Why Indonesia Should Not Resume Executions

Yesterday, following reports and rumours from two weeks ago, Indonesian police confirmed that the country is about to lift its de facto moratorium on the death penalty. This is a clear step backwards, both legally and morally.

It has been a year since the “drama” (as the Indonesian Security Minister calls it) surrounding the executions of eight people, including Australians Andrew Chan and Myuran Sukumaran, for drug-related crimes. As a reminder, the drama in question was generated by other governments’ lobbying efforts on the condemned prisoners’ behalf – efforts which in Australia’s case ranged from the principled (based on the value of mercy) to the seriously unhelpful (based on a putative “favour” owed to Australia by Indonesia in return for tsunami aid).

Of course those are not the only arguments which were (and continue to be) mounted against the death penalty. Its value as a deterrent to would-be criminals is not supported by the evidence, despite proponents’ claims for it. In addition, its status at international law is as an outmoded form of punishment, to be phased out globally, and in the meantime reserved for the “most serious” of crimes. The Human Rights Committee has stated unequivocally that only crimes involving intentional killing fall into this category, which means that executing drug smugglers/peddlers (who make up nearly half of those sentenced to death in Indonesia) violates international law. The International Covenant on Civil and Political Rights, to which Indonesia is party, also specifies that prisons are to be places for “rehabilitation and social reformation.” Death row cannot meet this requirement.

As for the claim of a “drug emergency” necessitating extreme measures from the Indonesian Government, the UN Office of Drugs and Crime has comprehensively debunked that justification, showing that illegal drug usage in Indonesia is actually far lower than that in countries such Australia, New Zealand and the UK.

In the wake of the Bali Nine executions, and particularly the controversy surrounding the Australian Federal Police’s involvement, the Minister for Foreign Affairs asked the Human Rights Subcommittee of the Joint Standing Committee on Foreign Affairs, Defence and Trade to inquire into Australia’s advocacy for the abolition of the death penalty. For the next eight months, the Subcommittee heard from witnesses (including the author) who made submissions about how Australia could be more consistent and principled in its opposition to capital punishment – particularly in our region, where we are more likely to have some influence. The Sub-committee handed down its report on 5 May, recommending Australia strengthen its advocacy significantly (based on human rights arguments) and review its domestic laws and guidelines to ensure the default position is not to cooperate where people face a risk of being executed.

Among the testimony before the Human Rights Subcommittee was information on cases, for example in Louisiana, in which those on death row have had their convictions overturned due to the efforts of committed representatives. Being imprisoned based on a wrongful conviction is reprehensible, but at least leaves the door open for those affected to resume their lives once the error is corrected. Executions do not allow for this possibility. In any imperfect criminal justice system (that is to say, all of them), such a risk to innocent lives should not be countenanced. Amnesty International released a report late last year which revealed “endemic judicial flaws” and possible coerced confessions in death penalty cases in Indonesia, so this is not just an abstract concern.

The Guardian reminds us that those currently on death row in Indonesia are real people, of many different nationalities and from different walks of life. Some have governments such as those of France and the UK lobbying fiercely on their behalf (ironically, the Indonesian Government is also prepared to do this for its citizens overseas); others come from countries such as the US which are not inclined to intervene. As in the Bali Nine case, some are drug “mules,” whose culpability is less than that of those who sent them. It should go without saying that none of them deserves to suffer such a brutal and anachronistic punishment (which is not to say they should not be punished at all).

The Turnbull Government has been focused inward to date. The Prime Minister, on his official visit to Indonesia in November, studiously avoided the issue of executions and the Abbott Government’s ambassadorial withdrawal in the wake of the Chan/Sukumaran executions last year. The looming resumption of State‑sanctioned deaths by firing squad is an opportunity for the Australian Government to show that it is not just a fair weather opponent of the death penalty. To be taken seriously, it should be prepared to push against capital punishment even when Australian lives are not on the line. In discussing Australia’s bid for a UN Security Council seat in September last year, Foreign Minister Julie Bishop said “Australia would be…a leading advocate for global abolition of the death penalty.” That was the talk, but now it’s time to walk the walk.

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