistan Colombia the Democratic Republic of the Congo and Sri Lanka171

Extrajudicial killings are often a feature of developing nations Bangladesh has seen its joint

police-military Rapid Action Battalion Force (RAB) carry out killings that are frequently termed

crossfire killings Crossfire victims are often found to bear torture marks on their bodies

inconsistent with the claim that they were merely shot at The Human Rights Watch has reported

extensively on the matter and found that Indialsquos Border Security Force (BSF) is also responsible

for indiscriminately and excessively using force against Bangladeshis trying to cross the border

166

httpwwwamnestyorgendeath-penaltycountries-abolitionist-in-practice 167

httptribunecompkstory57603us-urges-pak-to-probe-video-showing-apparent-execution 168

httpwwwaljazeeracomnewsasia2010092010930102124776944html 169

httptribunecompkstory188609rangers-killing-ag-advises-immediate-sacking-of-rangers-police-chiefs 170

httpwww2ohchrorgenglishbodieshrcouncildocs14sessionAHRC1424pdf 171

Ibid

UNHRC 43 of 44

in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

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President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

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in search of better opportunities In this regard it has suggested that ―the Bangladesh government

hellip(has to) be more vocal and determined in pressing the Indian government to restrain the Indian

border forces and to end the killings that too often occur all along that border172

In Mexico another troubled developing nation extrajudicial killings are largely linked to the fact

that the country is a huge hub for drugs Since President Felipe Calderon assumed his post in

2006 a ―war on organized crime was declared in Mexico which has ironically exacerbated the

situation rather than alleviated problems The Human Rights Watch claims that ―after declining

steadily for nearly two decades the overall homicide rate grew by over 260 percent from 2007

to 2010 There have been more than 11000 drug-related deaths reported in the Mexican press so

far in 2011 Documented killings involve civilians executed by authorities with possible use of

torture civilians were also noted to have been executed at military checkpoints or during

shootouts instances where the use of lethal force against them was not justified

In more than a dozen cases families of the victims of killings told Human Rights Watch they had

been pressured by the Army to sign settlements agreeing to abandon all efforts to seek criminal

punishments for soldiers in exchange for compensation Nowhere is impunity more pronounced

than in the military justice system The Military Prosecutorlsquos Office said it opened 3671

investigations into human rights violations committed by soldiers against civilians from 2007 to

June 2011 only 15 soldiers were convicted during this period which amounts to less than one

half of a percent 173

In addition politically motivated killings are all too

common in countries where politicians hold great

sway over local police forces The most recent

glaring example of politically motivated

extrajudicial killings arises in the Philippines Since

President Benigno Aquino III took office on June

30 2006 extrajudicial killings have been on the rise

Unexplained disappearances and killings of regional

and local candidates party activists and relatives of

witnesses are the norm The country faces multiple insurgencies from the communist New

Peoples Army (NPA) and other armed groups that have been responsible for many serious

abuses In 2006 and 2007 when the United Nations the United States the European Union and

several other major donors publicly raised concerns over the politically motivated killings under

then-President Gloria Macapagal-Arroyo the number of killings dropped drastically Under

172

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httpwwwhrworgnews20111109mexico-widespread-rights-abuses-war-drugs

UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

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UNHRC 44 of 44

President Aquino though the international focus and pressure has decreased while the killings

continue174

In Palestine and Iran killings occur as the end result of judicial processes that are questionable

In the Philippines no semblance of trials exists Hamas for the first time carried out ―judicial

executions since it took over Gaza in 2010 Two men were killed for conspiring with Israel

against the Palestinians Their deaths were the result of military trials whose legitimacy has been

questioned 175

There is a need for the international community to call upon nations to reform their military

codes of conduct to ensure that all cases of alleged human rights violations committed by the

military against civilians be investigated and prosecuted in the civilian justice system While it is

true that a significant number of those extrajudicially killed are not entirely innocent that is not

cause enough for them to be executed without pursuing the correct channels and giving them a

fair attempt at a trial The criminal status of individuals does not take the blame away from

authorities who dole out the death penalty in a manner that is not by the books Furthermore the

fact that a many individuals of those killed are innocent and are killed for political reasons is

deeply disturbing

Can a general list be brought up tracing commonalities in motivation regarding extrajudicial

killings What reforms must be made to military codes of conduct to mitigate killings at the

hands of armed forces Isolate and remedy the most glaring of gaps in judicial system of nations

where extrajudicial killings are common What recommendations should the HRC make to the

GA with regards to governments that blatantly use death squads

Conclusion

The committee will be expected to draw up firm and comprehensive solutions to all the given

aspects of debate while including other issues related to the topic These solutions can be

proposed in the form of a new international potentially binding covenant where the committee

will have to draft primary clauses The covenant will then be enforced through a resolution in the

UNHRC and be recommended for ratification in the GA This is in the same vein that other

actual UNHRC observances and decisions are forwarded to the General Assembly The

resolution may contain other aspects of the debate that do not fit into the international covenant

thereby creating an encompassing and inclusive strategy to terminate the practice of the

imposition of the death penalty

174

httpwwwhrworgnews20110718philippines-new-killings-impunity-reigns 175

httpwwwhrworgnews20100415gaza-halt-executions