Danger to the Public in Canada
Under the Criminal Code and Immigration Act of Canada
The Death Penalty in the Modern World, A critique
Political Halley's Comet,The Death Penalty in Global Comparative Perspectives:
Case Studies of Canada, India, Apartheid South Africa, Nigeria, Jamaica,
Grenada,
Uganda, Nazi War Crimes and International Law
Munyonzwe Hamalengwa, Editor for Nelson Mandela
Introduction: Theories of Punishment and the Death Penalty The death sentence when it is carried out, is the ultimate punishment. A person is obliterated for ever by an act of state. Of the two major justifications for punishment: retribution and revenge and utilitarianism, (and the various strands of deterrence, rehabilitation, etc.) the death penalty seems to accomplish more the retributive aspect of punishment. The State inflicts the ultimate revenge against the culprit - death. If the death penalty is justified under the deterrence aspect of utilitarianism, it achieves the final specific deterrence against the individual. Because the person is killed, he is therefore 'deterred' for eternity. It is something else if general deterrence is the one sought after. Are others deterred by the death penalty?
The following papers discuss various theories both justifying and disqualifying the death penalty as a form of punishment. The thread that runs through some of the papers is that general deterrence under which the death penalty is justified has not been achieved. In those societies where the death penalty exists, for example in some U.S. States, murder, which is the major crime that commonly attracts the death penalty, continues to be committed. In some cases the murder rate dropped after the abolishment of the death penalty. In Canada, for example, the murder rate fell from 3.09 per 100,000 in 1975 (the year before abolition) to 2.74 in 1983.1 The death penalty thus does not affect the rate of murders. In the U.S., the murder rate in death penalty states has differed little from that in other states without the death penalty but with similar populations and social and economic conditions.2 Others have argued that even if the death penalty has no special effect in deterring others, the execution of the worst offenders is needed to protect society from the risk of their repeating their crimes. The evidence however is that among offenders released on parole, convicted murderers present one of the lowest risks of recidivism.3 Most murderers are first time offenders. The implication is that the death penalty is not the answer.
* Munyonzwe Hamalengwa practices law in Toronto, Ontario, Canada
What is the answer? No answer seems to come out clearly in these papers except the suggestion of alternative sentences. This means prison terms are preferred rather than persons being put to death. There may be a possibility of rehabilitation. A life sentence may be the ultimate punishment since an individual is reminded every second, minute and hour of his/her life, why he/she is in prison. The person is given the opportunity to commiserate over the crime every day. The constant realization of the wrong done may be more painful than the death sentence itself whereby the person is gone forever. There can also be minimum sentences e.g. 25 years without parole. This would be enough punishment.
It could, however, be urged that a life sentence is not the ultimate sanction since the person could escape from prison; may be paroled or forgiven; the person may turn into a sadist and not care at all about why he/she is in prison, etc. One person could kill again.
The question seems to be, should there be need for ultimate sanctions in modem society?
There are many reasons for opposing the death penalty. Perhaps the most important one is that it is a very unusual, painful and inhuman form of punishment. It inflicts irreparable damage to the victim more than the victim is likely to have meted out to the person he/she killed, if revenge was the reason for the death sentence. Amnesty International in the report cited above describes how the person sentenced to death has a long painful struggle through various appeals to the day he/she is told that he/she will die on a certain day. The person is then segregated from the other deathrow inmates, he/she is shaved and so on. The final day then comes. There are usually last minute appeals, which sometimes lead no where.
The pain through the years, months, weeks, days, hours and minutes leading up to the carrying out of the death sentence cannot be fathomed of course by anybody who has not been through the death row process and reprieved at the last minute. Many death row inmates experience mental derangement in their last days. That is cruel unusual and inhuman treatment and punishment. It is even more unusual in the sense that it is a deliberate and conscious legal policy by a government to take away a life. The death penalty is in a class by itself. It is intended to inflict painful death By the state.
There is also the question of the execution of the innocent. In a U.S. study, it was discovered that between 1900 and 1985, 349 people were wrongly convicted of offences punishable by death.4 Twenty-three of these were executed. These are lives that cannot be brought back. In Canada, Wilbert Coffin was hanged on February 10, 1956 for three murders somebody committed in 1953. Coffin maintained his innocence to the bitter end. Many lawyers believed at the time that Coffin was innocent. Also in Canada, Donald Marshall, recently released, spent eleven years behind bars for a murder he did not commit.5 Convicting and occasionally hanging wrong people is one of the strongest reasons for opposing the death penalty. David Milgaard of Canada was exonerated in 1997.6
If the death penalty existed in Canada, Guy Paul Morin who was convicted at his second trial in 1992, but exonerated in 1995, may have been hanged.7 It goes the same for the Guildford Four and the Birmingham Six in England as well as the Sharpeville Six in South Africa. All these were exonerated after spending years in prison.8
Studies on the death penalty in the US demonstrates that blacks receive the death penalty which is disproportionate to their population or the rate at which they commit offences that attract the death penalty.9 In December 1994, for example, 40% of the men on death row across the U S were black even though blacks constitute only 11% of the U S population. In Pennsylvania, blacks on death row now constitute 60% of those on death row , even though the black population there is merely 9% of the total population. The following facts have further emerged:10
(1) defendants charged with killing white victims in Georgia are 4.3 times as likely to be sentenced to death as defendants charged with killing blacks; (2) race [of the victim] determines whether a death penalty is returned; (3) nearly six of every eleven defendants convicted of killing whites would not have gotten the death penalty had their victims been black; (4) twenty of every thirty-four black defendants would not have received the death penalty had their victims been black; and (5) cases involving black defendants and white victims are more likely to result in a death sentence than cases featuring any other racial combination of defendant and victim.
Class also plays an important role in the imposition of the death penalty. Poor defendants are more likely to receive the death penalty than rich defendants. The rich can afford to hire experienced and good lawyers while the poor retain court appointed duty counsel on a $2,500.00 U. S. fee! In the meantime, the state unleashes unlimited resources.11
In societies where the judicial system is tainted by racial prejudices, for example Apartheid South Africa and the U.S., many people have been convicted and sentenced to death, on flimsy evidence or to satisfy public opinion. If the death penalty is abolished, the racial incidence in biased death sentences will also disappear thereby ensuring equality between races within the criminal justice system. The death penalty is also imposed like a lottery, others get it while others don't. In the U.S. it also depends on where the murder is committed, retentionist state or non-retentionist state.
Lastly, maintaining the death penalty is costly both to the convict and to the State. Millions of dollars are spent to process the appeals and to ensure the existence of facilities for those on the death row. Why should resources be used in such a manner to ensure the killing of a person by the State?
Notes 1. See Study Cited in Amnesty International, United States of America: The Death Penalty (1988) p. 162. 2. Ibid. 3. Ibid at p. 168. 4. Ibid at p. 172. 5. See Marshall Commission Inquiry (1989) 6. Milgaard was vindicated after DNA tests done in England 7. See Kirk Makin Redrum the Innocent, (Toronto, 1994) 8. There are many others around the world 9. See Jesse Jackson, Legal Lynching ,( New York, 1996) 10. See Mumia Abu-Jamal, Live from Death Row, (Reading et al, 1995) PP XIX and 35 11. See Mumia Abu-Jamal, Death Blossoms (Farmington, 1997) P.141 |
The Death Penalty in Comparative Perspective This volume of essays represents an attempt to come to grips with the issue of state killing, a process usually couched in the more neutral terminology of "the death penalty" or "capital punishment." For reasons that need not be recited here, the question of state killing has become very controversial over the past decade and seems likely to remain topical well into the next century. At the beginning of the 1970s few North Americans and Europeans were aware of violent repression in the Third World and the role of their governments in perpetuating conflict in nations such as Chile and El Salvador. Fewer still thought these issues deserved serious attention. Today that situation has altered dramatically, and many people are aware of the repressive governments in Apartheid South Africa and other countries in Central and South America. In Canada the problem of state repression and the killing and torture of citizens is qualitatively different from that evident in the Third World. However, the increasing discrepancies between sentences handed out to the rich and the poor for similar offences and other issues such as the abuse of powers by officers in the Canadian Security Intelligence Service (CISS) suggest that there are intense structural conflicts and power struggles simmering in the murky brew called the Canadian justice system. Under the calm exterior that is presented to the Canadian public by our political leaders and most of the media, some of these structural conflicts are evidenced as peculiar contradictions that rear their ugly head every decade or so. One of these contradictions is the push by some neo-conservative agents to reinstate the death penalty in many advanced capitalist nations. Pro-noose advocates argue that it is more economical to destroy people deemed to be "rotten" by the State and the courts than attempt to rehabilitate them. They point to the rising cost of prison facilities to support their position. In the United States, the death penalty has never really faded in importance, partly because of enthusiasm for this approach to policy-making. Canadians have never shared the same degree of enthusiasm for the death penalty that Americans and their counterparts who support military regimes in the Third World * David McRobert, at the time was with the Ministry of the Attorney General, Constitutional Law and Policy branch demonstrate. There are several myths that purport to explain this discrepancy in attitudes. One myth is that our federal legislators, who are mainly lawyers and cognizant of the fact that small mistakes can result in wrongful convictions, and even a tragic death, feel it is better to err on the side of caution than to wrongfully end a life. Another part of this myth is that the courts are not always as free from bias as they purport to be; this was shown graphically in the testimony presented at the Marshall Inquiry in Nova Scotia in 1987 and 1988. In this case, it has become apparent that the judiciary and the police in the province teamed up to frame a young Micmac Indian named Donald Marshall as the killer of another young man. Marshall was later shown to be innocent and released, a result that would have been prevented if he had been wrongfully killed by the State for a crime he did not commit. Others would invoke the myth that Canadians are a more tolerant peoples as the explanation for our unwillingness to apply the death penalty; thus our justice system reflects an attempt to draw on the best aspects of both British and American legal culture. As a result, most Canadians have less reverence for the system of rough justice that often seems to prevail in the United States. Whatever the basis of the different attitudes held by Canadians and many other European societies on the matter of state killing, the issue of reinstatement of the death penalty has resurfaced periodically in various nations over the past fifty years. In Canada, the issue took on considerable significance in early 1987 because many people suspected the federal government would be launching a process to revamp laws and reinstate the death penalty. In the 1984 federal election campaign, Brian Mulroney, leader of the Progressive Conservatives, had promised there would be free vote on the issue in the House of Commons if his party formed the government. In stunning fashion, the Progressive Conservatives were swept to power with the largest majority in Canadian history, and pro-noose advocates were quick to claim that Mulroney's support for a vote on reopening the death penalty issue in the House was one reason. Only days after the election, the campaign for reinstatement of the death penalty began to gain momentum under the leadership of certain Tory backbenchers such as Bill Domm, MP for Peterborough, Ontario. Death penalty advocates pointed to mass murderers such as Clifford Olson, who had murdered many children in a serial fashion in British Columbia in the early 1980s, to argue that society needed protection from uncontrollable killers who were not salvageable through reform programs. After years of lobbying, death penalty advocates finally were able to get a commitment from Brian Mulroney that a vote on whether the issue should be reopened would take place in 1987. The forces opposed to reinstatement began to regroup and establish their own lobby to ensure that their view was not overlooked once the time frame for the parliamentary debate became clear. Prominent among opponents to reinstatement were Toronto lawyer Eddie Greenspan and the mother of a young girl who had been killed in the Toronto area in 1986. In anticipation of the debate in the House, national magazines such as Maclean's and many newspapers and other media began to feature articles on the issue. At the same time, students at Osgoode Hall Law School who had recently formed a group called the Nelson Mandela Law Society, in honour of the currently imprisoned leader of the African National Congress jailed in South Africa for the past 25 years, began to plan their first conference, tentatively titled "The Death Penalty: A Political Halley's Comet." Their intent was to provide a stimulating forum for discussion of the death penalty, and perhaps even influence the outcome of the parliamentary debate that they anticipated would take place in the Fall of 1987. As it turned out, Parliament rejected the attempt to reinstate the death penalty in June 1987, following a passionate debate in the House of Commons.
Although some might have viewed this as a major setback, organizers decided to proceed with the conference because the issue remains topical in the international context and, like Halley's Comet, returns to haunt civil rights activists every decade or two.
The conference was held over two days and featured many excellent speakers. Their presentations provided a framework for informal discussion and participation. While it has not been possible to include all of the papers presented at the conference in this volume, all of the presentations merit at least some commentary. However, most of the analysis will focus on the papers contained in this volume. The event began with an address by Earl Levy of the Ontario Criminal Lawyers' Association. Levy summarized the paper included in this volume prepared by the Association as a brief to the House of Commons during the debate over reinstatement of the death penalty. In summarizing the report Levy reviewed various statistics on the crime rates and the death penalty, concluding that deterrence argument is misleading. "If the death penalty does have a (deterrent) value", he asked rhetorically, "why were 18,500 people killed in the United States in 1985?” In response to his question, Levy cited well-known evidence that most pre-meditated killings are committed by people who do not expect to get caught and many other murders are acts of passion. The only people who might deserve capital punishment, he contends, are terrorists. However, Levy expressed reluctance about this approach to state killing because "using the noose" might make terrorists into martyrs. Levy then went on to criticize the media for its role in portraying people who kill. He pleaded that "people who kill are three dimensional ... their lives went on before the crime and could go on after it." Moreover, “ if Canadians believe in rehabilitation, then we must not engage in State killing.” In the discussion that followed, Levy was also critical of Victim Impact Statements. Although he acknowledged that the victims of crime have long been the orphans of the criminal justice systems, he feels that their needs are better addressed through counseling.
The next speaker, Kenneth Avio, presented one of the most scholarly papers of the conference. Avio, a professor at the University of Victoria, approached the problem capital punishment in terms of both moral philosophy and economic theory. According to Avio, these two theories suggest that an idealized legislature should reject capital punishment.
Avio further argued that state killing is not supported by thorough economic analysis. Avio outlined a form of constrained cost-benefit analysis (CBA) that could be applied to assess the validity of the capital punishment as a deterrence mechanism. Among the key benefits of capital punishment that would factor into such an analysis would be a reduced prison population and the element of deterrence. The costs of capital punishment would include the destroyed "human capital", the cost of the judicial/legislative machinery required for death sentence appeals and the costs of "brutalization effects" of the death penalty.
This last cost is one that Avio has been unable to quantify because little empirical research has been undertaken to date. However, Avio thinks that the CBA for the death penalty hinges on the cost of the judicial / legislative machinery required for death sentence appeals. Avio doubts that the current system can be made cost effective, primarily because it is rife with racism. According to Avio, there is considerable historical evidence that race is the pre-eminent factor in decision on capital punishment cases. He cited statistics showing native Canadians were six times less likely to have their sentences commuted compared to whites who had committed similar crimes based on data for 462 death sentences handed out between 1920 to 1967.
While this does not confirm that the justice system would continue to function in this way if the death penalty was reinstated in Canada, it could be argued that based on this research, Avio believes that a "constrained" CBA would reveal that the arguments made in favour of capital punishment on economic grounds are unconvincing and illogical. Following his presentation, several commentators praised his work as particularly elegant and persuasive.
At the beginning of the 19th century, capital punishment was increasingly challenged by reformers who associated it with "aristocratic oligarchies” wielding power in tyrannous ways. Despite these challenges, the reformers were not successful for more than thirty years. Tories argued that if capital statutes were abolished, criminals would be more bold since policing was inadequate. Thus, an omnibus bill abolishing most capital statutes in England was only passed in 1837.
Other social forces also contributed to the erosion of the popularity of the death penalty. Many Tories believed that public executions were becoming popular, and in the United States hanging was seen as a waste of time because it led to drunkenness and attracted immigrants to congregate in a central area. This could be threatening to the State and no doubt certain critics felt pressure must be brought to eliminate state killing for minor offenses because growing awareness of the contradictions in the justice system might rile the masses who attended these events.
Hay went on to draw out the implications of his analysis for more modern attitudes towards state killing. In the result, Hay maintains that those who support capital punishment do so because it meshes with their world view. Accordingly, instrumental arguments are probably not important to most Americans who support the death penalty. A combination of socialization forces that promote authoritarianism and maintain the popularity of capital punishment are likely most important. Thus, in spite of the convincing arguments against deterrence as a rationale for capital punishment, the popularity of state killing continues to grow in the United States and certain regions of Canada.
In Glasbeek's view, herein lies one of the intriguing contradictions of capitalism. Somehow an arbitrary distinction between good greed, the premeditated crimes committed by corporations and their leaders, and bad greed, the crimes of thieves or drug pushers, is upheld. This distinction allows corporate executives and other white collar criminals to steal billions and violate occupational health and safety standards without facing serious penalties. Instead, relatively minor crimes such as theft or even crimes of passion are used to justify tougher criminal laws.
Glasbeek went on to observe that this distinction allows certain corporate interests to poison workers and improperly bury PCBs for profit. In an ironic manner, he suggested, with his tongue firmly in his cheek, that perhaps Canadians should welcome the return of the death penalty, particularly if Bill Domm and other pro-noose advocates can be convinced that there are some great candidates from the corporate world who should be all lined up to deal with first. Unfortunately, the papers by Glasbeek and Hay were not available for inclusion in this volume.
The fourth part of the volume contains two of the papers presented in this session. The first paper, presented by Jossi Schwartz, a lawyer at Roach and Smith in Toronto, advocates the death penalty for those criminals guilty of gross crimes against humanity. He begins with a stark inventory of the millions of people killed by the Nazis during World War II. In his view there are no more appropriate candidates for the death penalty, and Schwartz goes on to note that it is despicable that thousands of Nazis escaped to North America, South America and Australia, often with the help of western nations, after the War.
In the last presentation on the first day of the conference, Munyonzwe Hamalengwa presented an overview of his argument for the prosecution of people accused of War Crimes and Crimes against Humanity. While Hamalengwa did not go as far as Schwartz in his analysis of the application of sanctions against war criminals in Canada, he agreed with Schwartz that it is deplorable that many despots and tyrants end up escaping to North America.
Hamalengwa went on to argue the new legislation proposed to deal with war criminals and those guilty of crimes against humanity should be used to prosecute Apartheid criminals. In the alternative, he feels it is possible that Botha and some of his cohorts will eventually seek refuge in Canada. Hamalengwa’s paper is also included in the fourth part of this volume, but severely edited and limited to the issue of the death penalty under apartheid in South Africa.
On Sunday morning, the Conference recommenced with a fascinating account of the human rights problems in Grenada since the 1983 American invasion. The account was presented by Charles Roach, a prominent Toronto lawyer hired by the family of one of those charged in an alleged coup attempt which resulted in the death of 11 people, including Maurice Bishop, on October 19th, 1983. Roach summarized a paper written by Tony Gifford, titled "The Grenada Murder Trial: No Case for Hanging."
The background to this series of events was summarized as follows. In October 1983 a conflict emerged between Bishop, the Prime Minister of Grenada from March 1979 to his death on 19th October, 1983, and members of the Central Committee of the New Jewel Movement (NJM). In the eyes of many observers, Bishop's leadership had become "a beacon of progress" in the Caribbean. However, the latter group, led by Bernard Coard, Deputy Prime Minister and Minister of Finance, challenged the moderate policies of Bishop. After a power struggle, Bishop was captured by the Central Committee of the NJM. A brief period of confinement ensued and after a public demonstration, Bishop was killed. Later that month Reagan invaded Grenada under the pretense of regional de-stabilization.
Predictably, the trial of those who were viewed as responsible for the death of Bishop was extremely political. Roach contends that the court which was eventually established did not have competent jurisdiction. In addition, he asserts that millions of dollars were funneled to the Caribbean Judiciary in anticipation of the trial and the jury selection process was extremely irregular. Roach also pointed out that the jury deliberated only three hours on over 190 murder counts which were spread among the 19 people, charged.
In view of these circumstances the trial results were also predictable. Guilty verdicts against 13 men and one woman were returned on 4th December 1986 and these fourteen people were sentenced to the mandatory sentence of death applicable in such cases. Roach does not dispute that some sort of murder trial should have taken place. However, he thinks that in this case the trial was a sham and a violation of Grenadian sovereignty. In his view, a new trial should be held and other investigations should be undertaken regarding the deaths of other people at the hands of the military. If this does not take place, the American government will have effectively used these trials to teach Grenadians that they should not dabble in socialist politics.
Following Roach's presentation, Yola Grant presented a paper on the death penalty in Jamaica. Her analysis relied primarily on a report from Amnesty International prepared in 1984, which is extracted in this volume, and on her personal knowledge of life, having grown up in the country prior to coming to Canada in the 1970s.
As background, Grant noted that prior to 1976 the Jamaican State took the lives of about 5 people a year. Between 1976 and 1980, no executions took place while a series of commissions investigated the "purpose" of the death penalty. According to Grant, a "weak-kneed" report against the death penalty was released and in January 1979, a Bill to abolish it was defeated. As a result, the hangings commenced again in 1980. Since then, the rate of state-killing has accelerated; in one month, over 18 people were killed. Grant believes that this is only part of the problem. She commented that the conditions on death row are appalling - hot and dark with no opportunity for exercise.
Grant went on to comment that there is a class basis for this pattern of execution. According to the Amnesty Report, 80% of those people executed in Jamaica were from the lower economic group. Moreover, two-thirds of those sentenced were first time offenders and many of the murders were committed in emotionally-charged situations.
Another aspect of the problem in Jamaica relates to the fact that many killings take place in the context of political fights during election campaigns. While these killings attract media attention, often the gunmen responsible are not caught and, if they are, police shoot them on the spot. Meanwhile, the widespread problem of "wife murder," which Grant contends accounts for up to 30% of the murders committed in the nation, is ignored by the media. Grant was also critical of the amount of discretion invoked by police in murder cases. She noted that police clear-up rates have declined dramatically recently and that prosecution rates have also dropped to 32% from 71% in the 1970s.
The final session of the conference continued with a presentation by Mariela Morales. Morales, a former lawyer in Chile and currently an advisor with the Ontario Ministry of Labour, surveyed the meaning of the death penalty in context of political repression in Chile. She noted that although the death penalty was part of Chile's criminal code prior to 1973, it was rarely used. Although debates on the death penalty had sometimes taken place, reformers had failed to have the provisions removed. When the military came to power in 1973 in Chile, these provisions became a powerful tool for the government. However, Morales contends that the decision to apply the provisions again was largely overshadowed by the severe violations of human rights and killings that took place over the next decade. It estimated that over 23,000 people disappeared in Chile during this period. While military officers invoke the defense that they were dealing with terrorists, others have suggested that these disappearances were merely brutal killings. In view of this pattern, the death penalty pales in comparison with the specter of state-sanctioned military killings. Morales’ paper is not available in this collection.
Papers that followed surveyed application of the death penalty in India and Uganda. The first by F.S. Nariman on the Indian experience reviews attempts to reform British laws that stipulate the death penalty is an acceptable punishment for many crimes. Nariman was critical of these laws because they allow judges to exercise an enormous amount of discretion in the application of the death penalty, and consequently provides judges with enormous amounts of political power.
Akena Adoko considered the history of the death penalty in Uganda. He concludes that many Ugandans support the death penalty for irrational and emotional reasons. For example, Adoko points out that people fear that exposure to imprisoned murderers may influence the attitudes of other prisoners and prison staff. In this respect, both Nariman and Adoko show that efforts to bring about reform have been frustrated by historical patterns and cultural values infused by Europeans into their cultures over the past few centuries. The concluding paper was presented by Simon Daniels, an activist from South Africa who has been involved with the African National Congress (ANC) and opposed Apartheid. He provided an update on the crisis in South Africa, noting that the hanging of political prisoners in the nation had increased markedly as criticism of the Botha regime from inside and outside South Africa had mounted in the past few years. He contrasted the behavior of the Botha government with the policies of the ANC, who had signed the Geneva Conventions relating to treatment of prisoners of war. Accordingly, the ANC demanded that Pretoria should treat ANC fighters captured by the South African army as prisoners of war rather than murderers. Since this appeared unlikely to happen, the ANC suggested that crimes of apartheid would be dealt with in an aggressive manner. For example, it was proposed that when the Botha regime was defeated ANC leaders will appoint a special tribunal to mete out appropriate sentences to apartheid criminals.** Daniels’s paper was not available for inclusion in this collection. In conclusion, it is apparent that the papers presented at the conference offered important insights into the nature of state killing in the twentieth century. Those included below are among the best presented at the event, and reflect the sentiments and concerns that motivated the conference organizers. ** After the death of Apartheid, the ANC government set up a Truth and Reconciliation Commission to vet those who would be granted immunity from prosecution for crimes committed during the apartheid era. |
The Death Penalty: Canadian Perspectives
Why has Canada declared common non-citizen criminals as posing a danger to the public in Canada, while not doing the same to war criminals? It took an article in the Ottawa Citizen in 1985,[1] by a New York Times reporter, who claimed that Joseph Mengele, a Nazi Doctor (popularly called the ''Angel of Death''), was in Canada or had applied to enter Canada, to cause a "moral panic"[2] in the Canadian Government of the day to convoke a commission of Inquiry on War Criminals in Canada[3]. That the mention of Mengele triggered the panic is evident from the minute that set up the commission of Inquiry in motion[4]: WHEREAS concern has been expressed about the possibility that Joseph Mengele, an alleged Nazi war criminal, may have entered or attempted to enter Canada;
WHEREAS there is also concern that other persons responsible for war crimes related to the activities of Nazi Germany during World War II (hereinafter referred to as war criminals) are currently resident in Canada:
AND WHEREAS the Government of Canada wishes to adopt all appropriate measures necessary to ensure that any such war criminals currently resident in Canada, or hereafter found in Canada, are brought to justice.
THEREFORE, the Committee of the Privy Council on the recommendation of the Prime Minister, advises that, pursuant to the Inquiries Act, a Commission do issue under the Great Seal of Canada, appointing the Honourable Mr. Justice Jules Deschênes, of the Superior Court of Quebec, to be Commissioner under Part I of the Inquiries Act to conduct such investigations regarding alleged war criminals in Canada, including whether any such persons are now resident in Canada and when and how they obtained entry to Canada as in the opinion of the Commissioner are necessary in order to enable him to report the Governor in Council his recommendations and advice relating to what further action might be taken in Canada to bring to justice such alleged war criminals who might be residing within Canada, including recommendations as to what legal means are now available to bring justice any such persons in Canada or whether and what legislation might be adopted by the Parliament of Canada to ensure that war criminals are brought to justice and made to answer for their crimes.
The Commission understood clearly why it was convoked and Jules Deschênes was aware of the high stakes involved. He states on page 245 of the Report that ''the sensational allegations concerning Dr. Mengele's connection with Canada were the straw that broke the camel's back: the matter had to be clarified once and for all.'' The government had not responded to the call for a study into war crimes made by the very respected Law Reform Commission of Canada just the previous year. In its 1984 study entitled ''Extraterritorial Jurisdiction''[5] the Commission recommended: That the Government of Canada authorize a study of the complex subject of war crimes including relevant aspects of international law, comparative law, constitutional law, criminal law and military law with a view to determining what war crimes legislation should be enacted by Canada to replace our present outdated legislation. Until that study is done, any other recommendations would be premature. Regardless of who undertakes the study, the Ministry of the Solicitor General of Canada and the Departments of Justice, National Defense and External Affairs should be included as participants in it.
In fact the government already had several pieces of legislation on the books, pertaining to war crimes, which legislation was never used, but at the same time, it was never repealed[6]. These pieces of legislation comprised of, the War Crimes Act[7] of 1946 and the Geneva Conventions Act of 1965.[8] More significant however, is that previous references to Joseph Mengele did not cause a ''moral panic'' in the government to cause it to request for a Commission to recommend requisite legislation. The presence or attempted entry into Canada of Joseph Mengele was extensively investigated between 1961 and 1962[9]. This never led to calls for war crimes legislation. Nor did the massive albeit intermittent pressure on the governments of Canada since the end of the Second World War to do something about war crimes result in any concerted response by the government to enact war crimes legislation. This time around, Prime Minister Brian Mulroney called the Presence of Nazi war criminals in Canada," a moral outrage."[10] Suddenly reports in the press appeared suggesting that there were as many as 6,000 Nazi War Criminals in Canada.[11] Moral panic was triggered. This paper is an attempt to understand why in 1985, the government of Canada succumbed to the pressure to deal with Nazi war criminals in Canada by new and specific legislation. It is argued utilizing the concept of ''moral panic'' that the invocation of the image of Joseph Mengele in 1985, after the image had been absent for more than 20 years, became a convenient governmental precipitant to respond, especially after an accumulation of unprecedented pressure by very well organized and articulate “moral entrepreneurs'' and pressure groups. A lengthy historical background going back to 1945 is necessary in order to understand the developments of 1985. The war crimes legislation is a good example and case study of how modern pieces of criminal legislation are brought on the scene by pressure groups with vested interests utilizing ''moral panic'' of the moment or period. Depending on the timing, opportunity, pressure and duration of the ''moral panic'' incident, legislatures typically responded accordingly. It is argued that the finished product of criminal legislation is the product of a political process engineered by pressure groups or ''victim groups.'' To understand the politics of war crimes legislation[12], it is necessary to examine the history of the treatment of the issue of war crimes in Canada from 1945 to the present.
The concept of moral panic[13] was coined by Stanley Cohen to explain societal reactions to and labelling of certain incidents that must be controlled because they pose real or perceived threat to society. According to Cohen: Societies appear to be subject, every now and then, to periods of moral panic. A condition, episode, person or group of persons emerges to become defined as a threat to societal values and interests; its nature is presented in a stylized and stereotypical fashion by the mass media; the moral barricades are manned by editors, bishops, politicians and other right-thinking people; socially accredited experts pronounce their diagnoses and solutions; ways of coping are evolved or (more often) resorted to; the condition then disappears, submerges or deteriorates and becomes more visible. Sometimes the object of the panic is quite novel and at other times it is something which has been in existence long enough, but suddenly appears in the limelight. Sometimes the panic passes over and is forgotten, except in folklore and collective memory; at other times it has more serious and long-lasting repercussions and might produce such changes as those in legal and social policy or even in the way the society conceives itself.[14]
Stuart Hall and others[15] have amplified the definition of moral panic: When the official reaction to a person, groups of persons or series of events is out of all proportion to the actual threat offered when ''experts,'' in the form of police chiefs, the judiciary, politicians and editors perceive the threat in all but identical terms, and appear to talk''with one voice'' of rates, diagnoses, prognoses and solutions, when the media representations universally stress ''sudden and dramatic'' increases (in number involved or events) and ''novelty'' about and beyond that which a sober, realistic appraisal could sustain, then we believe it is appropriate to speak of the beginnings of a moral panic.[16] The moral panic caused by the invoked spectre of the possibility of Joseph Mengele being in Canada in 1985 can only be comprehended by the confluence of events, individuals and politics of the immediate period as well as the history of the concern for war criminals in Canada. The panic itself was unleashed by one Sol Littman, who had devoted his life to ventilating the issue of war criminals in the world and in Canada in particular. Sol Littman as a representative of Simon Wiesenthal, the ultimate, Nazi hunter. During the Commission of Inquiry hearings, Sol Littman admitted that he supplied the information to Ralph Blumenthal of the New York Times in his article on Joseph Mengele. Sol Littman further admitted that his assertions were based on ''speculation'', ''impression'', ''possibility'' and '''hyptheses''[17]. The general media picked this information up and splashed it in bold headlines. Suddenly Canada became to be portrayed as a ''haven for war criminals,'' a distinction Canada did not want to have. Moral panic had set in. According to the Commission, Littman's admissions of the hoax of his creation came too little too late: ''the commission could not, of course, foresee that turn of events, and it devoted some substantial time inquiring into the Mengele affairs''[18]. The Commission concluded that on the basis of the available evidence, it is established beyond a reasonable doubt that Dr. Joseph Mengele has never entered Canada''[19] The Mengele panic assumed a life of its own which still reverberates in Canada through the war crimes legislation in the Criminal Code and associated offshoots in the Immigration Act and Citizenship Act. Joseph Mengele is a name associated with some of the worst atrocities of Nazi Germany. He is an embodiment of evil. Dr. Mengele was assigned to the concentration camp of Auschwitz (a death camp) where he conducted the cruel experiments which history, according to the commission, has recorded.[20] According to Irwin Cotler, a McGill Law Professor, the allegation about Mengele may have been a catalyst in prompting the government to do something that ought to have been done some forty years ago. But Mengele was not just another Nazi War criminal. He was a metaphor for evil, for those monstrous crimes of which the Prime Minister spoke'' [21]. After the war, Mengele fled to South America and never to be heard from again. The combination of the images of ''Mengele'' and ''Auschwitz'' is explosive. It is the worst possible combination of evil, combustible enough to trigger a moral panic, the panic that caused the Mulroney government to convoke a Commission of Inquiry. Legislation was needed to ensure that justice must be done to war criminals, even if the crimes they committed were committed a long time ago and in a foreign land and even if these old war criminals never posed any danger to the public in Canada. This is the uniqueness of the war crimes legislation as it was initially designed, it was moral panic invoked by unrequited distant occurrences. Almost all moral panics are caused by contemporary events.[22] To a great extent, the Mengele panic is inexplicable because those alleged war criminals in Canada never appear to have posed any danger in Canada in the past or presently. This is unlike South America where moral panic associated with Nazi War Criminals could be justified because the escaped war criminals joined, supported or led repressive and genocidal regimes in South America. A study by Yossi Schwartz,[23] indicates that former Nazis found useful employment in South American regimes. In Chile for example, Walter Ruaff who was responsible for the death of 250,000 prisoners in the Ukraine during the war, was appointed by Augusto Pinochet as Chief Advisor for the Board investigating communist activities. Pinochet was later found to be a war criminal by the House of Lords in England and therefore extraditable[24]. Klaus Barbie, a notorious Nazi escaped to Bolivia via and with the assistance of the U.S. government. There, under his leadership the storm troopers were trained in secret camps at Sanda Cruez de la Sierra, later to take part in the military coup conducted by General Garcia Meza in July 1980. In Paraguay, Alfredo Stroessner, the military dictator of several decades, hosted Joseph Mengele, former Gestapo Chief Heinrich Muller Pavelic, the leader of Nazi Croatia among others. In Brazil, Alfred Boettcher who as an SS Officer served in Holland, and whom the Hague war crimes tribunal sentenced in Absentia, became a Director of the Atomic Board and a Coordinator of Nuclear Treaty with South Africa. South Africa was a state that systematically committed war crimes and crimes against humanity.[25] Thus war crimes legislation would be necessary to curtail the continuing danger posed by former Nazi war criminals[26]. There are no studies of what danger Nazi war criminals presently cause or caused since their alleged immigration to Canada. Irwin Cotler justified the enactment of war crimes legislation on the basis of five principles: (1) Fidelity to the rule of law; (2) respect for Canadian Citizenship; (3) Fidelity to our international obligations; (4) Fidelity to Holocaust remembrance, and (5) Fidelity to our children[27]. I need not elaborate on these principles. On the other hand calls for war crimes legislation has historically been dismissed as ''foreign baggage'' by Prime Minister Pierre Trudeau;[28] that it would not “be advisable to start having trials in Canada on actions that occurred in other nations'' according to Jean Chretien;[29] Robert Kaplan thought legislation was not necessary because it would ''upset people'';[30] the United Kingdom developed a program in 1948 which Canada followed that ''it was now necessary to dispose of the past'';[31] that it was pandering to ''Jewish revenge'' to deal with Nazi war criminals;[32] that the issue of Nazi war criminals was an ''ethnic quarrel between Jews and Ukrainians''[33] and that Canada should do what is in the interests of Canada. It was also argued that war crimes legislation was “an exercise in selective discrimination” because it appeared to deal only with Nazi war criminals and not others.[34]
Historic Opportunities and International Climate Shane Kelleher provides a quote from an Irish Minister of Justice, Nora Owen which is also apt to our study here. She stated that “there are moods and there are times when certain proposals will gain credence with the public. It is not a cause of politicians not doing it”.[35]. There have been historic opportunities and the international climate has been repeatedly ripe since at least 1942 for the enactment of war crimes legislation in Canada. In the 1940s alone the international community developed and engaged in war crimes legislation and prosecution of Nazi war criminals and also designed international human rights instruments and treaties in response to the atrocities of the Nazi-inspired war. The following were the most significant developments that could have influenced Canadian legislation on war criminals[36]: The Declaration on the Punishment for Crimes Committed during the War: St. James, 13 January 1942;
The Declaration on German Atrocities: Moscow, 30 October 1943;
The Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis: London, 8 August 1945;
United Nations General Assembly Resolution 3 (I): 13 February 1946;
United Nations General Assembly Resolution 170 (III): 31 October 1947.
Canada took the following position: Canada is not a party to the ''Declaration of Hitlerites'' [Sic} or the ''Regulations of the International Military Tribunal'' and is not bound by them. Canada views U.N. Resolutions as recommendations only and not binding legal obligations.[37]
The 1942 St. James' Declaration was issued by nine governments whose countries were occupied by Nazi Germany. Canada was an observer. The Declaration takes note of Nazi violence against civilian populations, declares as one of the principal war aims the punishment of those guilty for such crimes and expresses the international determination that judgements be passed and sentences be carried out. The 1943 Moscow Declaration is a declaration of policy on the part of the United Kingdom, the U.S.A. and the U.S.S.R., which provided for the return and trial of war criminals. The 1945 London Agreement was the basis for the Nuremberg trials and signed by the U.K., the U.S.A., the U.S.S.R. and France. Nineteen became members but Canada never did become a member. The United Nations resolutions called for the punishment of war criminals. Canada did seize the opportunity and enacted the War Crimes Act, which was limited to trying war criminals who had engaged in atrocities against Canadian personnel. These trials were conducted in Europe between 1945 and 1948. Thereafter, Canada abided by the advice of the United Kingdom in 1948 that ''it is now necessary to dispose of the past as soon as possible''. Minister of Justice Ramon Huatyshyn explained Canada's subsequent inactivity in the field of war criminals,''during the fifties and subsequently as individuals and nations moved to put the trauma and horror of the second world war behind them, the pursuit of war criminals became less of a priority in many countries''.[38] Did however individuals and nations move to put the trauma and horror behind? Or was it Canada and a few nations that did this for other reasons? Indeed the efforts to pursue war criminals waned in all the major western countries immediately after the war to compel the Commission of Inquiry to note that ''Canadian policy on war crimes during that long period was not worse than that of several Western countries which displayed an equal lack of interest''.39] The most prevalent activity took place from 1945 to 1949 and lessened or ceased in all major countries by 1952. Only socialist countries and the Federal Republic of Germany continued the effort against war criminals. The Socialist Countries included Poland, the German Democratic Republic and the Soviet Union. Paradoxically at the level of the International Community, especially at the United Nations, the rhetoric against war criminals never stopped as reflected by a phalanx of conventions and resolutions. In 1948, the United Nations passed the Convention on the Prevention and Punishment of the Crime of Genocide and in 1949 the Geneva Conventions relative to the Treatment of Prisoners of War and Relative to the Protection of Civilian persons in Time of War were adopted. They all provided for the prevention and punishment of war crimes. In 1966, after a lengthy gestation period, the UN adopted the International Covenant on Civil and Political Rights, which set the stage for passing retroactive laws to punish previous wrongs like war crimes. The European Convention on Human Rights was adopted in 1958 with similar retroactive legislative features. In 1968, the UN adopted the Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, which required state parties not to limit the period within which war criminals could be tried. And over the period, particularly from 1969 to 1973, the UN passed numerous resolutions in which the need was reiterated to punish those persons responsible for both war crimes and Crimes Against Humanity. The mood to punish war criminals has always been there. Canada never signed the convention on the Non-Applicability of Statutory Limitations and its objections during the preparations of the Civil and Political Rights Covenant led the commission to remark that ''Canada's position was not glorious at all''.[40] However, it cannot be stated that there was no atmosphere for the apprehension and punishment of war criminals. The international atmosphere was conductive but another ''panic'' had broken out. The spectre of communism.
In February 1946, it was made known to the unsuspecting public that a Russian spy ring had been operating in Ottawa and this was only exposed as a result of the defection of a Russian cipher clerk, Igor Gouzenko. The RCMP raided several homes in Ottawa on the morning of February 15th, 1946. The media headlines during and the following days, weeks, months and years were unrelenting. The panic of a Russian spy ring with the potential of stealing atomic secrets and spreading soviet communism resulted in the convocation of a Commission of Inquiry. Posters graced Parliament Hill, ''we want no Iron Curtain here''.[41] Hadn't it been for the enormity of the just concluded war in Europe, the cold war panic may have eclipsed the pursuit of war criminals. In many respects, in the long run, the cold war relegated the pursuit of war criminals to the back burner. The Commission of Inquiry into war criminals accepted the conclusion from a study: [42]. The central factor to consider in understanding why most countries have not sought out, prosecuted and punished Nazi war criminals to their full ability throughout the past forty years is the other issues have taken precedence (e.g., national rebuilding or the ''Cold War'') over bringing war criminals to justice which has been shifted, deliberately (as in France) or inadvertently to a lesser priority in their national agendas. The immediate post-war search for justice found and punish a considerable number of obvious big-name war criminals. This crusading spirit has been difficult to sustain for a long period of time especially as most of the remaining war criminals were low in rank and importance.
The panic over communism in the post war era was immediately reflected in the flurry of legislation, particularly in the field of Immigration law. After decades of dormancy, the Immigration Act was overhauled in 1952. Most of the changes dealt with preventing communists or perceived communists from entering Canada. The concern over the entry of suspected war criminals waned, as a matter of fact, suspected war criminals were preferable to communists. The security net against war criminals was lowered, while that against communists was heightened. Between 1945 and 1953, the Immigration Act as amended prohibited the following classes from entering Canada: d) persons guilty of crimes involving moral turpitude;
n) persons advocating the overthrow by force of the Government of Canada or the assassination of public officials;
o) persons affiliated with organizations which preach such doctrines;
p) enemy aliens or persons who have been alien enemies and who were or may be interned on or after the 11th day of November 1918;
q) persons guilty of espionage;
r) persons guilty of high treason or who assisted His Majesty's enemies in time of war.
In June 1953, spies and saboteurs were added. The prohibition of ''enemy aliens'' became synonymous with ''communists''. Remarkably in September 1950 prohibition against nationals of Germany was lifted but maintained against the nationals of Japan and others. The shift in concern for communists as against war criminals becomes meaningful if one considers that on October 14, 1946, the Allied Control Council in Directive Number 38 sought to track down the following individuals: 1) major offenders, 2) offenders (activists, militarists, and profiteers, 3) lesser offenders, 4) followers, 5) persons exonerated. Major offenders included ''war criminals''.[43] The following categories of individuals continued to be rejected by Canada in 1949; 1) member of SS or German Wehrmacht or a person found to bear mark of SS blood group (non-Germans);
2) member of Nazi party;
3) evasive and untruthful under interrogation;
4) Failure to produce recognizable and acceptable documents as to time of entry and residence in Germany;
5) false presentation or use of false or fictitious name.
Canada issued a series of Cabinet Directives in 1949, 1950, 1951 and 1952 classifying and reclassifying individuals who could be rejected for entry. A government therefore does not need specific legislation in order to address specific issues. Problems and issues can be and are addressable by bureaucratic methods and procedures. The Cabinet Directive of October 28th, 1949 for example stated that a visa is to be refused to ''Communists, members of the Nazi or Fascist parties or of any revolutionary organization, 'collaborators' and users of false or fictitious names or documents''.[44]. A circular by the Department of Citizenship and Immigration issued as No. 72A pursuant to Order-in-Council 4364 of September 14th, 1950 stated that ''German nationals could now be dealt with on the same basis as any other European nationality''.[45] “Membership of the Nazi Party will not in itself be a cause for exclusion.”[46] Members of the Nazi Party or Waffen SS who were assessed to pause security risks continued to be denied entry in Canada. But Canadian resolve was waning. There was a clear shift from concern for war criminals to concern for individuals who would cause a security threat to Canada. All individuals who came to Canada passed through a security check system, including members of the infamous Galicia Division, who were alleged to be war criminals. Members of the Galicia Division were actually Ukrainians who volunteered to serve in the German Army. Members of this Division were repatriated to the UK after the war. These members wanted to come to Canada and statements were made that they were acceptable. The Canadian Jewish Congress severely opposed the intention of the government to accept the members of the Galicia Division to settle in Canada. This group as individuals was thoroughly examined for security and criminality reasons and was found not to pause any security risks to Canada and was cleared of any commission of war crimes during their service in the German army. The Commission of Inquiry concluded that ''changes of war crimes against members of the Galicia Division have never been substantiated, either in 1950 when they were first preferred, or in 1984 when they were renewed, or before this commission.''[47] The Galicia Division joined the Nazis in order to fight against the Communists in Russia. After the war, members of this Division feared Communist persecution.[48]
Concern continued to accumulate, especially in Jewish circles that the security screening employed by Canada Immigration in the post-war era allowed Nazi war criminals to enter Canada. International episodes, like the kidnapping of Adolf Eichmann from Argentina by Israel in 1961 and his trial, conviction and execution and other events, would occasionally bring renewed interest and coverage of the alleged war criminals in Canada. Reports that Josef Mengele had applied to enter Canada in the early 1960s also revived interest and so did the intermittent requests of East European countries for the extradition of alleged war criminals resident in Canada. International conventions and UN resolutions also ensured that the topic of war criminals would not die in Canada or in other major countries. The Haralds Puntulis case exemplified the inactivity of the Canadian government in assisting with the apprehension of known war criminals in Canada. Puntulis was convicted in absentia in Latvia in 1965 for treason. But he was already in Canada, having entered Canada in 1948. The Soviet Union tracked him down to Canada and asked for his extradition in 1965. Canada refused on the grounds that the countries did not share an extradition treaty. Canada made no effort to initiate an extradition treaty with the Soviet Union in order to ensure that Puntulis would be extradited. Nor did Canada initiate domestic legislation so that Puntulis could be tried from within Canada. Puntulis died of natural causes in Toronto in 1982, ''undisturbed by a Canadian government that preferred to turn the other cheek to the allegations against him''. [49] However, when Germany made a request for the extradition of war criminal Hemult Rauca in 1973, Canada could not refuse the request on account of lack of an Extradition Treaty with Germany - there was one. The only problem was that there was no documentation with which Rauca could be apprehended. He was eventually arrested for Extradition in June 1982, almost ten years after Germany had requested for his extradition. The Rauca case aroused a lot of interest and possibilities as to how to deal finally with War Criminals in Canada.[50] By the time Rauca was arrested and tried for extradition, the political and legal climate had begun to somewhat shift and intensify. After 1982, the political and legal pressure to do something about war criminals shifted completely. The following table shows the reports on numbers from various individuals of war criminals in Canada. The issue could no longer be ducked by Canada.
Statements in chronological order[51]
Alleged number of war Criminals living in Canada
1971, 19 May Simon Wiesenthal Toronto Star Several hundred 1975, 26 Dec. Unidentified groups Montreal Gazette Over 50 1976, 1 Dec. Michael Hanusiak Toronto Star At least 50 1977, 11 Nov. Ian Adams Weekend Magazine 800 1979, 6 March Robert Kaplan House of Commons Over one dozen 1979, 6 March Maurice Dupras House of Commons Some 15 1979, 25 March Olivia Ward Toronto Star Over 1,000 1980, 28 April Meir Halevi Globe and Mail 200 1981, January Interdepartmental Report to Government 500-100 Committee 1981, 24 Feb. Sabina Citron Globe and Mail 1,000 1981, 29 May Abraham Cooper Regina Leader-Post 1,000 1981, 13 July Irwin Cotler Ottawa Citizen At least 100 1981, 15 Sept. Adalbert Rueckerl Vancouver Sun 500-1,000 1982, 18 June David Matas Toronto Star 50-60 1982, 12 Oct. Charles Kremer Windsor Star Over 2,000 1982, 6 Nov. Dept. Of Justice Toronto Star Handful 1982, 6 Nov. RCMP Toronto Star 80-100 1982, 6 Nov. Irwin Cotler Toronto Star 75-100 1983, 13 March Robert Kaplan Toronto Sun Over 100 1983, 13 April Irwin Cotler La Presse Maybe 1,000 1983, 5 July Jewish Defence Globe and Mail Maybe 1,000 League 1983, 21 July Adalbert Rueckerl Globe and Mail 1,000 1983, 21 Nov. Solicitor General Globe and Mail 100 Department 1983, 21 Nov. Edward Greenspan Globe and Mail 2,000 1984, 24 Jan. Sol Littman London Free Press 2,000 1984, 8 Nov. Sol Littman Toronto Star 3,000 1985, 16 Jan. Simon Adler London Free Press 1,000 1985, 25 Jan. Sol Littman Toronto Star 3,000 1985, 7 Feb. John C. Crosbie House of Commons Relatively few 1985, 23 August Sol Littman Report to Solicitor 2-3,000 General 1986, 16 May Simon Wiesenthal New York Daily 6,000
Several events and issues towards the end of the 1970s and early 1980s conspired to drive the issue of Nazi war criminals in Canada to the forefront of the political agenda despite governmental reluctance. The events and issues are not presented in any order of importance or chronology. The first event was that the German Statute of Limitations came to an end, which meant an end to further war crimes prosecutions in Germany. A world-wide protest convinced West Germany to extend its deadline indefinitely, and Canada's ambassador to West Germany spoke vociferously on the issue.[52] The second event was the Elizabeth Holtzman Amendment in the House of Representatives in the U.S.A., which promised to strip war criminals of their U.S. citizenship and to be extradited or deported to various countries. A number of people were denaturalized and extradited or deported, including to Israel. The U.S. developments energized the political debate in Canada to do the same. The U.S. established a special unit within the Department of Justice with a single mission: to track down and investigate alleged Nazi war criminals in the United States and where evidence warranted it, to bring actions to expel them. The third event was that Robert Kaplan, of Jewish background, became the Solicitor-General of Canada during the second Trudeau government that was re-elected in 1980. Robert Kaplan had been intensely lobbied by Jewish individuals and organizations, and had brought a private member's bill in 1978 to do something about Nazi war criminals. That bill did not pass. Now in 1980, he was Solicitor General, in charge of the R.C.M.P., which are responsible for investigation of cross-border and International crimes. According to Sol Littman, ''as a representative of a Toronto riding whose constituency is one-third Jewish and includes many Holocaust survivors, Kaplan found some spiritual ease and considerable political advantage in criticizing the government for allowing Canada to be a haven for war criminals.'' Kaplan became the epi-centre of activity for Canada to do something about war criminals.[53] However, despite Kaplan's strong personal commitment to taking measures against Nazi war criminals, and a surge of optimism on the part of the public, the Trudeau cabinet remained indifferent.[54] It was left to the Brian Mulroney government, which assumed office in 1984 to do something about Nazi War Criminals. The forth event was the debates surrounding the repatriation of the Canadian constitution to Canada. An amendment was passed to the Charter of Rights and Freedoms which facilitated retroactive legislation to deal with those guilty of crimes against humanity. The Criminal Code was accordingly amended to provide for the prosecution of war criminals.
As all chairs of Commissions of Inquiry, the method with which Justice Jules Deschênes was chosen is not known. It is the prerogative of the Prime Minister. There are no confirmation hearings or special legislative measures taken to appoint such a person. Justice Deschênes just received a telephone call, inviting him to head such a commission.[55] The Commission was invited to advise the Governor-in-Council as to ''what further action might be taken in Canada to bring to justice such alleged war criminals who might be residing within Canada, including recommendations as to what legal means are now available to bring to justice any such person in Canada or whether and what legislation might be adopted by the Parliament of Canada to ensure that war criminals are brought to justice and made to answer for their crimes.'' The setting up of the Deschênes Commission of Inquiry into war crimes is an example of a successful case of interest group or pressure group influence on governmental formation of significant legislative and policy changes. The most significant interest or pressure group that forced the government to embark on the war crimes Inquiry was the Canadian Jewish Congress. Behind the Canadian Jewish Congress was Simon Wiesenthal, a Nazi hunter since the end of the war. On July 4, 1950, Mr. Samuel Bronfman, the then National President of the Canadian Jewish Congress (CJC) sent a telegram to the Minister of Citizenship and Immigration protesting the government's decision to admit members of the 14th Grenadier Waffen SS Division (Galicia), (Halychyyna SS Division) to Canada. The government, in deference to Mr. Bronfman and the members of the CJC, delayed approval until further investigations could take place. Requested to supply further information, the CJC submitted a list of 94 Ukrainian names accompanied by a brief description of their alleged offences. But the government did not act. Instead the government accepted the Galacia Division. Lists of names forwarded by Simon Wiesenthal had consistently gone astray or remained unacknowledged. According to Littman,[56] the attempt to identify persons who had allegedly committed war crimes was scoffed at throughout the 1950s, 1960s and 1970s. The RCMP, according to evidence presented to the Commission Enquiry on War Criminals in Canada (Deschênes Commission), did not begin systematic investigation of war criminals until 1982. From 1945 to 1962, the RCMP had no policy of any kind on the identification and apprehension of war criminals. Therefore, it did little if anything in this field. From 1962 to 1982, the force's policy was negative, namely that it had no responsibility to investigate those accused of war crimes. As a consequence, it did even less than before. Had Robert Kaplan not been appointed Solicitor General in 1980, perhaps the issue of war criminals would have lain dormant a lot longer. Kaplan, in a February 1983 interview, said that the RCMP was examining a list of approximately 125 names to determine whether there were any cases that would lend themselves to the denaturalization and deportation procedures employed by the Office of Special Investigations of the U.S. Justice Department. The results, he confided, were not very promising. The government's ineptitude or, indeed, its reluctance to pursue the war crimes issue is particularly evident in the 1979 correspondence between the Canadian Jewish Congress and the Justice Department. That year, the Congress forwarded a short list of twelve alleged war criminals to John Roberts, M.P. Roberts, in turn, passed on the list to then Solicitor General Jean-Jacques Blais, asking that the list be presented to the RCMP for investigation. The RCMP apparently checked the names against the Citizenship Registry to determine whether these men were, in fact living in Canada. The reply was that the Citizenship Department had been unable to find any of them. Yet, it was well-known that most, if not all the persons on the list were in Canada and there should have been no difficulty in locating them. It is therefore not surprising that the Canadian Jewish Congress was one of the four pressure groups that were given standing to appear and make representations before the Commission. The others were the Brotherhood of veterans of the 1st Division of the Ukrainian National Army in Canada; League for Human Rights of B'nai Brith Canada and the Ukrainian Canadian Committee. These organizations were represented by very powerful and articulate lawyerly ''organic intellectuals'' to use a gramscian term. The Brotherhood was represented by Fraser Berrill, Y.R. Botiuk and Clay Powell. The Canadian Jewish Congress was represented by Irwin Cotler, Charles Dalfen, Joseph Magnet, Morris Manning and M.J. Silverstone. The League for Human Rights was represented by Susan Charendoff, Jules Kronis, Marvin Kurz, Israel Ludwig, David Matas and Bert Raphael. The Ukrainian Canadian Committee was represented by Sean Dumphy and John Sopinka, who was later appointed to the Supreme Court of Canada. All counsel were highly accomplished lawyers or professors of law. Other groups that were not granted standing were also allowed to participate in public hearings. They were also represented by highly accomplished lawyers and professors. The Government of Canada was represented by Ian Binnie, who was later appointed to the Supreme Court of Canada, Judith McCann and I.G. Whitehall. The Commission also appointed a working group of eight professors and practitioners across Canada to report to the Commission on legal problems. Sharon Williams and Ronald Bryk were asked to advise on legal questions concerning denaturalization and deportation of war criminals. Jacques Bellemare and John Laskin (who later became a Judge) were asked to study whether there exists the possibility of criminal prosecutions in Canada against war criminals under present legislation, by virtue of some international instrument or otherwise. Neil McKelvey and George Neuspiel were asked to study whether there can exist a legal basis for request for extradition when there is no treaty between Canada and the requesting state. Gowan Guest and Michel Proulx were asked to study what legislation, if any, should be adopted to allow for prosecution of Nazi war criminals in Canada. The Commission travelled across the country conducing hearings and collecting evidence. Many witnesses from diverse groups and backgrounds gave oral testimony. Counsel made oral as well as written submissions. The Commission also benefited from extensive commissioned studies. The report is perhaps the most comprehensive report on war criminals anywhere.
After the Commission submitted its report, a special parliamentary committee debated the draft government Bill. The end product is the amendments to Section 7 of the Criminal Code popularly known as the ''war crimes legislation'' which defines what a ''war crime'' and a ''crime against humanity'' is. Subsection 7 (3.76) reads in part: ''crime against humanity'' means murder, extermination, enslavement, deportation, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group of persons, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission, and that, at that time and in that place, constitutes a contravention of customary international law or conventional international law or is criminal according to the general principles of law recognized by the community of nations;
''war crime'' means an act or omission that is committed during an international armed conflict, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission, and that, at that time and in that place, constitutes a contravention of the customary international law or conventional international law applicable in international armed conflicts.
Subsection 7 (3.71) confers jurisdiction on Canada over the person if,
a) at the time of the act or omission, I) that person is a Canadian citizen or is employed by Canada in a civilian or military capacity,
ii) that person is a citizen of, or is employed in a civilian or military capacity by, a state that is engaged in an armed conflict; or
iii) the victim of the act or omission is a Canadian citizen or a citizen of a state that is allied with Canada in an armed conflict; or
b) at the time of the act or omission, Canada could, in conformity with international law, exercise jurisdiction over the person with respect to the act or omission on the basis of the person's presence in Canada, and subsequent to the time of the act or omission the person is present in Canada.
Once legislation was passed, the political process moved into judicial hands. A forty year political struggle did not have auspicious beginnings in the judicial system. The Deschênes Commission, including many counsel who appeared before it, favoured prosecution in Canada, rather than denaturalization, deportation, and extradition. The government itself took initially no steps to follow up the recommendations of the Deschênes Report to improve the Canadian processes of denaturalization, deportation and extradition. Elizabeth Holtzman[57] of the USA had feared that the decision to prosecute Nazi war criminals in Canada for their crimes instead of deporting them while having a theoretical appeal, might actually be counterproductive. Holtzman went on to explain: In choosing not to deport but to prosecute, the original wrong may be compounded. First, there is no basis for assuming - as the policy of a ''Canadian solution'' does - that Canada's system of justice is better than that, say, in France, Holland, or West Germany. Second, there is no compelling reason to deny the victims of the Holocaust the right to try Nazi war criminals. The evidence and the witnesses are near at hand, and the legacy of the Holocaust is part of the victimized nations' consciousness. Third, in cases in which there is enough evidence for extradition or deportation but not enough to warrant prosecution, the made-in-Canada solution would preclude deportation and the Nazi war criminals would remain in Canada. In this category of cases, the Canadian solution would provide no solution at all, and the continued presence of these Nazi war criminals in your country would make a mockery of your efforts. Finally, the Canadian solution presumes that juries will be able to properly assess the full significance of Nazi war crimes. But if the experience in the United States is any example, there are many people, particularly younger people, who are badly informed about the Second World War and ignorant of the Holocaust. For some jurors, the war crimes may be too remote in time and place to have the full weight they deserve. On the other hand, the defendant's connections to Canada might seem more vivid and real in contrast. In a way, then, the cards may be stacked for acquittal, and juries may acquit even when there is full evidence of guilt.[58]
Indeed, the very first case of war crimes prosecution ended up negatively for the government. The Supreme Court of Canada set such a high standard for the conviction of war criminals and criminals against humanity that it will be virtually impossible to prosecute and convict a war criminal or criminal against humanity stemming from the Nazi and subsequent eras.[59] In Finta,[60] the Supreme Court ruled that the prosecution must prove beyond a reasonable doubt that the accused had mens rea to commit a war crime and crime against humanity and that obedience to superior orders was a defense, even though the war crimes legislation removed the defense of obedience to superior orders. Denaturalization and deportation has also proved elusive at the present time. For example, in the case of Dueck,[61] the Federal Court ruled that people who came after the Second World War were subjected to security checks and were asked questions pertinent to whether they were security risks to Canada and did not obtain Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances. Such interpretation of the scheme of legislation places a high burden for the government to climb.
After a forty-year political struggle, the Canadian Jewish Congress and allied organizations and individuals forced the government to bring in war crimes legislation for the prosecution of past and future war criminals in Canada. This is an example of successful, albeit lengthy struggle by a pressure group to induce a government to bring in specific legislation to address that group's specific concerns. There are currently numerous groups pressuring the government to do the same. Current examples include victims' rights groups like Mothers Against Drunk Driving (M.A.D.D.); CAVEAT and others. Other groups have pressured the government not for legislation but for compensation. Japanese Canadians have been compensated after a forty-five year struggle.[62] Japanese Canadians were interned and some deported during the Second World War. Ukrainians and Chinese who suffered past injustices have not yet convinced the government to compensate them. However, what the political process achieves, does not necessarily lead to or mean judicial success as well. The failures of the war crimes legislation to achieve the original objectives so far, is a case in point. The dynamics of criminal and immigration legislations are politically driven with significant racist over and undertones. The strength of the lobbying process determines to some extent whether the desired results will be achieved. For the immediate past, one needs only to look at the reception of the Commission on Proceedings Involving Guy Paul Morin [63] and the Report of the Commission on Systemic Racism in the Ontario Criminal Justice System [64] . It is already known that there have been direct impact on the government, judiciary, defence, crown counsel, and media and so on of the two Commission of inquiry. The government has initiated reforms pertaining to several recommendations of the Guy Paul Morin Inquiry. The judiciary have specifically cited the Guy Paul Morin Inquiry in their judgments. Defence Counsel as represented by the Criminal Lawyers' Association have organized conferences and panels specifically geared to addressing issues raised by the Guy Paul Morin Inquiry. The Crown has been conducting an inventory of how to do things differently as a result of the Guy Paul Morin recommendations. The public and the media have reacted positively to the Guy Paul Morin Inquiry. The reverse is the case for the Commission on Systemic Racism. The government has entirely ignored the report and recommendations of the Commission. The judiciary has not recommended or cited the report and recommendations to any great extent. Defence counsel have not organized conferences on the report or urged judges to take into account the findings of the Commission. Crown counsels have not conducted their business any differently. The public and the media have on the whole been hostile to the report and recommendations. There are significant reforms in the criminal law engendered by the Guy Paul Morin e.g. in the law of evidence. [65] What are the reasons for the difference in the reactions to and impact of, the two reports? Is the explanation based on the nature of the two Commissions - one based on an individual case while the other dealt with an amorphous group? Is the explanation based on the fact that one dealt with strictly criminal law as understood in a liberal democracy and one dealt with racial underpinnings to criminal law and therefore a subject difficult to handle by the majority? Is the explanation that the stakeholders in the system were affected and offended by the miscarriage of justice against Guy Paul Morin and they could relate to it, while they are not directly affected or offended by the maladministration of justice because they are not Black? Is it because of the nature and issues of the different commissions? Is it because of political reasons? Is responding to Morin politically safer than to respond and admit to the existence of racism in the criminal justice system? Is it easier to implement the recommendations in Morin than to implement the recommendations on racism? Is it because Blacks are marginal to the political process in Ontario and Canada? Is it because racism is historically endemic in Ontario and on one really wants to address it? Are the government and the other stakeholders racially insensitive? Is it because a respected jurist conducted the Guy Paul Morin Inquiry with established lawyers as commission counsel and the Commission on Systemic Racism was not? Is it because of the imbalance in power, strength and numbers of Blacks as government officials, judges, lawyers, crown counsel and media personalities that explains why the Commission on Systemic Racism was not ventilated? Is it the style of advocacy that got one and not the other commission to be taken seriously? Is it a combination of the above factors and others? The government of Canada has been silent on the protest by African Canadians and others against the danger to the public law which is shown to be disproportionately affecting African-Canadians. The following chapters discuss the treatment of non-citizens in immigration law in comparison to the treatment of Canadian citizens and non-citizens under the Criminal Code.
[1] Ralph Blumenthal, New York Times, Jan. 23, 1985, A4. [2] See Infra notes 13 and 15. [3] Commission of Inquiry on War Criminals (Ottawa, 1996)(The Jules Deschênes Report). [4] Ibid, p. 17. [5] Working paper 37, (Ottawa, 1984). [6] Ibid, p. 83. [7] S.C. 1946, C. 73. [8] R.S.C. 1970, C. G-3. [9] Note 3, Supra, pp. 67-82. [10] Quoted in Irwin Cotler, ''Response to the Deschênes Commission of Inquiry on War Criminals'' in Cotler (ed.) Nuremberg: Forty Years Later (Kingston: McGill-Queen's Printer, 1987) p. 74. [11] Ramon Hnatyshyn, ''Domesticating the Nuremberg Principles: The Canadian ''War Crimes'' Legislation'' in Cotler, ibid, p. 35. [12] Incorporated in Section 7 of the Criminal Code of Canada. [13] Stanley Cohen, Folk Devils and Moral Panics: The Creation of the Mods and Rockers, (London: Basil Blackwell, 1972, 1990 Edition). [14] Ibid, p. 9. [15] Stuart Hall et al. Policing The Crisis: Mugging, The State, and Law and Order, (London: Methuen, 1978, 1979 Edition). [16] Ibid, p. 16. [17] Deschênes Report, p. 68. [18] Ibid. [19] Ibid, p. 76. [20] Ibid, p. 68. [21] Cotler, Supra, note 10, p. 74. [22] Note 13 and 15, Supra. [23] ''Nazi War Criminals and The Death Penalty'' in Munyonzwe Hamalengwa, (ed.) Political Halley's Comet, The Death Penalty in Global Comparative Perspective (Forthcoming), pp. 222-234. [24] Exparte Pinochet (unreported) House of Lords, March 1999. [25] See Munyonzwe Hamalengwa, ''The Death Penalty in the Context of the Commission of the Crime of Apartheid'' in Hamalengwa (ed.) note 23 supra and ''Prospects for the Prosecution of Apartheid Criminals in Canada'' unpublished paper prepared for Sharon Williams' class, Osgoode Hall Law School, 1988. [26] Schwartz, note 23, supra. [27] Note 10, supra, p. 86. [28] Svend Robinson, ''Nuremberg Forty Years Later: Bringing War's Criminals to Justice In Our Time'', in Cotler, note 10, supra, p. 48. [29] Ibid. [30] Ibid. [31] Deschênes Report, p. 27. [32] Cotler, note 10, supra, p. 75. [33] Ibid. [34] Ibid, p. 77. [35] Shane Kelleher, ''Moral Panic: Crisis in Civil Liberty'' paper prepared for a course for LLM, Osgoode Hall Law School, contained in Criminal Law course materials by Professor Hay and Beare 1999, p. 579. [36] See Deschênes Report, p. 101. [37] Ibid. [38] Supra, note 11, p. 46. [39] Deschênes Report, p. 33. [40] Deschênes Report, p. 143. [41] See Reg Whitaker, Cold War Canada. The Making of a National Insecurity State, 1945 - 1957, (Toronto: University of Toronto Press, 1994) cover and pp. 27-81. [42] Deschênes Report, pp. 32-33. [43] Deschênes Report, p. 181. [44] Ibid, p. 182. [45] Ibid. [46] Ibid. [47] Ibid, p. 261. [48] John Sopinka, Submission to the Deschênes Commission on behalf of the Ukrainian Canadian Committee. May 5, 1986. [49] On the Puntulis case and Canada's general disinterest, see David Matas and Susan Charendoff, Justice Delayed: Nazi War Criminals in Canada (Toronto: Summerhill Press, 1987), p. 143. [50] Federal Republic of Germany v. Rauca (1982), 41 O.R. (2nd) 225. [51] Reprinted from Deschênes Report pp. 246-7. [52] See Matas and Charendoff, note 49, supra, p. 79. [53] Sol Littman, War Criminal on Trial: Rauca of Kaunas (Toronto: Key Porter Books, 2nd ed. 1998), pp. 140-142. [54] Matas and Charendoff, note 49, supra, p. 80. [55] Jules Deschênes, ''Toward International Criminal Justice'' (1994)(2-3) Criminal Law For UN, 249 at pp. 253-254. [56] Litman, note 53, Supra. [57] Holtzman, ''Nuremberg and its Legacy'', in Cotler, note 10, supra, p. 32. [58] Ibid. [59] Raman Venkata, ''The Future of the Nuremberg Promise'' (1994) 28 C.R. (4th) 392. [60] R.V. Finta (1994), 28 C.R. (4th) 265. [61] MCI v. Dueck, T-938-95, Dec. 21, 1998. [62] Roy Miki and Cassandra Kobayashi, Justice In Our Time: The Japanese Canadian Redress Settlement (Vancouver et al: Talon Books, 1991). [63] (Toronto: Queen's Printer, 1998). [64] (Toronto: Queen's Printer, 1995). [65] See for example, Dianne L. Martin, ''When the Rules Are Wrong: Wrongful Convictions and the Rules of Evidence'' Paper presented to the Annual Conference of the Criminal Lawyers' Association, Toronto, November, 1999.
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The Death Penalty in India There is a section in the Penal Code - S.302 which says that whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to a fine. The handiwork of Lord Macaulay, (who was only thirty-five when he drafted it), the Indian Penal Code is a statute of Victorian vintage, - of the year 1860. With the advent of the Constitution in 1950 and the Chapter on Fundamental Rights, there have been frequent attempts to do away with the death penalty - at first, by legislation, later through the intervention of Courts. The attempts have not met with success.
First, a Bill to abolish capital punishment was introduced in the Lok Sabha (the House of the People) in 1956 - it was rejected. In 1961, a similar resolution was moved in the Rajya Sabha (the Upper House) but negatived by a voice vote. The next year a resolution for its abolition was once again discussed in the Lok Sabha. It was withdrawn only after Government assured the House that a decision would be taken after a detailed consideration of the matter. The question was then referred to the Law Commission of India (comprising judges and jurists). They submitted their report in 1967. After collecting as much available material as possible and assessing the views expressed by a cross-section of people, by abolitionists and by anti-abolitionists, the Indian Law Commission came to the conclusion that having regard to conditions in India, it could not "risk the experiment of abolishing capital punishment" - capital punishment, said this expert body, "should be retained in the present state of the country".
Being thwarted in the legislative field, the attempt of the abolitionists then shifted to the Courts. In 1973 - inspired by the opinion of some of the judges of the Supreme Court
* Fari S. Nariman is an advocate in the Supreme Court of India
of the United States (in Furman's case) an appeal was made to the Supreme Court of India to rule the death penalty unconstitutional. It failed. In Jagmohan Singh Vs. State of Uttar Pradesh (AIR 1973 S.C. 947), it was argued that the right to life was basic to the seven freedoms mentioned in Article 19,2 and that no law could deprive a citizen of his life unless it was reasonable and in the public interest; capital punishment for the crime of murder was unreasonable and was not justified in public interest. A Constitution Bench of five Judges presided over by Chief justice Sikri unanimously rejected this plea. The Court relied not only on the findings of the Law Commission but on the plain language of Article 21 of the Constitution which provides that no person shall be deprived of his life or liberty except in accordance with procedure established by law. The implication, said the Judges, was very clear - deprivation of life was constitutionally permissible in India if it was done according to procedure established by law. They found it difficult to hold that capital punishment as such was unreasonable or not required in the public interest.
But there was another and more serious argument advanced in Jagmohan Singh Vs. State of Uttar Pradesh (AIR 1973 S.C. 947). It was that the discretion conferred by section 302 of the Indian Penal Code to punish murder with death or life imprisonment was entirely unguided - in what cases should the judge sentence the accused to death and when should he impose the lesser sentence of life imprisonment? The statute offered no guide - and this unguided discretion must necessarily result in discrimination violating of Article 14.3 This contention was also negatived. The very wide discretion in the matter of punishment was to be found in all the offences prescribed by the Penal Code, said the Court. It has its origin in the impossibility of laying down standards. Since no two cases are alike, sentencing norms could not be statutorily prescribed. They had to be left to the discretionary judgement of the judge, to be exercised on what the court called "well recognized principles". This part of the judgement of the Court in Jagmohan Singh's case, albeit of five judges, has not convinced Indian penologists - it has rankled with some of the later justices of the Supreme Court.
In the year in which the decision in Jagmohan Singh's Case was handed down, the new Criminal Procedure Code, 1973, was enacted, replacing the provisions of the Criminal Procedure Code 1898. One of its provisions required that where an offence was punishable with death or in the alternative with imprisonment for life, the judgement should state the reasons for the sentence awarded and where the sentence awarded was a sentence of death, the judgement should state "the special reasons" for such sentence.4 Since 1973, the statutory rule is that punishment for murder is life imprisonment, death sentence being the exception. What are then these "special reasons" for imposing a death sentence? They are left undefined. Till now (and this was the traditional view) the Courts always looked to the nature of the crime - how heinous it was, how brutal or cold blooded the murder. But in 1979, in a batch of appeals, a Bench of three judges of the Supreme Court handed down a decision - a majority judgement (2:1), Mr. justice Krishna Lyer (the abolitionist judge) speaking for the majority. This judgement in Rajendra Prasad's Case (AIR 1979 S.C. 916) broke new ground. The "special reasons", said the majority, related not to the crime, but the criminal. Death is no longer the punishment for a brutal murder, if there is a reasonable prospect of reformation of the criminal. But Mr. justice A.P. Sen (the minority view), was sharply critical of this thesis. In one of the cases in the batch dealt with by the Court -a case from Kerala, a married man infatuated by the charms of a village girl brutally murdered his innocent wife and his two children when they were asleep. "If the death sentence was not to be awarded in a case like this", moaned Mr. Justice Sen, "I do not see the type of offence which calls for a death sentence". But he spoke only for himself - it is no secret, however, that he echoed the sentiments of some of the other members of the Supreme Court who had not participated in the decision. A few weeks after the judgment in Rajendra Prasad's case, the ratio was followed by another Bench of two judges. But when, a few months later another case (a case of a triple murder) came up before the Court - before the same Bench which decided Rajendra Prasad's case - justice Sen again dissented. The majority view in Rajendra Prasad's Case, he said, was not a precedent. In his opinion a decision on a question of sentence depending upon the facts and circumstances of a case could never be regarded as a binding precedent. What then was the law on sentencing in murder cases? Since judges spoke in different voices, and affirmed their respective views so strongly the question whether the death penalty should be imposed having regard to the nature of the crime or only if the criminal was beyond the pale of redemption, however dastardly the crime, stood referred to a larger Bench - again of five judges - so that the law could be declared with certainty. There was also another fall out from Rajendra Prasad's case. The majority doubted the correctness of Jagmohan Singh's decision on the constitutional question. Was not the death penalty arbitrary and discriminatory, they queried? and cited text-books and statistics in support. Well - whenever the decision of a larger Bench is doubted by a smaller Bench, litigants are quick to see the green light - an application was filed for reconsidering the decision in Jagmohan Singh's Case and taking a fresh look at the Constitutional validity of capital punishment. It was granted. Again a Bench of five judges (in Bachan Singh's Case (AIR 1980 S.C. 898) went through the motions and heard arguments afresh on the constitutional validity of the death penalty. It once again affirmed the decision in Jagmohan - not unanimously, but by a majority (4:1): Mr. justice Bhagwati (later Chief Justice of India) dissenting (the dissenting judgment. is reported in AIR 1982 S.C. 1325).
Why are Justices even of the highest Court divided in their views on this vexed question?
The truth is that the death penalty is not so much a legal or a constitutional problem, as a sociological one. It evokes divergent responses in different people - and judges being human are no exception. It even cuts across party lines. Politicians everywhere are always divided on this issue. There are the abolitionists, and (for want of a better word) the retentionists. In Britain where capital punishment stood abolished, a resolution was proposed in the House of Commons in July 1983 for restoring it (at least for terrorists and for murderers of police officers). The resolution was lost, but it was a close vote 362:243. The Prime Minister Mrs. Thatcher voted for restoration of the death penalty, the Conservative Party Home Secretary Mr. Whitelaw voted against it; James Calaghan the former Labour Prime Minister and the Leader of the Opposition voted with Mr. Whitelaw. That venerated British historian, Arthur Bryant wrote in indignation:
“I believe as a historian that this decision (of Parliament) is against the permanent lesson of history which points strongly to the deterrent effect in all ages of the death penalty on law breakers of habitual violence who, in its absence, are ready to resort to murder....... The sole justification for the death penalty is not to punish murderers but to prevent murder.''
In my country there has always been a cleavage of opinion. For some, it has been a matter of conscience. I remember my senior leader of the Bombay Bar (Sir Jameshedji Kanga) telling us in the fifties about a senior District Judge Mr. Khareghat who was due to be elevated to the Bombay High Court Bench. He declined the honour on the ground that he would never be a party to the death sentence. He would rather not be a High Court Judge. In those days the capital sentence could only be imposed by a judge of the High Court.
The abolitionists have a strong lobby. Recent events in various countries (especially in the developing world) have driven many to the conclusion that murder will never cease to be an instrument of politics until the execution even of proved murderers is regarded as immoral and wrong. In the world of today there are fewer and fewer men condemned to death for murder, and more and more executed for political views. As long as death remains a permissible instrument of Government, those in power will always justify its use. Besides, (and this is a particularly pertinent point) the hangman's noose ends the search for truth - what if the judge is wrong? The haunting question plagues our consciences. Judgements of Courts can always be recalled and reviewed; execution of sentences of death, never.
But then there is the other side of the coin. In our obsessive concern for the criminal and his reformation, we are often apt to forget the victim and those that the criminal’s act have left destitute. An eye for an eye and a tooth for a tooth, hallowed by Biblical injunction does sound just to those who are irretrievably hurt. It is sanctified in boh religious and secular legal tradition. In England the hate engendered by the crime is assuaged by generous awards of compensation by the State. The Government in U.K. funds in every year large amounts and places them at the disposal of an administrative agency - the Criminal Injuries Compensation Board - to be paid over to the victims of violent crime. Where this system of social welfare is lacking (as in India) there is a feeling that if the victim's family cannot be generously compensated for the loss, they should have their revenge at least through the courts - by invoking the awful majesty of the law. In August 1986, the New York Times in an editorial said: "the sentence of death is an expression of vengeance and it is still barbaric".
Both parts of this condemnation are applicable to India. Vengeful, yes. But on the plea that it was barbaric the Supreme Court of India has held in Bachan Singh that death by hanging is not an "unreasonable, cruel or unusual punishment". Roma Locuta est causa finita est (Rome has spoken the cause is ended). At least for the present.
Should revenge be the basis of a civilized system of criminal jurisprudence? Another Biblical quotation mocks the earlier one 'Revenge is mine", saith the lord, "I will revenge". But all this is theology, not law.
The main plank of the retentionists is that the death sentence has a deterrent effect - not by the fear of death but exciting in the community a deep feeling of abhorrence for the crime of murder. I remember in 1973 when Jagmohan Singh's case was being argued, Chief justice Sikri said (in the course of arguments), that he was certain that if the death penalty were abolished, entire villages in the Punjab would be wiped out in a wave of crime. He spoke with the voice of experience having been the Advocate-General of that State for many years. Other justices from this and other States have expressed similar views. But contrary views are also held and equally emphatically expressed, none more persuasively that by a Professor of Law at Stanford University. He summed up the creed of the abolitionist in a trenchant searching question: “Do we really need to kill people in order to teach people that killing people is wrong?”
In the end, the life-and-death question cannot be resolved by arguments - neither the abolitionists nor the retentionists will convince one another. But this easy escapist view is not for Courts. The Courts - especially the highest Court - must declare the law with certainty. The Supreme Court of India has declared the law: at first (in 1973) unanimously, later (in 1980) with less certainty, one of its senior judges in a powerful dissent harkening to "the brooding spirit of the future". The dissent has helped. In a judgement of the Constitution Bench of the Supreme Court on 7th April, 1983 (Mithu Vs. State of Punjab (AIR 1983 SC 473) the Court struck down Sec. 303 of the Indian Penal Code which provided a mandatory death sentence for the crime of murder committed by a life convict - "whoever being under sentence of imprisonment for life commits murder shall be punished with death".
The Court held that Sec. 303 violated the Guarantee of Equality contained in Art. 14 of the Constitution, as also the right conferred by Art. 21. - "No person shall be deprived of his life and personal liberty except according to procedure established by law".
The Section was originally conceived to discourage assaults by life convicts on prison staff, but the language chosen far exceeded the intent. The Section assumed that life convicts were a dangerous breed of humanity and condemned them as a class: the assumption and condemnation was not supported by any scientific data.
There are many in my country who would like to see the Supreme Court of the future echo the optimistic sentiments of Justice William Brennan of the U.S. Supreme Court (sentiments expressed in September 1986):
“I believe that a majority of the U.S. Supreme Court will one day accept that when the State punishes with death it denies the humanity and dignity of the victim...... That will be a great day for our country and our Court.”
Till then, we in India must live with the death penalty the highest Court assuaging its collective conscience with the assurance that the sentence would be imposed only “in the rarest of rare cases.”
Notes
1. Senior Advocate, Supreme Court of India; Vice President, Bar Association of India; Member, International Commission of Jurists.
2. Article 19 lists the seven freedoms in these words: All citizens shall have the right:
a) to freedom of speech and expression; b) to assemble peaceably and without arms; c) to form associations or unions; d) to move freely throughout the territory of India; e) to reside and settle in any part of the territory of India; 11(and)
f) right to acquire hold and dispose of property g) to practise any profession, or to carry on any occupation, trade or business.
Clause (f) was deleted by the Constitution 44th Amendment Act 1978.
3. Article 14 Provides: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
4. “The death penalty is being retained but its imposition will be restricted to extreme cases” said the Minister of State for Home Affairs when introducing the Criminal Code Amendment Bill in December 1972. |
The Grenada Murder Trial : No Cause for Hanging
The trial was one of the most momentous in recent history. If one looks at the names of the victims in the murder indictment, and of the defendants accused of murdering them, between them they include nearly all the leadership of the Peoples’ Revolutionary Government of Grenada (PRG) and of the New Jewel Movement (NJM) party - a leadership which had been a beacon of progress in the Caribbean; which had proved that there could be a real and popular alternative to neo-colonialism; and which therefore had attracted the implacable hostility of the United States government.
Those dead included Maurice Bishop, a leader loved by his people and respected right across the world; Jacqueline Creft, the Minister of Education; Unison Whiteman, the Foreign Minister; Norris Bain, the Housing Minister; and Fitzroy Bain, leader of the Agricultural Workers.
Those on trial included ten members of the Central Committee of the New Jewel Movement. Among them were Bernard Coard, Deputy Prime Minister and Minister of Finance; Selwyn Strachan, Minister of National Mobilization; Hudson Austin, Minister
* Tony Gifford, QC, U.K.
of Communications and Commander of the Peoples' Revolutionary Army (PRA); and Phyllis Coard, Head of the National Womens' Organization. These were people who had been at the heart of the Grenada revolution.
At the center of the trial were the shattering events of 19th October 1983. Some of the events of that day were known to the world: that Maurice Bishop had been confined to his home by the NJM Central Committee; that a demonstration of Grenadian people came and released him, and marched with him to the capital St. George's; that the crowd took over Fort Rupert, the headquarters of the PRA, and ordered the soldiers to disarm; that a PRA detachment of three armored cars was sent from Fort Frederick, another army post, to Fort Rupert; that there was sustained firing in which people, including four soldiers, were killed; that the PRA took control of Fort Rupert, and that eight people were executed in an upper courtyard of Fort Rupert and their bodies burned during the night. But whilst those facts were reasonably clear, many questions remained completely unanswered. Had the situation been manipulated by agents of the CIA, and if so how? Who had taken the decision to march on the army headquarters, rather than, as many in the crowd had expected, to hold a meeting in the market square? What orders were given to the PRA officers who drove from Fort Frederick? Who opened fire when they reached Fort Rupert? Above all, what was the chain of command which ended in the execution of Maurice Bishop and the other seven? Did the execution order, as alleged by the prosecution, come from a meeting of the ten NJM Central Committee members at Fort Frederick?
ANALYZING THE TRIAL
I approached the trial with a particular experience. I had visited Grenada twice since the U.S. invasion in order to take part in the defense team. On each occasion I had been refused admittance to the Grenada Bar. But on the basis of my experience in Grenada I approach an analysis of the trial on the basis of certain principles.
First, it is necessary to understand the trial against the history of the invasion and subsequent occupation of Grenada by the United States. That invasion was a flagrant violation of International Law. The justifications advanced by the Reagan Administration were fabricated. It was said that U.S. citizens were in danger - they were not. It was said that the Governor General had asked for the intervention - he had not. The United States had in truth been planning for a long time to crush this new example of socialist development in the Caribbean. Ronald Reagan had even claimed that tiny Grenada was a threat to the security of the United States. He struck on 25th October 1933 because an opportunity had been presented to him to flout International Law with the minimum of adverse reaction.
Once in control, the United States and their Caribbean allies were determined to extirpate all the gains of the Revolution. I well recall the helicopters, the constant jeep patrols, and the vulgar soldiers off-duty who were the visible signs of the occupation in February 1984. The leaders and activists of the Revolution were put in jail, and a massive propaganda campaign was launched to brand them as the murderers of Maurice Bishop and the betrayers of the Grenadian people.
In those circumstances the motivation of the charges, particularly against the Central Committee members, was clearly to ensure their elimination as a potential force of political resistance in Grenada, by means of judicial verdicts and executions, irrespective of their guilt or innocence on the charges.
On the other hand, the trial could not be seen as an sham. Inexcusable crimes had, in fact, been committed. NOTHING, in my view, could justify the deliberate execution of Maurice Bishop and the other seven who were shot in the upper courtyard. The perpetrators of that deed had killed a dedicated and inspirational leader whom the whole progressive world mourned. They had dragged seven others into the firing line without any time for reflection, let alone due process of law. The world had an interest in knowing who had committed or authorized these crimes. The support given to the defendants could not be unconditional.
POLITICAL ERRORS OR CRIMINAL ACTS?
There is a distinction between the criminal act of execution and the political errors which led to the 19th October confrontations. For there was another central question hanging over the trial - how was it that the leadership of the NJM became so fatally ruptured that the trauma of 19th October could happen at all? On this question there have been many commentaries, but until recently the voice of those in jail was not heard. Now, from their statements in court and from a book to be published, their account is known.
My own belief is that serious mistakes were made in the handling of the proposal made in September 1983, that there should be joint leadership of the NJM by Maurice Bishop and Bernard Coard, although I totally reject the US propaganda that this proposal was an attempt by the “Marxist Coard faction” to overthrow the “moderate Maurice Bishop”. There is no evidence for that story, which is an offence to the integrity of both men. The argument was not about the direction of policy, but over the weak state of the NJM as a party.
The joint leadership proposal was made and accepted by Maurice Bishop as a cure for the NJM's weaknesses. That was simplistic in itself, for the problems lay more with the lack of participation at the grass roots than with the precise character of the leadership. When Maurice Bishop had second thoughts about how the proposal would work in practice, the majority on the Central Committee reacted with impatience and intolerance, insisting on adherence to the original decision rather than pausing to weigh up the situation and to maintain unity. The house arrest of Maurice Bishop, while prompted by genuine fears, was the final act which set the Central Committee majority against the Grenadian people, who could not understand what was going on.
Mistakes were also made in that period by Maurice Bishop and those with him. They stirred up opposition to the joint leadership decision while abroad on a trip to Eastern Europe, instead of waiting for further discussions back in Grenada. They allowed rumors to be put about that Bernard and Phyllis Coard were plotting to kill Maurice Bishop - rumors whose exact source is still unclear, which may well have been put about malevolently by CIA agents in order to inflame the situation.
There are many lessons to be learned from that crucial time. The essential point for an analysis of the trial is that the defendants should not be left to hang because they may have mishandled the situation in their party. The issue must be whether a fair, judicial process has found them guilty of murder. On that issue my conclusions, in this paper, are that the process has not been fair, and that the case against the NJM leadership is flimsy. That is why there must be a campaign to save their lives.
AVOID SIMPLE PREJUDGEMENTS
It follows that an objective analysis of the trial must avoid two errors into which different progressive groups have fallen over the last three years. On the one hand there are those who are so incensed at the death of Maurice Bishop and by the destruction of the Grenadian revolution, that they spit upon the defendants on trial and care not if they are executed. Such people are playing the game of imperialism. If the defendants were executed, almost the whole leadership of the NJM would be liquidated, and the forces of reaction and exploitation would be delighted.
On the other hand, there are those who are so outraged by the US invasion that they denounce the whole trial process as being inevitably corrupt, and act as if all the defendants must, by definition, be innocent. The danger of applying to the trial such uncritical labels as 'kangaroo court’ or ‘Yankee court’ is that they obscure a more complex reality. The trial in the Richmond Hill courtroom did bear most of the hallmarks of due process. The accused had the right to lawyers of their choice under legal aid. The evidence against them was supplied to them in advance, and was given in public. They had the right to cross examine the witnesses and to present their own defense. The verdicts were delivered by a jury of Grenadian citizens.
However the trial, while superficially normal, was fundamentally flawed. It was held in an unconstitutional court, from which the constitutional safeguard of an appeal to the Privy Council was missing. It contained a number of grossly irregular features. As a result I shall argue that it cannot be considered to be a fair trial. I shall argue further that, on the basis of the evidence as presented, a fair trial may have ended in very different verdicts. Tragically, the trial has not provided answers to the key questions which are posed by the tragedy of 19th October.
THE UNCONSTITUTIONAL COURT
Under Grenada's Independence Constitution, the court having jurisdiction over Grenada is the Supreme Court of the Eastern Caribbean States (ECSC). From there an appeal lies to the Appeal court of the Eastern Caribbean States from which there is a final right of appeal to the Privy Council in London.
Following the Grenada revolution in March 1979, the other Eastern Caribbean Governments, out of hostility to the PRG, unilaterally withdrew the facilities of the ECSC court system from Grenada. The PRG was therefore forced to set up its own court system, the High Court and Court of Appeal of Grenada. The judges of these courts enjoyed full security of tenure and remained wholly independent of the government. It is significant that since the invasion the President of the Appeal Court, Mr Justice Haynes, has said that during the period of the revolution, “fair trials did take place”. Since the invasion, the Grenada government has claimed to respect the provisions of the 1973 constitution. It has restored every other clause EXCEPT the clauses designating the court system of Grenada.
Why has the constitutional court system not been restored? One can see no reasons of administrative difficulty, for until March 1979 the ECSC court system worked smoothly to administer in Grenada. Indeed, if one looked only to administrative convenience, the arguments would be strong in favor of returning to the ECSC court system as soon as possible. For of the two judges sitting in the High Court of Grenada, Chief Justice Nedd retired in December 1985, and Mr Justice Patterson was obliged to disqualify himself from hearing the murder trial because of a highly prejudicial speech made in Jamaica in 1984, in which he called the defendants "Satans". By the start of 1986 there were therefore no judges available in the High Court of Grenada to preside over the trial.
Meanwhile in 1985 the Grenada Court of Appeal had made a ruling, in an application
made by the murder trial defendants, on the legality of the existing Courts. In its ruling the Court of Appeal granted the High Court of Grenada a temporary validity on the grounds of necessity. However, it accepted the argument that the High Court was unconstitutional, and it expressed the expectation that the Grenada government would act with "reasonable despatch" to restore the Court system embodied in the Constitution.
In November 1985 the Constitution Commission set up by the Grenada government itself reported, and recommended a return to the ECSC court system, including the right of appeal to the Privy Council.
But the Grenada government took no steps to rejoin the ECSC. Instead Mr Justice Dennis Byron was seconded from the ECSC for a temporary period to be "acting Chief Justice" of Grenada. The Official Grenada government gazette of 30th January 1986 stated that he was appointed to "hear certain matters". The local press revealed that his appointment was to last for three months.
The position, therefore, was that a temporary Judge was sitting in a temporary court and the inference was irresistible that the government of Grenada was deliberately manipulating the judicial arrangements in order to deprive the accused of the much stronger legal protection afforded by the ECSC. In particular the ECSC would provide:
(a) the right of appeal to the Privy Council; (b) the opportunity for the accused to apply for the trial to be held in another island if the local prejudice against the accused was thought to be so overwhelming as to prevent a fair trial in Grenada; (c) the right to be tried before a judge whose appointment and tenure did not depend on the Grenada government.
FAIR TRIAL MOTION
In September 1985, the defendants had filed a constitutional motion in which there were two main elements:
First, the defendants submitted that their constitutional right to a fair trial could not be granted to them because of the massive prejudicial pre-trial publicity campaign, which had been directed against them from the time of the invasion onwards.
Secondly, and because of the ruling of the Court of Appeal that the High Court was only of temporary validity, the defendants applied to have the fair trial issue referred to the ECSC, which they claimed must now be the only court which could have legal jurisdiction.
After considerable delay, because no judge was able to hear the case, the motion came before Mr Justice Byron in March 1986. On 25th March he ruled that he would not have the Fair Trial Motion referred to the ECSC, and that the Grenada High Court was competent to hear it. The defendants immediately appealed against this ruling to the Grenada Court of Appeal which was due to sit in May. The position then was that the Court of Appeal would determine the issue of the reference to the ECSC, and then, depending on their decision, the Fair Trial Motion would be heard. It was clearly desirable that those matters should be dealt with before the actual murder trial began. But on 7th April Mr Justice Byron announced that the trial would proceed immediately. The defense applied for a stay of the trial pending the ruling of the Appeal Court, but on 9th April the Judge refused the Application for a stay. He ordered that the Jury should be empaneled to hear the trial on 11th April.
THE WITHDRAWAL OF DEFENSE LAWYERS
It was at this point, on 1lth April 1986, that the defendants, after consulting with their lawyers, instructed them to withdraw from the trial. Ian Ramsay QC, the leader of the Defense team, said to the Court:
“We will not co-operate with this part of the proceedings which we see as having the effect of preempting the Court of Appeal proceedings, and to face the Court of Appeal with a 'fait accompli' when the applicants' appeal comes on.”
In a subsequent letter to all the Commonwealth Heads of Government, Mr Ramsay said: “As lawyers trained in England and brought up in the principles of the Common Law, we are unable to take part, nay prohibited, from legitimizing in any way a 'trial' in or by an admittedly unconstitutional court.”
He also claimed that it was quite unrealistic for the Defense team to prepare complex written submissions for the Court of Appeal and at the same time to be devoted to the defense of people on trial for their lives.
The withdrawal of the lawyers was followed by a decision made by nearly all of the defendants to take little further part in the proceedings, and to protest with chants of "this is a Yankee court", "Why are you afraid of a constitutional court?" and "No trial in a Reagan court".
There is no doubt that this strategy had decisive and devastating consequences. In the firstplace, the evidence of all the prosecution witnesses went completelyunchallenged. As we shall see, there were a number of witnesses called on behalf of the prosecution whose evidence was confused and contradictory, and whose credibility might well have been destroyed by cross-examination. Secondly, the defendants were completely unprotected when, in the weeks following their change of strategy, they were treated to a judicial sentence of Contempt of Court, and a number of extra-judicial and illegal beatings and harassments which are described below. Thirdly, they were unable to argue a number of legal points which arose during the trial concerning the jury, the court procedures, and the law relevant to the murder charges. Finally, their possibilities of exposing to the outside world the nature of the trial and of the evidence brought against them, and their answer to it, were severely restricted.
For all these reasons, I feel bound to question the wisdom of the decision which was taken to withdraw the lawyers from the case and to disrupt the proceedings thereafter. Later the defendants claimed that they were in “an impossible 'no win' situation”, and they were surely right in concluding that every obstacle was being put in their way in order that convictions could be secured. Even so, it is possible and necessary in political trials to use every weapon available to win the battle for international public opinion. Whatever the prejudices of the judge and jurors, it was possible and necessary to expose to a wider public the truth of what was happening before, during and since 19th October 1983.
However, the fact that the defendants adopted this strategy does NOT mean that they are guilty of the charges, still less that they must be allowed to hang. On the contrary, they have asserted that they would be anxious to establish their innocence in the course of a fair trial, and in the course of their statements from the dock many of them set out what their defense would be. They spoke of the torture to which some of them had been subjected in order to extract “confessions of guilt”. They analyzed the impossibilities in the evidence of some of the key witnesses. In spite of all the limitations caused by the absence of the lawyers, it is still possible and necessary to analyze whether justice was done in this trial.
STILL NO CONSTITUTIONAL COURT
In the event, the defendants lost their attempt to have the case referred to the ECSC. On 17th May 1986 the Grenada Court of Appeal declared that Court did not exist in Grenada, and it was therefore an abuse of the process of the court to attempt to refer a motion to it.
On 19th June 1986, a hearing took place before Mr. Justice Patterson who ruled that he had no jurisdiction to hear the Fair Trial Motion when the trial itself was proceeding in another court. That ruling was successfully appealed, and on 25th July 1986 the Grenada Court of Appeal referred the Motion back to Mr Justice Patterson. But by the end of 1986 the Fair Trial Motion had not been heard. it has to be said that given Mr Justice Patterson's known views, and the fact that the trial has now concluded, it would be unlikely in the extreme for the defendants to get anywhere by having the motion heard.
In its ruling on 17th of May the Grenada Court of Appeal expressed itself in strong terms about the delays which had taken place in the return to the ECSC. Mr Justice Haynes, the President of the Court, said that while their 1985 judgement, which gave the Grenada High Court its temporary validity, was still in effect, "we cannot escape the fact that a year has passed since the judgement and nothing has been done. We should not leave the matter so. We cannot."
Mr Justice Haynes made an order that the Grenada courts remained valid and unchallengeable, but continued:
"We, however add this, that this Court recognizes and records the urgency of the matter and demands that active steps be taken to regularize the judicial system of Grenada, and this Court expects to be advised as to the position of the negotiations at its next sitting which is fixed for Monday 21st July 1986."
Faced with this clear directive from the Court, the Grenada Cabinet in July 1986 took a formal decision to authorize the Minister of Legal Affairs to apply for Grenada's re-entry to the ECSC. But, yet again, months have dragged by, and there has been no further announcement of which I am aware. The inference seems clear, that the Grenadian authorities are seeking to delay any final arrangement with the ECSC court until after these defendants have had their last appeal and been executed. They do not wish to allow the defendants the right of appeal to the Privy Council.
On the issue of the Privy Council appeal, there is no doubt that any independent Commonwealth State has the full right to opt out of what is, in many ways, a colonial anachronism. But that is not Grenada's position; they wish to reinstate the Privy Council appeal, but not yet. Is that because they fear the scrutiny of an independent judicial body, external to Grenada? It is for that reason that an appeal has been made by myself and others to urge the Government of Grenada to return to the constitutional court system in time for the murder trial defendants to have the benefit of it.
THE PREJUDICE OF THE JURY
On 11th April 1986, when the defense lawyers announced their withdrawal, the array of 140 potential jurors were present in court, waiting for the time when 12 of their number would be empaneled as the jury. They were present when Mr Justice Byron, rather surprisingly, threatened the lawyers with charges of contempt of court. One of the defense lawyers, Mrs. Jacqueline Samuels Brown described the scene which followed in an affidavit:
“Immediately after Mr Justice Byron intimated contempt proceedings, there was widespread clapping by jurors as well as jeering and booing.... during the adjournment the jurors continued to make hostile comments in relation to the accused and their counsel....”
“On resumption of the session the presiding judge announced that he would postpone his decision in relation to possible contempt proceedings until the following Monday, and he adjourned the day's session of the court .... on this adjournment the array of jurors hurled further hostile remarks, threats and jeers at the accused and their counsel...”
"As buses filled with jurors left the compound, a large number of them raised their fists threateningly and menacingly at the defense counsel who were in the prison yard, saying, among other things, 'they going get a cut-arse and you too'..."
“From this array 12 persons were subsequently empaneled to sit as the trier of fact in this trial.”
A panel of jurors which displayed such open prejudice ought to have been disqualified from sitting. It was inevitable that many, if not all, of the potential jurors in this trial would have been infected by a degree of hostility and prejudice. Ever since the invasion there has been an orchestrated propaganda campaign, initiated by the United States government, labeling those now accused of murder as "power seekers", "thugs" and "murderers". Even following the laying of charges and the preparations for trial the propaganda campaign never died down. The defendants, who have analyzed the local media closely, state that during 1985 one hundred and twenty seven prejudicial references to the accused were in two of the five local newspapers, including emotive articles and editorials and "Letters to the Editors". No action was taken to curb this publicity, just as no action was taken in court on 11th April when the jurors made their outbursts.
Complaints have also been made about the method of selection of the panel of jurors. On the 5th March 1986 the Registrar of the Court had been abruptly dismissed, and on the following day replaced by a woman, who until then had been a member of the prosecution team. The defendants, not surprisingly, found this replacement extremely suspicious. It was believed that the former Registrar had selected an array fairly and in accordance with the law, and that he had been criticized for this. The final array was selected by his successor.
It is impossible to judge on the material available whether this jury was chosen from a genuinely random sample of Grenadians or not. The trial judge dismissed a challenge to the array of jurors which had been made by the lawyers before their withdrawal on the basis of the presence of the former member of the prosecution team as Registrar. Much later on, a detailed analysis of the jurors was done by Phyllis Coard in her statement from the dock. She described "a truly amazing and baffling situation", in which many hundreds of potential jurors had been passed over without any apparent reason. She. concluded that "the array of jurors was carefully hand picked". However, it should be noted that the defense legal team, which was still in Grenada when the array of jurors had been selected, did not allege that the actual selection was biased, only that justice was not being seen to be done by the appointment of the new Registrar. The truth may well be that the authorities did not need to rig the jury - their propaganda had ensured that almost any group of Grenadians would, at least until they heard the other side of the story, be affected by feelings of intense hostility towards the accused.
THE RIGHT TO CHALLENGE JURORS
The final selection of a panel of 12 jurors was made on 18th April 1986. Seventeen of the defendants had by then been sentenced to 7 to 10 days imprisonment for contempt of court, after disrupting the proceedings. They were not present when the jury was selected, and had no opportunity to exercise their right to challenge prospective jurors. This, in my view, was fundamentally wrong. The right to challenge jurors is deeply entrenched in the system of jury trial. It may well be that their disruption entitled the judge to hear evidence in their absence. It did not entitle him to have the jury picked in their absence. This will certainly be one of the matters to be argued on any appeal.
In the event, the prosecution played a major part in the selection of the final jury. Forty- three names were called before 12 jurors were sworn. Twenty-nine of them were made to "stand by" by the prosecution, and 2 were discharged for other reasons. Fifteen further people were made to stand by the prosecution before 6 alternate jurors were selected.
This right for the prosecution to "stand by" jurors exists also in England, but is very rarely used. The right is limited to standing jurors by until the whole panel is exhausted. It would have been possible, therefore, for the defendants to have secured the presence on the jury of some of the jurors who had been stood by, if they had used their right of making challenges so frequently that all the 140 jurors had either been challenged or stood by. It would then have been necessary to recall the jurors who had been stood by. The complete absence of the defendants, with the exception of Fabian Gabriel and Raeburn Nelson, meant that none of this could take place. I presume that the prosecution had good reason for their decision to stand 29 prospective jurors by. In a small society like Grenada they must have had information as to which of the jurors was most likely to be favourable to the prosecution case.
CONTEMPT OF COURT
As soon as the lawyers left the case, the pressures upon the defendants escalated. Food from their families, visits and letters were stopped. The defendants were refused the possibility of meeting together to discuss their defense - a right which had been accepted in a court order made by Chief Justice Nedd in 1985. For some weeks families were even stopped from entering the court. The Director of Public Prosecutions informed the Court that the defendants had "broken a prison regulation" on 11th April, and that therefore all their "privileges" were withdrawn.
Matters became worse on 16th April, and again on 18th April, when the judge cut short defendants who were making protests about their treatment. The judge countered by sentencing them to imprisonment for the offence of contempt of court, at first for one day, then on 18th April to sentences of between 7 and 10 days. All defendants were sentenced except for Fabian Gabriel, who was soon to turn Queen's evidence, and Raeburn Nelson, who objected on conscientious grounds to making any disruption of the court.
The effect of the contempt of court sentences was that the prison authorities took the opportunity to treat them as convicted prisoners rather than as untried prisoners on remand. Their hair and beards were forcibly shaven, a move designed both to strip them of their dignify and to give them the appearance of convicts before the jury.
These contempt of court sentences were unnecessary and deplorable. A judge presiding over a trial normally has the right to order a defendant to be removed to the cells if he disrupts the proceedings. It may also be appropriate to sentence a defendant for contempt of court AFTER the trial has ended. But during the trial, the right of the defendants to have the facilities for their defense must be paramount.
THE ABSENCE OF THE DEFENDANTS
The defendants have stated that “by April 18th it had become clear that a free and fair trial was not to be had in Grenada”. From then until the close of the prosecution case they refused to participate in the trial. When brought into court at the beginning of each day, they chanted, clapped and shouted until the Judge ordered them to be removed back into the cells. After each witness had given evidence, the defendants were brought into court individually to have the evidence read to them and to be given the opportunity to ask questions. Again they continued with their protests.
The defendants have argued that according to the Grenada constitution they have an absolute right to be present at their trial. Presumably this argument means that a defendant who was determined to disrupt the proceedings would have to be gagged or straight jacketed in order that the proceedings could be heard in his presence. The argument depends on the interpretation of the words of the constitution, and is by no means straight forward. It will presumably be fully explored in any appeal.
PHYSICAL BEATINGS
On 25th April, after being charged and sentenced for contempt of court for the third time, 8 defendants, including Bernard Coard, Selwyn Strachan, Leon Cornwall and John Ventour were beaten by a group of policemen attached to the court. The beatings began immediately outside the court, actually within the precincts of the court. They were thrust into a car, and were beaten again all the way back to their cell block. They were then denied medical attention for more than 72 hours, and appeared in court on 28th April, the following Monday, with obvious injuries. Selwyn Strachan's eye was so obviously swollen that it was almost closed. He said that he had been beaten about the head, shoulders, arms and legs. The Judge ruled that "this is not a suitable court to investigate the matter", and left it to the Director of Public Prosecutions to investigate. But no charges were ever brought against the police officers responsible.
REMOVAL OF DOCUMENTS
The contempt of court sentence an 18th April had the further consequence that the defendants' pens, paper and other writing materials were seized by the prison authorities. Their documents and legal notes were taken away. When they complained about this on 29th April the Director of Public Prosecutions argued that they were now convicted prisoners, and that therefore the "privileges due to remand prisoners" had been taken away. Even the Judge could not accept this, and ordered the immediate return of the documents.
However, five documents were never returned. They included a detailed analysis of the contradictions in the evidence of prosecution witnesses, and a list of potential defense witnesses. Each of these two documents would have been extremely interesting to any prosecuting authority unscrupulous enough to want to thwart the tactics of the defense by underhand means.
Other vital documents were never received by the defendants at any time. From early 1984 onwards they had requested, through their lawyers, the production of documents and tapes which had been seized by the United States military during the invasion. They included Minutes of NJM meetings; the diaries from various army camps (for example the Fort Frederick camp diary for 19th October 1983 would have recorded all movements in and out of the camp and would have been absolutely essential in rebutting the accusation of a Central Committee meeting at the Camp on that day); and a tape recording and statements made by the key prosecution witness Cletus St. Paul during investigations made prior to the invasion.
The prosecution did not deny that these documents and tapes existed, but merely stated that they were in the possession of the United States which was claiming diplomatic immunity in refusing to provide them. The Judge ruled that he had no jurisdiction to compel a foreign government to produce the documents. Thus conveniently the United States and Grenadian authorities between them were able to prevent the defense from obtaining material which the law entitled them to have.
THE COURTHOUSE
The most conspicuous impropriety in the proceedings was the place of trial itself. In the capital, St Georges, there is a court building in the center of town with two large court rooms. In February 1984 the defendants had been brought into the court building to be charged with the murder charge. I was present on that occasion, which passed off without there being any serious security problem. A large crowd had gathered in the streets outside and they were cordoned off from the area of the court house without difficulty by the police. The court room which was used was big enough to provide room for the defendants and their lawyers, as well as for a large public gallery.
Instead of using the court house, a special court was constructed on Richmond Hill, within the precincts of the prison, just outside the main prison doors. To reach it meant a long journey out of town, through a number of police check points. Space for the public was limited, and tickets had to be applied for by relatives of the defendants.
The difference in atmosphere was obvious, and was intended. A trial in the normal court house would have given the opportunity for Grenadians to drop in and listen, to have heard the defendants presenting their defense, to have understood that there were two sides to the story. The removal of the trial to an inaccessible hill top reinforced the impression that these were dangerous criminals on trial, and allowed the harassment of the defendants to go virtually unobserved.
THE EVIDENCE AT THE TRIAL
Any attempt to analyze the evidence given at the trial meets two obvious difficulties. First, there is no complete record of the trial proceedings. I have relied on a series of reports which were written in the Barbados Daily Nation, the Grenadian Voice, and the Grenada Newsletter, but they are far from complete. In particular there is a very inadequate record of the summing up, which would normally provide a useful summary of the factual and legal issues in the case
Secondly, as indicated above, the evidence of the prosecution witnesses was not challenged or tested in cross examination. The defendants' statements from the dock, many of them extremely detailed, give an indication of some of the issues which would have been explored in cross examination. But one can only speculate as to what the strength of the evidence would have been if it had been put to that test.
It may be useful to summarize some of the key figures in the case. There were eleven victims alleged in the murder indictment, and from their mode of death they fell into two categories:
(i) the eight victims of execution, who were Maurice Bishop, Jacqueline Creft, Unison Whiteman, Norris Bain, Fitzroy Bain, Brat Bullen, Evelyn Maitland and Keith Hayling. The evidence from a number of eye witnesses was that after the PRA detachment had retaken Fort Rupert, these eight were lined up against a wall in the upper courtyard of the Fort and executed by a firing squad. In their case anyone who ordered their execution or who assisted in carrying it out, would in law be guilty of murder. The central issue for the jury would have been who was involved either in the ordering or the carrying out of the execution?
(ii) Avis Ferguson, Jemma Belmar and Vincent Noel, who were killed earlier on in the course of the shooting, after the PRA detachment arrived from Fort Frederick to retake Fort Rupert. In this case, the questions to be answered were more complex:
(a) who had given the orders for the operation? Here the same issues arose in relation to most of the Central Committee members as in the case of the executions, ie) were they meeting as a Central Committee at all and if so what did they order?
(b) was it a lawful military operation to seek to take back Fort Rupert after it had been taken over by a crowd of civilians? Ewart Layne, who admitted giving the orders to the PRA detachment, argued strongly that he gave lawful orders for a lawful mission.
(c) who fired first at Fort Rupert? If the PRA detachment had fired first, then it probably would be responsible for using excessive force. But, if, as many defendants claim, the firing was started by those inside Fort Rupert, then the soldiers could argue that they used reasonable force to accomplish a lawful mission, and that they were therefore not guilty of murdering those who died in the cross-fire.
THE DEFENDANTS
The defendants also fell into different categories: (1)(1 The ten numbers of the Central Committee of the NJM: Hudson Austin, Bernard Coard, Liam James, Leon Cornwall, John Ventour, Dave Bartholomew, Ewart Layne, Kamau McBarnett, Selwyn Strachan and Phyllis Coard. No one suggested that they were at Fort Rupert when any of the deaths occurred. The case against them was that they met together at Fort Frederick and gave the orders. By ordering the storming of Fort Rupert by force, it was said that they were guilty of the murders of the three who died in the fighting, and it was further alleged that they gave a direct order for the execution of Maurice Bishop and those who were with him.
Among the Central Committee members a particular and prominent part was taken by Ewart Layne. He accepted that as Second in Command of the Army he had given orders to the PRA detachment to recapture Fort Rupert. Important questions therefore arise as to what orders he gave, and as to whether he was acting alone as a military commander, as he claimed, or following orders from the Central Committee.
These ten defendants were all convicted of all the murders and sentenced to death.
(2) Christopher Stroude, Lester Redhead and Callistus Bernard (usually known as Abdullah). These were all senior PRA officers who according to some of the evidence (although it was very contradictory) had been in positions of command at Fort Rupert at the time of the executions, and had taken some part in giving the orders to fire. They were all convicted and sentenced to death. Lester Redhead and Christopher Stroude, who were already at Fort Rupert at the time of the capture were found guilty only of the murder of the eight who were executed.
(3) Andy Mitchell, Vincent Joseph and Cosmos Richardson. These were three PRA soldiers who, according to the evidence (although again it was contradictory), had actually fired upon the eight who were executed. They were each found guilty of manslaughter only. The basis of the verdict is not clear. The prosecutor had suggested in his speech to the jury that any soldier who mistakenly acted in the belief that he was carrying out lawful orders could be found guilty of manslaughter, but I do not know whether this line was adopted by the Judqe. It seems more likely to he the case of a merciful verdict by the jurors. Vincent Joseph and Cosmos Richardson were sentenced to 45 years imprisonment and Andy Mitchell to 30 years.
(4) Cecil Prime, who was a soldier on duty at Fort Rupert, and who hardly appeared in the evidence at all. According to Fabian Gabriel, he was present in the top square at some time before the executions, but is not said to have taken any part. He did not make any confession to the police. Yet he was convicted and sentenced to death. His conviction is particularly iniquitous, for he would appear to have had every chance of being acquitted if the trial had been properly contested.
(5) Raeburn Nelson, who was part of the PRA detachment sent to take Fort Rupert, but against whom also there was very little direct evidence. He took no part in the disruption of the court proceedings, but sat silently throughout the trial. He said that he had had "friendly encounters" with the investigating police officers. He was acquitted on all of the charges and released.
THE DEFENDANT TURNED CROWN WITNESS
The last of the original 19 defendants was Fabian Gabriel , a PRA sergeant who was in charge of logistics at Fort Rupert. On 22nd April 1986, the day before the prosecution opened its case, the Director of Public Prosecutions announced that Fabian Gabriel had been given a "conditional pardon". She said that the pardon could be canceled, and he could still be tried for murder, if he did not "testify fully and truthfully".
During the remand period there had been intense pressure brought to bear against some of the defendants and their families to induce them to give evidence against their fellow accused. For instance, Kamau McBarnette said in his statement from the dock:
"I was promised a house. Those people said to me that measures would be taken to guarantee my safety. These promises and enticements did not work and when they failed they resorted to threats such as I would be hanged, or I would spend many years in prison if I did not co-operate."
It is to be regretted that no one was able to cross-examine Fabian Gabriel in order to extract from him information as to exactly what pressures were put upon him and what
deal was done. Experience from the "Supergrass" trials in Northern Ireland indicates that such witnesses are extremely vulnerable in cross-examination, and extremely suspect in their reliability. With a witness like Fabian Gabriel, one can never know whether he is implicating people because they are guilty, or because he has promised, as part of the deal with the authorities, that he will implicate as many people as possible.
Fabian Gabriel was only able to give evidence as to what was alleged to have happened at Fort Rupert, although there his evidence against several defendants was crucial. However, the authorities must have been furious not to have also secured a “supergrass” within the Central Committee, where we shall see their case was extremely weak.
THE EVIDENCE
The prosecution evidence fell broadly into five categories:
1. evidence as to the history of the crisis 2. evidence as to the takeover of Fort Rupert by the crowd and its subsequent capture 3. evidence as to the executions 4. evidence as to the role of the Central Committee 5. evidence from police officers as to the alleged confessions of the defendants
1. THE HISTORY OF THE CRISIS
George Louison, a former member of the Central Committee of the NJM, gave extensive evidence about the build up of tension within the NJM during September and October 1983. He spoke of his return with Maurice Bishop from the Eastern European trip on 8th October. They were met at the airport by Selwyn Strachan alone, who said that the joint leadership issue would be back on the Central Committee agenda on 12th October.
He spoke of the meeting on 12th October, when he himself was charged with influencing sections of the Party against the Central Committee decision, and was expelled from the Central Committee. Maurice Bishop was accused at the same meeting of circulating the false rumor of a plot by the Coards against him, which he denied. He spoke of the general meeting of Party members, about 250 - 300 people, which was held on 13th October. He said that Selwyn Strachan made the announcement that Maurice Bishop was under house arrest for spreading false rumors.
George Louison went on to speak of a series of meetings held between Bernard Coard, Selwyn Strachan, Unison Whiteman. and himself. He said that Bernard Coard was proposing that Maurice Bishop should leave the country and go somewhere else, maybe Cuba and cool it for a few years. George Louison and Unison Whiteman were arguing that the people were becoming increasingly angry over the house arrest of Maurice Bishop and were likely to protest through mass demonstrations, and that the only solution was to restore Maurice Bishop to the position of leadership. Bernard Coard and Selwyn Strachan said that they would take their views to the Central Committee, but by 18th October there had been no decision and on that day George Louison was arrested.
Cletus St Paul, Maurice Bishop's head of security, also gave evidence about the October days. He had been with Maurice Bishop all the time during the Eastern European trip and after the return to Grenada on 8th October. On 12th October he was accused by Liam James of circulating the rumor about a plot and he was put under arrest.
These two witnesses were both accused of telling lies by the defendants, but were not directly cross-examined. They were both key actors in the unfolding drama. Cletus St Paul has been directly accused by the defendants of being an agent for the CIA. George Louison was believed by them to bear a heavy responsibility for stirring up animosity against the Central Committee majority during the Eastern European tour. George Louison's account of the final days presents a very different emphasis to that later given by Bernard Coard to the Court. According to Bernard Coard, the crisis was tragically close to being satisfactorily settled, and the Central Committee had conceded many of the points which Maurice Bishop was insisting on. So the testing and probing of the evidence of George Louison and Cletus St. Paul by cross-examination could have been extremely significant in helping Grenadians to understand the development of the crisis.
2. EVIDENCE FROM FORT RUPERT
A number of witnesses had taken part in the demonstration at Maurice Bishop's house and went with him to Fort Rupert. Pamela Cherubin said that she was part of the crowd chanting, "B for Bishop, C for Coard and C for Communism". Sylvia Belmar spoke of Maurice Bishop asking Christopher Stroude to disarm the soldiers at the Fort. She said that Maurice Bishop had asked two of the soldiers to reconnect telephone lines so that he could speak to Grenadians and to the rest of the world.
These and other witnesses then described what happened when the three armored cars arrived from Fort Frederick. Ann Fleptune, a student who lost her left leg during the firing, was near the entrance to Fort Rupert:
“I saw the armored cars coming up towards the Fort and heard gun shots coming from the direction of the armored cars. I started to run towards a building not far from behind me but I fell. Before I fell my left leg was paining.”
Sylvia Belmar was one of the witnesses in the operations room. She said that there were continuous explosions for about 15 to 20 minutes. It was during that time that Avis Ferguson was killed and Jemma Belmar and Vincent Noel received fatal injuries.
Later the defendant Abdullah, in a full statement from the dock, gave his account as commander of one of the armored cars. He said that he was going on a lawful mission, without any idea that they would be shot at. He said that when the first armored car arrived at the entrance to Fort Rupert the unit was ambushed by rifle fire and one of the soldiers fell dead. Rifle fire was coining from the Fort over his head. Officer Cadet Mayers, who was in command of the detachment, was killed. He said:
"When we arrived there I gave the order to disembark from the transport. The objective of my unit was to control the Fort. It was not possible to advance to the square immediately because hundreds of people were streaming down from the Fort because of the battle which followed after the civilians opened fire and ambushed the unit. People were streaming down from the Fort with their hands in the air and the army did not open fire on them. There are photos of this. We were bogged down for some time, it could be about two to three minutes, by the civilians streaming out of the Fort."
It is clear that if there had been cross examination, a number of questions would have been asked about the unfolding of the events of 19th October. The issue of how and why and at whose instigation the crowd went to Fort Rupert at all, was never opened up. It would appear that there were people among Maurice Bishop's followers who had decided that a military solution to the crisis was necessary. It is equally clear that the Army Command considered it necessary that they should regain military control. The tragic outcome described by the witnesses was perhaps inevitable once these positions had been taken up. But whether those who ordered and carried out the action were guilty of the murder of those who died in it is a question on which it is impossible, on the limited evidence available, to give a complete legal answer. It could certainly be argued, as a matter of law, that the legitimate army command has the right to eject civilians who have taken over the central headquarters of the army itself, even though the Prime Minister of the country is one of those responsible - at least as long as no unreasonable force is used by the army in its action.
3. WITNESSES TO THE EXECUTIONS
Three witnesses claim to have actually seen the executions: Beverley Charles, Walter Charles and Fabian Gabriel.
Beverley Charles, a PRA soldier, said that she was watching from a window in the barracks overlooking the upper square. She had seen seven of the victims in the square facing a wall with their hands on their heads. Andy Mitchell, Fabian Gabriel, Cosmos Richardson and Keith Hayling were with them. Andy Mitchell ordered Keith Hayling to be disarmed and told him "to join the other criminals across there."
She said that a little later she saw Lester Redhead coming across the Square. He spoke to Andy Mitchell, Fabian Gabriel and Cosmos Richardson. Shots were then fired from three directions. Andy Mitchell was in one direction and Fabian Gabriel on the second. She could not see the other direction. After the firing the victims fell to the ground.
Beverley Charles was adamant that Abdullah was not on the square at this time. She knew him, and said that she saw him later, when he threatened to shoot the wounded Vincent Noel.
Walter Charles was also watching through a window in the barracks. He said that the victims were led by Abdullah and Christopher Stroude up to the top square. He says that he saw Abdullah, Cosmos Richardson and Vincent Joseph carry out the executions with machine guns. He said that before the firing Jacqueline Creft had pleaded with Cosmos Richardson that she was a pregnant woman.
Fabian Gabriel succeeded in naming all the eight accused, other than the Central Committee members, as having been involved in some way. He said that Maurice Bishop and five of the other victims were being guarded in the top square by Lester Redhead, Christopher Stroude, Abdullah, Vincent Joseph, Andy Mitchell, and Cosmos Richardson. They were ordered by Lester Redhead and Abdullah to go to the waI1 . He said that Lester Redhead then pointed to Keith Hayling and Evelyn Maitland, and then said: "You Hayling, join the fucking line, and you Maitland, join the fucking line too. You also are bourgeois."
There then followed a question and answer which are significant as being the only evidence implicating Cecil Prime in the executions:
Gabriel: "I noticed Abdullah and Redhead leave the top square leaving Vincent Joseph on top of the tunnel on the top square with the machine gun."
Hudson-Phillips: “Did you see anybody else on top there?” (prosecutor)
Gabriel: “At that time I saw Cecil Prime also.”
Fabian Gabriel said that Abdullah and Redhead returned again after about an hour. Gabriel was one of those who were guarding them. At one point the Prime Minister asked for a cigarette, but Andy Mitchell refused to allow him a light.
When the actual executions occurred, Fabian Gabriel said that he was in his office on the top square “preparing a menu for the next day.” He heard the voice of Abdullah saying: “Comrades, turn around. This is an order from the Central Committee, you shall be executed by fire. It is not my order, it is the Central Committee’s.”
He said that Abdullah was reading from a piece of white paper. He then said that Jacqueline Creft pleaded that she was seven months pregnant, but Andy Mitchell replied saying, "no fucking comrade at this time." Abdullah then gave the order, "prepare to fire" and counted to three. Gabriel said that after that he witnessed "rapid firing that was on the bodies against the wall" lasting for "at least ten to fifteen minutes, I'll say ten minutes." He said that Vincent Joseph, Andy Mitchell and Cosmos Richardson were firing and Abdullah and Christopher Stroude were also present. He said that he "noticed Prime" at the tunnel on the top square, but again gave no evidence as to what Prime was doing.
Afterwards he said that Christopher Stroude called all the soldiers together, and said that Maurice Bishop was not true to the revolution. He was a traitor and that was why he had to be executed. He said that after that he helped to move the bodies. Abdullah told him to "finish" one of the bodies and he fired a single bullet at it. He claimed that:
"That is the only time that I, Fabian Vernon Gabriel, ever held a weapon in my hand."
Reading over the eye witness evidence, I felt two reactions. First, even if it was only approximately true, the callousness of the operation was sickening. But the second reaction looking at the evidence in its detail, is that it is riddled with contradictions and inconsistencies. These are apparent from the summary given above. The three witnesses give different evidence on such vital matters as who was in charge of the lining up of the victims; who gave the orders to fire; who carried out the firing; who swore at Jacqueline Creft; and who was present at the time. Penetrating cross-examination may well have served to heighten the differences and to have made it quite impossible for the jury to reconcile the three accounts. While it seems undeniable that a number of those in the dock had taken part in the execution, one must remain extremely concerned at the blanket conviction of all eight soldiers without there having been a detailed analysis of the strength of the evidence against each.
4. THE CASE AGAINST THE CENTRAL COMMITTEE
Two members of the Central Committee, Ewart Layne and Kamau McBarnette had made "confessions", which I deal with below. According to the law of evidence, those confessions could only be evidence against them. As against the other members of the Central Committee, the single witness was Cletus St. Paul.
Cletus St. Paul's account of the events of 19th October was that he was under arrest at the army camp at Calivigny, when Ewart Layne came to the camp. He spoke to Officer Cadet Myers, and then the soldiers at the camp who were in combat wear were made to board a military truck. He was made to board the truck as well, and it drove to Fort Frederick. He said that on his arrival , he came off the truck and went and sat on some ammunition boxes on a verandah "in the second building located at Fort Frederick from the Mental Hospital gate." He said that Liam James then arrived and told the soldiers that the masses had freed Maurice Bishop and were taking him to the city. Liam James said: "As a result things are getting dread in the country, and as a result the Central Committee will be arriving shortly to take a serious decision."
Cletus St. Paul then said that he saw the Prime Minister's car arrive with Bernard and Phyllis Coard in the back. He said that Bernard Coard had a brief case in one hand and a Makarov pistol at his side. Other members of the Central Committee then arrived. He named Selwyn Strachan, Hudson Austin, Ewart Layne, Leon Cornwall, John Ventour, Dave Bartholomew and Kamau McBarnette. The cars came to the bottom level of Fort Frederick, by the mental hospital entrance.
In the following exchange Cletus St. Paul then described the suggested "meeting" of the Central Committee:
Q. "Tell these persons, having arrived there, what else did you observe?"
A. "They joined the company of Liam James, Bernard Coard and Phyllis Coard. They conversed amongst themselves for a while."
Q. "Were you able to hear what they were saying?"
A. “No.”
Q. "What made you say they were conversing?'
A. "They were in a group shaking heads and making signs with their hands."
Q. “What next happened?”
A. "After that Leon Cornwall left the group and spoke to the soldiers ... in a commanding tone of voice."
Q. "When he spoke, could the other members of the Central Committee hear?"
A. "Yes. ... he told the soldiers that because of a rumor, a vicious rumor, spread by Maurice Bishop, counter revolutionaries, big businessmen seized the opportunity to create trouble, free Maurice Bishop from house arrest, and as a result these elements must be liquidated."
Q. "When he said this, was this in the presence and hearing of the Central Committee members?"
A. "Yes."
Q."What Happened?"
A.“He started shouting ‘Central Committee orders', the other members of the Central Committee shouted, 'Central Committee orders', and the soldiers said,.'We obey, we obey'."
He said that the other members of the Central Committee went to the second level of Fort Frederick, while Ewart Layne gave orders to Mayers, Abdullah and Nelson. The three vehicles then left Fort Frederick and he heard loud explosions and bursts of gunfire. After more gunfire he saw a "yellow flare in the direction of Fort Rupert". He heard Hudson Austin shout "mission accomplished". Other members of the Central Committee had been shouting "Long live the revolution, long live the Central Committee".
On the face of it this was an extraordinary piece of evidence. For the ten members of the Central Committee to hold a meeting in full view of a close associate of Maurice Bishop, who they had themselves arrested, was unlikely. In the event, it conflicted sharply with other evidence which was given. Joseph St Bernard, a worker at the mental hospital nearby, told the court that he saw various Central Committee members arriving in cars at Fort Frederick. He said that they went immediately to the upper level of the Fort, and therefore he did not witness any "meeting" in the courtyard.
Several of the Central Committee defendants in their statements from the dock denied altogether that there had been any meeting at Fort Frederick or that they had any advance knowledge of the executions. Phyllis Coard, as mentioned below, described vividly how she had arrived with a suitcase in her hand, and not in the Prime Minister's car, having been asked by Bernard Coard to pack their bags because they were leaving the island. Bernard Coard stated that he and others were "paralyzed" by the development of the situation.
Yet on Cletus St. Paul's evidence alone ten people have been sentenced to hang. At best he was a witness who had every reason to be biased against them. At worst, as the defendants allege, he was an agent. His claim to have observed a meeting going on under his very eyes, and to have heard the orders given directly afterwards with his ears, was extraordinarily convenient for the authorities who otherwise had no case against the majority of the Central Committee. It is quite unacceptable for death sentences to be carried out on the basis of such evidence.
One naturally has to look at the whole sequence of events on that day to see what explanations there could be for the ultimate executions. There are three possible explanations:
(1) that the officers on the ground at Fort Rupert carried out the executions on their own initiative as part of their mission to restore order at the Fort. One would think that this was unlikely, and that such a momentous action would have to have some order from higher authorities.
(2) that the whole operation, including the executions, was ordered and carried through by some or all of the senior military command. This I consider to be a very real possibility. The retaking of the Fort was a military operation, by military men for a military objective. It was carried through with a degree of violence which may well have been excessive. It is not at all unlikely that senior military officers may have given the execution orders in the name of the Central Committee to their subordinates, or that the civilian leadership was bypassed, particularly if it appeared to be dithering. Indeed many of the events of the day, including the disposal of the bodies and the subsequent curfew announcement, indicate a considerable extent of military ruthlessness in charge. I am not prepared to believe, without much stronger evidence, that the whole membership of the Central Committee had approved the fateful decision.
(3) The third possibility is, of course, that the prosecution is right and that the Central Committee did approve the action. It may have been in their minds that if Maurice Bishop remained alive and regained control of Grenada their own liberty was in danger, and perhaps their lives. It must remain a real possibility; but it certainly has not been proved satisfactorily to be true by the evidence given at this trial.
5. TRUE CONFESSIONS OR STATEMENTS UNDER TORTURE?
A number of the defendants had been interrogated by a team of Barbadian police officers, mostly during November 1983. Of the soldiers at Fort Rupert, Vincent Joseph, Abdullah, Christopher Stroude, Lester Redhead and Andy Mitchell were alleged to have made "voluntary" statements which amounted to full confessions that they had direct responsibility for the executions. Of the Central Committee members, Ewart Layne had made a "voluntary" statement in which he said that he had taken sole responsibility for giving orders to "liquidate" the leaders if they resisted. Kamau McBarnette was alleged to have said that after the army had retaken Fort Rupert, Abdullah returned to Fort Frederick and spoke to Ewart Layne; and that the Central Committee THEN held a meeting and decided that "Maurice Bishop and his clique must be executed." (It will be observed that this account is quite different from that of Cletus St. Paul, who had the Central Committee meeting BEFORE the army departs to retake the Fort.) Finally, Selwyn Strachan made a statement in which he said that Ewart Layne told him that a unit had been sent to recapture Fort Rupert, but that he was not aware of any instructions to execute, and there was no Central Committee meeting on the 19th of October.
When the Barbadian officers came to give evidence at the making of these statements, the accused made statements to the court in which they said that the statements had been obtained after they had been tortured and beaten. The Judge then held a "trial within a trial" in order to determine whether the statements were voluntary, and in each case decided that they were, and that they therefore should be admitted in evidence. When Inspector Watson came to give evidence, many of the defendants singled him out as one of those principally responsible for torture. Christopher Stroude claimed that he was the “victim of psychological and physical torture at his hands". Selwyn Strachan denounced him as a "torturer and henchman". John Ventour described him as the “king of them all”. When he took the witness stand, all the defendants except Raeburn Fielson chanted “torturer, torturer” until they were removed from the court. Inspector Watson then said in evidence:
"I have never beaten or brutalized any of the accused persons ... during the investigations, I found that the accused persons were very co-operative. They were all eager to assist. I am now totally surprised at their allegations of brutality."
In his statement from the dock, Abdullah gave graphic details of his interrogation by Inspector Watson and by Sergeant Ashford Jones. He said that he was sat on a chair, handcuffed behind his back, from 9.00 am till 12.00 midnight. He was questioned without a break by the officers taking turns. He continued:
“At about 12:00 midnight, I sort of drifted in sleep. Suddenly I found something around my neck! I jumped up. Sergeant Ashford Jones had taken a bath towel, tied it round my neck and start choking me by pulling it tight! I got up. He said, 'You ready to talk?' I remained calm. I sort of choked. He eased up, then tightened it again! He did that three times. Your Lordship, you can imagine the frame of mind I was in. These people could have killed me easily. They were a law unto themselves...”
“Ashford Jones realized that this choking business was not working so he dragged me in one corner. ... I was grabbed by about 7 policemen who started cuffing me with their fists to my head, groin and other parts of my body. They also used their feet. The physical pain was great. In retrospect, I feel that I should've resisted the torture some more, I should have stood up more and fight them more. But I was faced with a difficult situation. It was like a man who had worked for 15 years to accumulate some money and after that a robber stick him up with a gun and said 'Your money or your life'; and the man has decided and eventually he reasons 'I would give the money because after I can work another 15 years and get that money back one way or another.”
“After I was stamped in the face, my eyes were bleeding, I was completely disoriented. What to do? What should I do? In the end, although in some ways it is very hard for me emotionally to say this, I did sign a statement of lies incriminating myself that I Abdullah, did all sorts of fantastic things."
Christopher Stroude claimed that he had been kept at the police headquarters from 9.00 am on 15th November 1983 until around 3.00 am on 16th November and that he was tortured throughout the day on the 15th until he finally broke in the early hours of the morning of 16th. The statement itself records that it was written between 4.15 and 7.05 am, which is an unlikely time for a normal interrogation. He called for the prison diary which would prove that he had been at police headquarters between the times which he stated. Unaccountably it turned out to be "missing", and despite repeated complaints it was never provided.
In five cases the prison doctor was able to confirm the defendants allegations by testifying that he had observed injuries such as abrasions to the chest, abdomen and genitals, on the day following their questioning at CID headquarters. But in four of the cases the doctor maintained, and the Judge accepted, that the injuries could have been "self-inflicted". In the fifth case even the doctor could find no other explanation for swollen and injured testicles, but this did not prevent the Judge from accepting the statements in every case as "voluntary".
Finally, it should be noted that there are blatant contradictions both between one alleged "confession" and another and between the "confessions" and the evidence given by eye witnesses. In particular, in the "confessions", all the accused soldiers maintain the victims were told this was an order of the Central Committee. The defendants, in their oral statements to the court, stress that this was the point on which the interrogators were most insistent, and on which they had been tortured for several hours. They said that the Barbadian officers were determined that they MUST all say that the NJM Central Committee issued such an order, and that this was communicated to the victims before they were shot. Fabian Gabriel in his evidence also put forward this version. But neither of the other two eye witnesses referred to Central Committee orders.
Where does the truth lie? There can be no doubt that all over the world, when experienced and ruthless interrogators are working under pressure to obtain a confession, the resort to physical violence is common, and it can be very effective. One of the most controversial cases in recent British criminal history is the Birmingham bombing trial, where the defendants have consistently alleged that such violence was meted out to them. In Grenada in November 1983 the pressure to get “evidence” on which to try the NJM Central Committee was intense. The defendants have consistently alleged that these tortures took place. In these circumstances, it would be quite wrong to rely on the "voluntary" statements as being reliable evidence of the truth.
INCONSISTENT WITNESSES
On several occasions during the trial, particularly when defendants were making their statements from the dock, they tried to point out to the jury that witnesses had said one thing in their evidence and another thing in their evidence to the preliminary inquiry. Mr. Justice Byron, although he must have noticed the differences, had not pointed them out when the witnesses gave evidence. When the defendants mentioned them, he ruled that the evidence given at the preliminary inquiry could not be referred to in open court.
In strict law the Judge was right in his ruling. In the adversarial system of justice it is for the defendants or their lawyers to question witnesses about inconsistencies between their evidence and any previous testimony. Had they been present, the defense lawyers could have probed these differences to see whether they were caused by perjury or by a lapse of memory. Whether in the absence of defendants and lawyers it was the duty of the Judge to explore such differences, is a matter which may have to be argued on the appeal. Certainly it was another way in which the tactics of the defense make it difficult to evaluate the strength and credibility of the evidence against them.
THE DEFENDANTS ADDRESS THE COURT
Many of the defendants exercised their right to make statements from the dock, some extending over many days.
CALLISTUS BERNARD (Abdullah) said that after the demonstration had over-run the military guards at the Prime Minister's house, he himself went to Fort Frederick. He described the general scene:
"There was a state of chaos, confusion and uncertainty. There was a state of paralysis among a number of key leaders of the Party and army who were around on that day. Some people were in a daze - what next, where do we move from here?"
He and other officers realized that the civilians had taken over the operations room of the army, the "nerve center of the armed forces, where all the security plans and documents of the army are kept". He learned that the civilians were being armed and some of the women soldiers had been stripped and beaten. He claimed that although the majority of the demonstrators were ordinary hard working and honest Grenadians among them were “spies, saboteurs, anti-social elements, CIA plants and instigators.” There was a big poster among the demonstrators saying "God Bless America". He continued: "Those elements within the crowd were instigating ordinary Grenadians to do a number of acts that they did not understand the consequences for and the deep and far reaching implications of. They wanted a clash between the army and people to create the conditions for invasion."
Abdullah spoke to Officer Cadet Mayers, who gave him the instructions which he had received from the day to day Commander of the Army, Lt Col Ewart Layne: “The orders were for us to move to restore order on Fort Rupert and to get the civilians off the Fort; to organize the defense of the headquarters. To make an assessment of the damage and to see what crisis measures could be taken to straighten the situation and put it back to normal.”
As mentioned earlier, he said that there was no thought that the unit would be shot at, but in fact it was ambushed. He described how, as a result of the ambush, Warrant Officer Raphael Mason and Officer Cadet Mayers had been killed, and another soldier Martin Simon was seriously wounded. He insisted that "we did not go on Fort Rupert with blood in our eyes. We went there as officers on a legal mission to restore order."
Finally, Lt Bernard made a brief reference to the circumstances of the execution:- "there was confusion, chaos ... soldiers had been stripped and all kinds of things had happened. It was in this atmosphere, in this context; it was in this way that a number of soldiers who went there to restore order, including myself, held a number of people prisoner, and it was in this atmosphere - in a situation of anger and rage - in this situation of chaos and confusion, that a number of people died at Fort Rupert. It was in this tragic situation of rage, confusion, problems. I think this is the most honourable position I can take at this time to explain the situation to Grenadians."
This was a very significant statement. If true, it indicated that the final decision was a military one, taken either by the officers on the ground or their immediate superiors. It does not indicate a decision taken by the Central Committee.
CHRISTOPHER STROUDE in his statement from the dock denied any part in the executions. He said that far from being responsible for the deaths, he had prevented a blood bath from taking place on the Fort, by disarming the soldiers when civilians arrived there and had started to tear off their clothes.
As to the executions Stroude said that he was outside after the Fort had been retaken, helping to get the fire brigade in. He told a soldier to move an armored car so that the fire truck could come up. He told Inspector Williams, the fire chief, to hurry up to prevent the fire from spreading. He then heard a gunshot from the upper level of Fort Rupert. He went upstairs and saw soldiers on the step with the body of Maurice Bishop. He was shocked because Maurice Bishop was the "hero" to many people.
EWART LAYNE in his statement from the dock, confirmed that he had given the orders to the soldiers to recapture the Fort. He said: "I decided to send the military unit to recapture the Headquarters of the army and restore order there. I was authorized to issue such instructions. The unit which left Fort Frederick, left with lawful orders on a lawful mission to recapture the Headquarters from civilians, and they left under my lawful instructions. He said that the Central Committee had nothing to do with the decision to send troops to recapture Fort Rupert. I was the only person, besides General Austin who was authorized to move forces at any time, place the army on alert or for combat battle." He described Cletus St Paul's evidence as a pack of lies.
HUDSON AUSTIN, commander of the PRA, agreed that it was Ewart Layne, rather than himself, who was in charge on the day. He said that he had been at Maurice Bishop's home until after midnight on 18th/19th October. Maurice Bishop had agreed to have a meeting with a special delegation of the Central Committee on the 19th October at 10.00 am. Hudson Austin said that he left with the understanding that everything would be settled the next day. When he came to Maurice Bishop's home on the next day as planned, he saw the crowd of demonstrators break open the gates and take him away. He believed that Bishop was going to talk to the people in the Market Square.
Hudson Austin said that he was at home on sick leave when a soldier drove up in an army jeep, hurriedly ran up the steps and handed him a note, which stated that the late Prime Minister had been killed and that he should report immediately to Fort Frederick. “I was shocked. I could not believe that note. I could not believe it. I left just as I was and went along in the jeep with the soldier to Fort Frederick.”
There he was told by Ewart Layne that when he dispatched troops to recapture the military installations, the Prime Minister and his colleagues were killed in cross-fire. He said that “I never in my wildest dream thought that any such thing as what occurred would have happened."
LEON CORNWALL said that he had stopped at Fort Frederick and had watched the demonstrators going towards Fort Rupert. He saw the three armored cars leave the fort. “After the armored cars left, I heard firing. What struck me was that the firing was somewhat prolonged. When I asked Layne about the firing, he told me armored cars had gone there to take control of the Fort." He said that when he got the information about the deaths he was "genuinely stunned". "I could not imagine how this could happen, how such a situation could take place. I still feel the pain and sorrow of what took place on Fort Rupert. It is something that has affected me seriously.”
JOHN VENTOUR said that he had no motive whatsoever to kill Maurice Bishop and his colleagues. Bishop and others of the victims were extremely close to him. “It will take several, many, many years for the psychological woes, emotional woes, to heal.”
He said that around two o'clock a trade union colleague came to his home in a distressed manner informing him that Bishop and others were injured, following shooting at Fort Rupert. "I was shocked. I could not believe what he was saying. I thought he was joking, but when I saw the distressed look on his face, I knew he was serious." Realizing that his telephone was out of order, John Ventour left home and headed for Fort Frederick. On his arrival he met Layne who told him the dreadful news of Bishop's death.
BERNARD COARD made a statement from the dock which lasted for over twenty-five hours, covering six court days. He reviewed the whole history of the crisis. He said that George Louison, Cletus St. Paul, Don Rojas and others had been with Maurice Bishop on the eastern European tour: "They pushed all kinds of lies and conspiracy into his head. They bombarded him for two weeks in eastern Europe. They did a job on him. They greatly aggravated the situation and turned it into a crisis of grave proportions which ultimately led to the tragedy."
Only parts of Bernard Coard's long statement are available, but passages from his account of the events of 19th October 1983 are worth quoting in full: “In my opinion, no event in this century has ever been more tragic and traumatic or devastating for the future of this country than the death of comrade Maurice Bishop. It is not only a stunning blow to the entire people of Grenada, one which 1, personally, along with most, if not all Grenadians, have not yet fully recovered from and may never recover from.”
"It is hard to describe the sense of paralysis I felt that day. It was deep." He referred to the widespread propaganda portraying him as wanting to take over the leadership, which had been published between 14th and 18th October, and he continued: “I was profoundly affected by this. The final straw was seeing the commotion of the chanting and placards of demonstrators outside my home and actually the smashing of-the gate and the taking away of comrade Bishop. I took the decision that the only way to put to rest the propaganda was for me to leave the country. I actually announced that decision to leave the country on the morning of October 19th."
He told his wife and children about the decision, and his wife began packing suitcases for their departure. The telephone lines were not working, and he could not make the travel arrangements. Because of the hostility of the demonstrators, security personnel took him and his wife from their home to Fort Frederick Army Headquarters for their own safety. While at Fort Frederick he heard shots from Fort Rupert, and later he was informed of Bishop's death.
“Memories of that afternoon and days and weeks to follow are tragic ones for me. What made that day even more than emotional trauma, was the fact that expectations were so high, that problems in the crisis were about to be resolved. Then came this series of stunning events.”
As to the events as a whole, Bernard Coard told the court that documents relating to cabinet meetings in Barbados while Tom Adams was Prime Minister would show the conspiracy between Adams and President Reagan to plan the massacre. He said that Washington and Bridgetown collaborated to ensure a shoot-out, violence and bloodshed between the Army and civilians. The conclusion of the trial would mark the beginning of the case, since at the end the defendants would ensure that an international team of jurists conduct a commission of inquiry to determine what really happened at the Fort.
"Far more important to me than my life is my reputation and character. You can kill our bodies but you would not be able to kill the truth for ever."
Bernard Coard referred to the role of Don Rojas, who he hinted had been planted on the island by the enemies of the Grenada revolution. He said that after Maurice Bishop had been freed, Rojas went to the telephone company and held workers there at gun-point, ordering them to disconnect the lines of several key government and military personnel, as well as army camps. He continued: "As more and more revelations unfold in the years ahead, many of the words I speak today would take on meaning for Grenadians. I believe that people will one day understand the full picture ... It is very important that we understand very carefully that the United States government and its agents did everything else on October ]9th but pull the trigger."
PHYLLIS COARD's statement from the dock has been published in full. She gave a detailed account of her movements on 19th October. She had been at home with her three children during the morning. After observing the demonstration her husband decided that “since he was being used as a scapegoat by those who wished to stir up divisions and confusion in the country, we ought to leave Grenada immediately. I
agreed with him. He asked me to pack suitcases for our children and ourselves and I did so.” She described how photographs and other possessions were packed: "In a free and fair trial I will put these photographs to a jury and ask them to judge whether a woman who is so obviously leaving the country that she even pack her most treasured photos of her husband and children, is going to stop off somewhere on her way out of the country and casually take a decision to kill people! What possible reason could there be for such an action? This is just one of many facts which makes nonsense of Cletus St. Paul.”
She said that she was taken by security officers in an unmarked car to Fort Frederick after being informed it was no longer safe to remain at her home. She said that in a free and fair trial she would call the driver who drove her to Fort Frederick. She said that the duty Officer's diary for Fort Frederick for 19th October would show that the evidence of Cletus St. Paul was a "complete perjury". “That is why the Americans have so far refused to return it!”
She arrived at Fort Frederick with a suitcase. Soon afterwards the news of the tragedy was given: “It was like one of those nightmares over which one has no control. I can remember clearly the feeling of disbelief I felt upon learning that comrade Maurice Bishop was dead. It was unreal. I could not believe it.”
She said that the feeling of unreality grew worse as she learnt of other deaths of people who were very close to her. She spoke of their children:- "One of the greatest cruelties that the American government has inflicted is their cruelty against the children of those who died, with this lie that their parents' friends killed their parents."
She said that for several hours she was unable to do anything. She was in a state of shock.
"The truth is that nothing in my entire life had prepared me for such a trauma as what took place on October 19th, 1983. To lose so many friends at one blow! To know what their families must be suffering, what they must be going through; to know that other women were injured, including some of my own two sisters, also that school children must have been injured or perhaps killed, as I saw some of them in the demonstration at Mount Weldale earlier on in the morning. To know also that soldiers were killed, and to know that some of them would have had young children, families dependent on them and so on. It was indeed a most horrifying, a most unbelievable situation."
Phyllis Coard's statement ought to be read in its entirety. It is a most eloquent statement of her own innocence, and of her concern for all the victims of the tragedy, particularly the children.
ANALYZING THE DEFENSE STATEMENTS
Apart from the statements of Callistus Bernard and Phyllis Coard, the statements of the accused are only available in patchy extracts. It may well be that other defendants, not mentioned above, put forward the reasons why they were innocent. In those circumstances it is impossible to make any definitive judgements about their credibility or truth. My impression on reading the material which is available is that while some defendants did not address some of the central issues, and while some gave explanations which are difficult to accept, in the case of others there is the ring of truth. Certainly the statements indicate that many of the defendants had a clear and complete defense to put forward.
CONCLUSION - WHAT WE MUST DO
The clear conclusion which comes from a study of this trial is that a campaign MUST be urgently waged to prevent those sentenced to death from being hanged. The campaign is justified for many reasons: (1) because the trial took place in an unconstitutional court; (2) because the jury which convicted them appeared to be affected by intense prejudice and hostility; (3) because the defendants, once their lawyers had withdrawn, were subjected to serious violations of their right to a fair trial; (4) because the case brought against them was contradictory and in the case of most of them extremely weak; (5) because the case against Central Committee members, in particular, is riddled with doubt; (6) because the evidence against the defendants was never tested or challenged; (7) because there is substantial reason for believing that the “confessions” which many of them made were gained by the use of torture; (8) because the motivation of the prosecuting authorities has been clearly to eliminate the leadership of the Grenadian revolution, irrespective of the guilt or innocence of the defendants.
In those circumstances there are a number of demands to be made:
First, that the Grenadian government must stop dragging its feet on the return to a constitutional court system, and must restore to the defendants their right to an appeal within the constitutional framework.
Second, that whether through the appeal process or otherwise, a new trial must be ordered in a constitutional court at which the evidence on both sides can be freely and fairly examined.
Third, that whatever the outcome of any appeal the barbaric death penalty must not be executed against any of those sentenced to hang.
No one should be in any doubt that the execution of the defendants in this case would be a massive victory for the forces of imperialism. They would have achieved by judicial means what they have been plotting for years - the final elimination and burial of the Grenadian revolution.
Editor’s Note: The accused in this case were never hanged because of international outcry.
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The Death Penaly in Jamaica
Amnesty International opposes the death penalty in all cases without reservation on the grounds that it is a violation of the right to life and the right not to be subjected to cruel, inhuman or degrading treatment or punishment as proclaimed in the Universal Declaration of Human Rights and other international human rights instruments. Amnesty International appeals for clemency for prisoners in danger of execution and works for the abolition of the death penalty throughout the world. In pursuance of these objectives it sent a mission to Jamaica in November 1983. The purposes of this mission were to convey Amnesty International's concern about the death penalty to government officials and to gather information and views on its abolition.
The mission comprised Dr Ezzat A. Fattah, Professor of Criminology, Simon Fraser University, Vancouver, Canada, and Martin Ennals, former Secretary General of Amnesty International, London, England.
The mission met His Excellency, The Most Honourable Florizel Glasspole, Governor-General of Jamaica, The Honourable Edward Seaga, Prime Minister of Jamaica, and The Honourable Winston Spalding, Minister of National Security and Justice. The mission also met Dennis Daly, President of the Jamaica Council for Human Rights and others.
* Amnesty International opposes the dealth penalty
Amnesty International's major concern in sending the mission was an increase in executions after 1980. This followed a period of more than four years (April 1976/August 1980) in which no executions had been carried out. During this period, parliament had set up a committee to consider whether or not the death penalty should be abolished. In January 1979 the House of Representatives voted by a narrow majority to retain capital punishment but recommended unanimously that all outstanding death sentences be reviewed. In February 1979 the Senate passed a resolution recommending that capital punishment be suspended for a further 18 months while another committee sat to examine the issue in greater depth. Although this second committee (The Fraser Committee on Capital Punishment and Penal Reform), referred to hereafter as the Fraser Committee) sat from June 1979 until March 1981, executions resumed in August 1980.
Twenty-four prisoners were executed between August 1980 and July 1984. Nearly all those executed had been sentenced to death either before or during the period in which executions were held in abeyance while parliament considered the issue. Most had spent long periods - of up to nine years - on death row.1 The executions were carried out despite a recommendation of the Fraser Committee in December 1981 that all death sentences passed before 31 March 1981 be commuted to life imprisonment.
At the time of the mission there were more than 150 prisoners under sentence of death in Jamaica. The last execution as of 23 July 1984 was on 3 July 1984.
The Jamaican Government expressed the view to Amnesty International's delegates that public opinion and the high rate of violent crime in Jamaica made total abolition of the death penalty impossible at the present time, but it expressed a willingness to consider moves toward limiting the offences for which the death penalty could be imposed. There are a number of factors regarding the death penalty in Jamaica which Amnesty International hopes the government will take into consideration in moving towards the abolition of the death penalty. These are described in this report, which was submitted to the Jamaican Government on 24 July 1984.
General background
The death penalty in Jamaican law
The death penalty in Jamaica is mandatory on conviction of murder. This is provided under Section 3(l) of the Offences against the Person Act, 1864, with amendments enacted in 1953 and 1958.
The death sentence may not be passed on a pregnant woman or on any person under 18 years of age at the time of the commission of the offence. These provisions are in keeping with Jamaica's obligations under the International Convention on Civil and Political Rights and the American Convention on Human Rights.
After a death sentence has been passed by the trial court (which sits with a judge and jury) the accused may apply within one month for leave to appeal to the Jamaica Court of Appeals. If the sentence is upheld, the prisoner may appeal to the Jamaica Supreme Court. The final court to which a prisoner may appeal is the Judicial Committee of the Privy Council in England.2 Sections 90 and 91 of the Jamaica Constitution of 1962 provide for the prerogative of mercy to be exercised by the Governor-General, acting on the recommendation of the Privy Council of Jamaica.3 The Privy Council usually reviews a case after the sentence has been upheld by the Jamaica Court of Appeals, although a decision will be deferred pending any further appeals. In cases where clemency is not granted, warrants for execution are issued by the Governor General, 15 days before the date set for execution. Execution in Jamaica is by hanging.
Conditions under which prisoners under sentence of death are held
All prisoners sentenced to death are immediately placed on conviction and sentencing in a special unit of St Catherine District Prison known as "death row". Unless their sentence is overturned on appeal, or commuted to a lesser sentence, prisoners under sentence of death are held on death row until their execution. Once a date for execution has been set, the prisoner is taken to a special cell on death row used exclusively by men whose execution is imminent. A number of prisoners have spent several days in this cell before receiving a stay of execution shortly before the date set for their hanging.
In 1975 a commission of inquiry (the Barnett Commission) strongly criticized conditions on death row, citing among other things the lack of provision for work, recreation or regular exercise for prisoners under sentence of death. Five years later, the Fraser Committee recommended that a work project involving men on death row be introduced as an experiment to see if this could have a rehabilitative influence. However, the Department of Corrections reportedly refused to agree to such a project. (In its report to the government in 1981 the Fraser Committee said it was "of the opinion that the policy whereby the men in the condemned cells are prohibited from doing any kind of work whatsoever, whether voluntary or otherwise, is wasteful of human resources.") Although some craft activities are available to prisoners under sentence of death, Amnesty International has been told that they spend long periods confined to their cells and, unlike most other prisoners, have no provision for regular work and few facilities for recreation, education or other rehabilitative programs. Although other prisoners in maximum security units are held in similar conditions in Jamaica, such facilities are denied to death row prisoners solely by virtue of their being under sentence of death.
Studies and debates on the death penalty in Jamaica
During the 30 years following the end of the Second World War until 1976 there were, on average, five executions annually in Jamaica. There then followed a period of more than four years - from April 1976 until August 1980 - in which no executions were carried out, although death sentences continued to be passed in murder trials. During the greater part of this period, until early 1979, executions were suspended while the question of capital punishment was under consideration by parliament.
Although executions were not formally suspended by act of parliament or government directive, the government has told Amnesty International that the Privy Council of Jamaica “suspended taking a decision as to whether or not the law should take its course”4 while the matter of capital punishment was before a parliamentary committee established in 1977. The committee submitted its final report to parliament in October 1979, and the suspension of executions continued until parliament had debated the matter in January l979. It appears that, in effect, executions were held in abeyance from the time of the last execution in April 1976, possibly in anticipation of the government's intention at that stage to put the matter before parliament. The Judicial Committee of the Privy Council in England, in a decision given in June 1982 on the case of a number of prisoners sentenced to death in the 1970s in Jamaica, stated that "political factors in Jamaica led to the execution of sentences of death being held in abeyance from April 1976 until early 1979 during a period of acute controversy over capital punishment". The result of this de facto suspension of executions was that a number of prisoners under sentence of death whose appeals were dismissed by the Jamaica Court of Appeals were not immediately issued with warrants for execution as would otherwise have been the case.
The Barnett Commission of Inquiry, 1975
Capital punishment in Jamaica had, indirectly, been the subject of an inquiry as early as 1975. The Barnett Commission (chaired by Dr Lloyd Barnett) was established on 31 December 1974 to examine the causes and circumstances surrounding incidents that occurred on 27 December 1974 in the high security wing of St Catherine District Prison, where death row inmates are held. The disturbances were described by the prison authorities as an "attempted mass break-out" and involved the taking hostage of a warder by a group of death row prisoners. The commission was assisted by a team of two psychiatrists, a psychologist and two social workers, who interviewed the 36 prisoners under sentence of death at that time.
The commission's report, which was submitted to the government in June 1975, described the very poor conditions prevailing in the institution at that time, particularly on death row. Prisoners on death row slept on the floor with only a mattress and a blanket and lived in generally unhygienic conditions, had little or no provision for work, healthy recreation or regular exercise, and were housed in a unit which was poorly ventilated and inadequately lit. There was no regular system for medical examination in the prison and no suitable provision for the treatment of the mentally ill. The commission found that two-thirds of the prisoners on death row were first offenders, and that 83 per cent came from poor socioeconomic backgrounds and had parental or other family problems. They also noted the inadequacy of legal representation in most of the cases and the lengthy delays in the legal process, expressing the view that "the long interval which separates imposition of sentence from execution imposes a severe strain on the condemned men, and is a major factor for tension in the prison". They also expressed the view that "the long delay in the execution of the death penalty after it has been pronounced constitutes cruel and inhumane punishment". The commission found that the conditions of their confinement and the "apprehensions that troubled the minds of the condemned men as to the manner of the execution of the death penalty" created a state of anxiety among death row inmates that was a major cause of the disturbances of December 1974. As well as being "in terror of the prospect of hanging" many of the prisoners told the commissioners that they believed they would be assaulted or even beaten to death on the way to the gallows. The commission found that "Fantasy is given credence, and the men's fears are reinforced and magnified by the physical beatings, taunts and threats they regularly receive from the warders."
The commission made a number of recommendations for speeding up the legal process and improving conditions on death row. It also stated in its report.
"This team questions fundamentally the use of hanging as a deterrent against murder, or a deterrent against violent crime. We feel that most men who commit the crime of murder can be adequately rehabilitated to lead normal productive lives. It is felt by this team that hanging as a punishment is regarded by most people as a revenge and does not serve the purpose for which it was devised."
Amnesty International does not know what measures have been taken to improve conditions on death row since the Barnett Commission's report was submitted to the government. In its report, the commission had noted that severe overcrowding was a major problem in the prison. Amnesty International does not know whether extra facilities have been made available to death row prisoners, whose number had grown from 36 at the time of the Barnett inquiry to more than 150 in July 1984.
Parliamentary debates on the death penalty
A House of Representatives Select Committee on National Security was formed in May 1977 to consider the question of capital punishment in the context of the general security of the country, with a view to recommending retention or abolition of the penalty. The committee reportedly decided without discussion in November 1977 that the law governing capital punishment should not be changed at that time. Opposition members of the Jamaica Labour Party (JLP) on the committee reportedly opposed this decision on the grounds that further study was needed. The cabinet decided to re-commit the issue to the committee in early 1978. A majority of the select committee, which reported to the House of Representatives in October 1978, again recommended retention of the death penalty in view of the serious problem of violent crime in Jamaica. However, the committee noted that it had not had the resources or expertise to carry out a thorough study of its effect as a deterrent to major crime, and that the expert assistance it had requested had not been provided. The Minister of Justice, the Honourable Carl Rattray, submitted a minority report in which he called for a period of further suspension of the penalty, pending a detailed study of the causes of violence and the effects of the death penalty on Jamaican society.
The report of the Select Committee led to a motion to retain the death penalty, which was introduced into the House of Representatives in January 1979. An amendment to the motion was presented by Dr Mavis Gilmour (a member of the opposition JLP) calling for a suspension of the death penalty pending a further study. The Prime Minister, Michael Manley, was among the 13 government members who supported this amendment, together with seven opposition members who were present for the vote. The amendment was defeated by a narrow majority of 23 to 20, with one abstention. The House of Representatives also voted by a majority of 24 to 19 to retain capital punishment. The vote was according to conscience, not party allegiance, and there were members from both parties who voted for abolition.
The House of Representatives then voted unanimously for a second motion recommending that the Governor-General and the Jamaica Privy Council review the cases of all 79 prisoners then on death row. It appears from reports of the debates that this resolution reflected a widespread concern in parliament at the length of time many prisoners had by then spent on death row.
Shortly after the debate in the House of Representatives, the Senate passed a resolution by a majority of 10 to 5 recommending that "capital punishment be suspended for a period of 18 months pending a detailed study and assessment ... of the sociological and psychological effect of capital punishment in Jamaican society". This resolution was identical to the amendment proposed by Dr Mavis Gilmour in the House of Representatives and was similarly based on the Minister of Justice's minority report to the Select Committee. In opening the debate in the Senate, the Minister of Justice stated that he had received a petition signed by some 2,000 individuals calling on the government to set up a committee to examine the justification for retaining capital punishment He stated that,
“Whatever action Parliament takes should be action supported by research and not action taken by emotionalism and not action of people floundering in the dark ... What we as Parliamentarians can do is to ask that capital punishment be suspended and a committee set up by persons who will dedicate themselves to find out what the true facts on this matter are so that Parliament can move from a platform to see whether capital punishment should still be allowed in the jurisprudence of the nation.”
Although the Senate resolution had no binding effect on whether executions would continue to be carried out, the Minister of Justice was quoted as saying that he hoped the motion would have an effect on the Governor-General and the Privy Council in exercising the prerogative of mercy in the cases of the prisoners then on death row.
Following the passage of the above resolution, the Minister of Justice appointed a non-parliamentary Committee on Capital Punishment and Penal Reform with the following terms of reference, "To consider and report within a period of 18 months whether liability under the criminal law in Jamaica to suffer death as a penalty for murder should be abolished, limited or modified and if so, to what extent, by what means and for how long and under what conditions persons who would otherwise have been made to suffer capital punishment should be detained and what changes in the existing law and the penal system would be required."
The committee, which was chaired by Sir Aubrey Fraser, a former appeal court judge, sat from June 1979 until early 1981. By this time there had been a change of government in Jamaica and the Honourable Carl Rattray was no longer Minister of Justice.5
The findings and recommendations of the Fraser Committee are discussed in Chapter 4 of this report. Meanwhile, warrants for execution were issued in the cases of a number of prisoners who had been sentenced to death before or during the period in which the death penalty was under consideration by parliament.
Executions in Jamaica 1979 / 1984
During the period in which executions were held in abeyance the number of prisoners on death row more than doubled, from 36 at the time of the Barnett Commission, to 79 in January 1979.
After the House of Representatives voted to retain capital punishment the Jamaica Privy Council met and decided to issue warrants for execution in a number of cases on which it had previously deferred taking a decision. In May and June 1979 warrants for execution were issued in the cases of Noel Riley, Anthony Forbes, Clifton Irving, Elijah Beckford and Errol Miller, who had been sentenced to death between March 1975 and March 1976; their appeals had been dismissed by the Jamaica Court of Appeals between late 1975 and early 1977. The five prisoners immediately lodged an appeal to the Jamaica Supreme Court on the ground that their execution in 1979 would amount to inhuman or degrading punishment in violation of Section 17 of the Jamaica Constitution by reason both of the length and circumstances of the delay since being sentenced. Their appeals were turned down in March 1980, but they were subsequently granted leave to appeal to the Judicial Committee of the Privy Council in England. The Judicial Committee did not issue a decision in the cases until June 1982.
The appeal lodged on constitutional grounds in the above cases caused a further delay in the execution of these prisoners. It also directly affected the cases, of a number of other prisoners on death row sentenced to death during the same period, for whom warrants for execution would not have been issued pending a decision by the Judicial Committee in Riley et al.
Meanwhile, on 27 August 1980, Conrad Dwyer became the first prisoner to be hanged since April 1976. He had been sentenced to death in 1977.
The execution of Conrad Dwyer caused considerable concern among members of the Fraser Committee, which was still sitting to consider whether there should be any change in the laws providing for the death penalty. Sir Aubrey Fraser, Chairperson of the committee, wrote to the Jamaica Privy Council on 10 October 1980, expressing "the profound concern shared unanimously by the Committee" with respect to the hanging of Conrad Dwyer. He stated in the letter that "At the time of its nomination, the Committee did not expect that any hangings would take place during the period prescribed in the terms of reference." Although noting that the Minister of Justice had not expressly stated that this would be the case, Sir Aubrey pointed out that " . . . it seemed to my colleagues and to me that this was a fair assumption to make having regard to the subject matter under consideration." The letter went on to request that "consideration be given to granting a stay with respect to all other executions" while the committee completed its work. The date for completion of the committee's report was subsequently extended from 31 December 1980 to 31 March 1981.
No executions were, in fact, carried out between the date of the above letter and 31 March 1981. Amnesty International does not know if this was as a consequence of the Fraser Committee's request that stays of execution be granted during this period. The Committee subsequently included among its recommendations to the government a provision that all sentences of death passed prior to 31 March 1981 be statutorily commuted to life imprisonment.
This recommendation had no effect on the cases of prisoners sentenced to death, however, and the following five prisoners were hanged between May 1981 and June 1982: Lloyd Collins, executed on 12 May 1981; Joseph Baker, executed on 17 November 1981; Sydney Campbell and Anthony Needham, executed on 16 March 1982, and Rudolf Smith, executed on 15 June 1982. All five prisoners had been sentenced to death before or during the period in which the Fraser Committee sat and there was a delay of from two-and-a-half to more than five years between sentence and execution.
Decision of the Judicial Committee of the Privy Council in England in the cases of Noel Riley and others
The applicants sought a ruling from the Judicial Committee of the Privy Council in England that "to execute the sentences of death passed upon them in 1975 and 1976 would now be, and indeed would have been at any time after the issue of the warrants in 1979, by reason both of the length and circumstances of the delay between sentence and execution, “inhuman or degrading punishment or other treatment”, in violation of the Jamaica Constitution. Section 17 of the Constitution provides that:
(1) No person shall be subjected to torture or to inhuman or degrading punishment or other treatment. (2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question authorize the infliction of any description of punishment which was lawful in Jamaica immediately before the appointed day.
The appeal was denied by a narrow majority of three to two, in a judgment delivered on 28 June 1992.
The majority opinion6 reviewed the history of the five cases and acknowledged that "Apart from the delays necessarily occasioned by the appellate procedures pursued by the applicants (of which it could hardly lie in any appellants mouth to complain) it is also a fact that political factors in Jamaica led to the execution of sentences to be held in abeyance from April 1976 until early 1979 during a period of acute controversy over capital punishment." It also stated that "Their Lordships fully accept that long delay in the execution of a death sentence, especially delay for which the condemned man himself is in no way responsible, must be an important factor to be taken into account in deciding whether to exercise the prerogative of mercy. But it is not for this Board to usurp the function allocated by Section 90 of the Constitution to the Governor-General acting on the recommendation of the Privy Council of Jamaica. The sole question for their Lordships' decision is whether the execution of sentence of death upon any of the appellants would contravene Section 17 of the Constitution."
The majority judgment based its rejection of the appeal on the provision contained under Section 17(2) of the Constitution - that nothing should be deemed to contravene the section to the extent that such punishment was already lawful in Jamaica at the time the constitution entered into effect. The majority judges found that because the sentence of death was mandatory under pre-existing law in Jamaica, and provided lawful authority for the detention of the condemned man in prison until such time as sentence was executed, then a delay in execution was per se lawful, and the length of the delay did not render the punishment less lawful. Thus, rather than considering whether such a delay of execution of a death sentence could in fact amount to cruel and inhuman treatment, the judges found that Section 17(2) automatically negated such a claim.
The two dissenting judges - Lords Scarman and Brightman found that the majority opinion was based on an interpretation of 17(2) that amounted to an "austere legalism" which they believed had been erroneously applied to these cases. The error, in their opinion, lay in the majority judges failure to recognize that the act of the state which was challenged in the proceedings was not the sentence of the court, but its execution after a prolonged delay. They noted that the primary purpose of Chapter III of the Constitution (containing the Jamaican charter of fundamental rights and freedoms) "is the protection of the individual against abuse of power by act of the State, whether the act be legislative, judicial or executive." They went on to state "It follows that the fact that in these five cases the death sentence when passed was in accordance with the law cannot be determinative of the appeals. The challenge is not to the judicial sentence but to the decision of the executive to carry it out at the time fixed and in the circumstances which had arisen." The dissenting judges pointed out that the delay in execution of the appellants' sentences arose from the exercise of an executive power (by which the Governor-General, acting on the rule of the Jamaica Privy Council, reviewed death sentences with a view to deciding on clemency) conferred not by a pre-existing law, but by the Constitution. They stated "Clearly, it would be an improper exercise of the power conferred by Sections 90 and 91 of the Constitution if it should result in subjecting a condemned man to inhuman or degrading punishment or treatment. Indeed, it would be a travesty of the law if powers intended to enable mercy to be shown in appropriate cases were so used." The only remedy against an abuse of power conferred by the Constitution, if found, law in the protective powers of Chapter III of the Constitution: in this case Section 17. The dissenting judges found that the appellants had, in their opinion,"proved that they had been subjected to a cruel and dehumanizing experience" and that "the execution of the respective death sentences in May and June 1979, against the background of the lapse of time since conviction, would have been 'inhuman treatment' within the meaning of subsection (1) of Section 17 and would not have been saved from being unconstitutional or illegal by subsection (2)."
Their Lordships further stated that "a period of anguish and suffering is an inevitable consequence of sentence of death. But a prolongation of it beyond the time necessary for appeal and consideration of reprieve is not. And it is no answer to say that the man will struggle to stay alive. In truth, it is this ineradicable human which makes prolongation inhuman and degrading. The anguish of alternating hope and despair, the agony of uncertainty, the consequences of such suffering on the mental, emotional and physical integrity and health of the individual are vividly described in the evidence of the effect of the delay in the circumstances of these five cases . .
In arriving at the above opinion , the dissenting judges reviewed not only the appellants' actual circumstances, but also decisions in a number of other countries in which the courts had "recognized the inhumanity and degradation a delayed death penalty can cause”.7 The judges also referred to a case previously reviewed by the Judicial Committee of the Privy Council in England (Abbott vs. the Attorney General of Trinidad and Tobago, 1979) in which the Judicial Committee recognized that inordinate delay might mean that the taking of a condemned man's life would not be "by due process of law".
They concluded that: "It is no exaggeration, therefore, to say that the jurisprudence of the civilized world, much of which is derived from common law principles and the prohibition against cruel and unusual punishments in the English Bill of Rights, has recognized and acknowledged that prolonged delay in executing a sentence of death can make the punishment when it comes inhuman and degrading."
The dissenting judges summed up their opinion with the following paragraph:
"We answer, therefore, the question as to the meaning and effect of Section 17(l) as follows. Prolonged delay when it arises from factors outside the control of the condemned man can render a decision to carry out the sentence of death an inhuman and degrading punishment It is, of course, for the appellant for constitutional protection to show that the delay was inordinate, arose from no act of his, and was likely to cause such acute suffering that the infliction of the death penalty would be in the circumstances which had arisen inhuman or degrading. Such a case has been established, in our view, by these appellants. Accordingly in our opinion these appeals should be allowed."
Amnesty International has considered it worth summarizing some of the arguments in what was a detailed and complex judgment, particularly the minority opinion of Lords Scarman and Brightman, who addressed the issue in far greater depth than did the majority Lords. As shown, the appeal was lost by the narrowest of margins and the vigor of the dissent reveals the controversial nature of the issue. It is also noteworthy that the majority decision, while rejecting the appeal on what amounted to a technicality, found that a long delay in the execution of a death sentence for which the condemned man was in no way responsible, must be an important factor in the exercise of the prerogative of mercy.
Shortly after this decision a British barrister, Geoffrey Robertson, wrote in the Guardian newspaper in the United Kingdom on 4 September 1982 that there had been an established practice in Great Britain of commuting the death sentence in the event of any judicial disagreement. He went on to state that this convention was expressly accepted by the British Home Secretary in a leading case involving a disputed judgment in 1960, and that the Jamaican authorities had also followed this practice in the cases of a divided Privy Council decision in 1974. Nevertheless, clemency was not granted in the cases of Noel Riley and the other appellants in the above case.
Executions after June 1982
The five appellants in the above case - Noel Riley, Anthony Forbes, Clifton Irving, Elijah Beckford and Errol Miller- were executed on 7, 9 and 16 September 1982, after spending more than six years on death row. Two other prisoners, Vincent O'Sullivan and Enos Henry, were also executed on 19 September 1982. These last two prisoners had been sentenced to death in 1976 and had lost their appeals to the Jamaica Court of Appeals in early 1977, that is, in the early part of the period in which executions were suspended. Eight prisoners were executed in 1983: Lloyd Aitken and Anthony Hewitt, executed in May 19 83; Junior Whyte and Stafford Pyne, executed in June 1983; Clive Hayles and Ransford Thomas, executed in July 1983 and George McLeish and Fernando Marks, executed in August 1983. As with the other prisoners named above, all had been sentenced to death and/or had exhausted their normal appeals during the period in which executions had been held in abeyance (Ransford Thomas was sentenced to death in 1974, the others between 1975 and 1978).
Two prisoners - Allen McKenzie and Nathaniel Lewis - were executed on 21 February 1984. They had been sentenced to death in November 1980 and March 1981- respectively. Derrick Wallace, convicted of murder in June 1981, was executed on 3 July 1984.
A total of 24 prisoners have been hanged in Jamaica since executions resumed in August 1980. The rate of executions between September 1982 and July 1994 (when 18 prisoners were hanged) is far higher than in any similar period in Jamaica since the war. The executions were carried out despite a recommendation in December 1981 made by the Fraser Committee (established by the former Minister of Justice in 1979) that all death sentences passed before 31 March 1981 - the date to which the Committee sat - be statutorily commuted. As of 23 July 1984 there were more than 150 prisoners under sentence of death in Jamaica, of whom some 60 were sentenced prior to March 1981.
Some further information on four prisoners executed between 1981 and 1983
i) The case of Stafford Pyne. Amnesty International had appealed for clemency in the cases of all those executed after August 1990. In the case of Stafford Pyne, Amnesty International also referred to a psychiatric report in which the prisoner was said to be suffering from mental illness at the time of his execution.
Stafford Pyne was convicted of murder in May 1977 and his appeal was denied in November 1977. He was examined by a psychiatrist on 25 June 1983, shortly before his execution after six years on death row. In his report, the psychiatrist made reference to a number of previous medical reports both before and during his imprisonment, in which Pyne had been found to be suffering from symptoms of schizophrenic illness. Stafford Pyne had, in fact, been treated in the Bellevue mental hospital as early as the age of 14. He told the psychiatrist that, while awaiting trial in 1977, he had also been taken to Bellevue hospital for treatment. During the1983 examination, the psychiatrist noticed features of anxiety and depression in keeping with the approaching execution. However, he also found evidence of schizophrenic disturbance in the form of thought disorder and paranoid thinking. He concluded that “It is my opinion, based on the foregoing, that at the time of my examination on 25 June, Stafford Pyne was suffering from severe psychiatric disturbance, namely schizophrenic illness. A review of his history suggests he had a basic liability to suffer from schizophrenic disturbance in response to appropriate stresses.” In discussing mental illness in relation to the death penalty, several United Nations (UN) surveys have pointed to the widespread recognition of mental illness or insanity as a ground for exclusion from imposition or execution of a death sentence. In a series of “safeguards guaranteeing protection of the rights of those facing the death penalty”, adopted by the UN Economic and Social Council in May 1984, there is included a provision that the death sentence shall not be carried out "on persons who have become insane" (ECOSOC Resolution 1984/50 of 25 May 1984).
Although Stafford Pyne had an early history of mental illness, and was reportedly found to be suffering from symptoms of mental illness shortly after his arrest, Amnesty International does not know whether this was a factor that was introduced at his trial.
ii) A letter to Amnesty International from a prisoner on death row dated August 1979. Fernando Marks was executed in August 1983. “My Dear Sir,
My greetings and best wishes to you and all the other members of your organization. I would like also to congratulate you all for what you are doing and what you have done so well. The significance of my missive to you is that, I am an inmate presently on death row, for the murder of Alex Parker, and one who has lost my first appeal, and now pending the decision of the Jamaica Privy Council. I hereby request that as a humanitarian, noble and highly recognizable organization, you write to the Jamaica Governor-General and Privy Council asking that my death sentence be commuted to life & etc. I hereby promise that you will hear of my deeds in the fields of rehabilitation, with the launching of my poems, paintings, and craft, and in future send you some. I was before a printers' proof reader and compositor. Presently I am hoping to have two songs released by 5 Star Music Masters, Boston, Massachusetts, USA. I pray your help will be successful on my behalf. And may God bless and guide you all. Yours truly, Fernando Marks.”
iii) Extract from a news release issued by the Jamaica Council for Human Rights on 11 May 1981, shortly before the execution of Lloyd Collins. (Lloyd Collins was hanged on 12 May 1981).
“Lloyd Collins, 26 years old, formerly resident in Bull Bay, father of three children, will face the hangman tomorrow morning at the St Catherine District Prison. Collins will hang although there is significant doubt about his guilt. The sole witness whose evidence linked Collins to the scene of the crime, was only able to claim that the voice of one of the men he saw, sounded like Collins. The way in which Collins' trial was conducted gave rise to sufficient doubt among the three judges hearing his appeal, to cause one of them to disagree with the final judgment that his conviction should be upheld.
Petitions were made on Collins' behalf to the Privy Council, asking them to exercise the prerogative of mercy, in light of the questionable nature of the evidence which convicted him. They also pointed out that the Ministerial Committee on Capital Punishment is in the final stages of preparing its report. They stated that in many countries, capital punishment is suspended during such investigations.
The Privy Council, however ... have instructed that the law should take Its course. So Lloyd Collins, a mason by trade; a young man to whom more than one hundred citizens from Bull Bay asked that mercy be shown; a young man who taught himself woodcarving during the over four years of his imprisonment, will pay the ultimate price for the first offence he ever committed.”
iv) Extract from a news release issued by the Jamaica Council for Human Rights dated 15 March 1982 on the case of Anthony Needham, who was executed on 16 March 1982.
"Anthony Needham earned a Scholarship to attend Kingston College in 1969. In 1973 he was forced to leave school due to financial difficulties being experienced by his parents.
Despite leaving school prematurely, Needham did his National Youth Service in 1974. His behavior was such that his supervisor has also petitioned the Governor-General and the Privy Council for Mercy.
Charged with the killing of his girlfriend in 1976, Needham was granted bail until the end of his trial in 1977, during which time he was faithful to the terms of his bail and received instructions in welding in his quest for knowledge and the means of economic independence.
Evidence at the time disclosed that the deceased was unfaithful to Needham, he had been the subject of ridicule by his associates, all of which contributed to his extreme action, and the chief witness was the person with whom the deceased had been unfaithful.
Needham had never previously been in conflict with the Law. He was 18 years and one month old at the time of the offence. Had he been less than two months younger the sentence of death could not have been passed.
The Council was therefore of the view that based on the above considerations, this was a fitting case in which to demonstrate the magnanimity of the State.
The infliction of the death penalty cannot in this case serve as a deterrent or otherwise further the cause of justice."
The Fraser Committee on Capital Punishment and Penal Reform
The Fraser Committee on Capital Punishment and Penal Reform which was established by the Minister of Justice in June 1979, was mandated: "To consider and report within a period of eighteen months whether liability under the criminal law in Jamaica to suffer death as a penalty for murder should be abolished, limited or modified and if so, to what extent, by what means and for how long, and under what conditions persons who would otherwise have been made to suffer capital punishment should be detained and what changes in the existing law and the penal system would be required."
The committee was chaired by H. Aubrey Fraser, Director of Legal Education at the Norman Manley Law School and a former judge of the Trinidad and Tobago Supreme Court. The six other members of the committee were an attorney-at-law, a psychologist, a social educator, a Methodist priest, a journal editor and a psychiatrist (the latter resigned from the Committee in June 1980). The committee appointed a research team, headed by Delroy Chuck, a lecturer in law and criminology at the University of the West Indies.
The committee considered data from three sources: research carried out by the research team; submissions made during public and private sittings; and an extensive body of individually submitted or published material. The committee also visited death row in St Catherine Prison, inspected the facilities and spoke with prisoners under sentence of death.
The committee stated in its report that it was “...of the opinion that death as a penalty for murder should be abolished”. However, it concluded that “... a proposal to wholly abolish capital punishment would not now be generally accepted by the Jamaican public, having regard especially to the state of violent crime in the society". It recommended that moves toward abolition of the death penalty be undertaken "as a part of a comprehensive system of penal reform which should commence without delay".
The committee went on to recommend as an immediate first step that: "All sentences of death imposed prior to December 31, 1980, which was the date originally prescribed for submitting the Committee's report, or alternatively, prior to March 31, 1981, to which time it was extended, should be statutorily commuted to sentences of life imprisonment"
The committee noted that as of 31 March 1981 there were 97 men on death row, of whom 54 had been sentenced to death during the period 1973/1978 and the others during the period in which the committee sat.
The committee also recommended that the present application of the death penalty be modified to restrict it to a limited class of homicide. It recommended that, for an interim period of five years, capital punishment should be retained as a penalty for murder only with respect to murder committed by use of a firearm or explosive. As a guideline in this respect, it recommended that the death sentence be imposed only on the person or persons found guilty of having actually used or possessed the firearm or explosive - or the principal in the first degree - and should not be imposed on unarmed accomplices. The committee further recommended that prisoners committed to prison for the offence of murder be required to undertake productive and rehabilitative work, part of the proceeds of which should go toward compensation for the dependents of the victims of murder.
Findings of the research team
It is worth summarizing some of the findings of the research team which assisted the Fraser Committee. As the team itself acknowledged, some of its research was limited by a lack of comprehensive data on the murder cases or homicide statistics studied. Also, its observations regarding prisoners on death row were based to a large extent on the prisoners' own subjective accounts of the various factors involved in their crimes, although the team was able to cross-check much of this information from court records of their cases. Despite such limitations, their report gives a valuable insight into the types of killings from which murder prosecutions have resulted and how the criminal justice system has dealt with such cases.
The team interviewed 40 of the 81 prisoners on death row in August and September 1979.8 They studied the socioeconomic background of the prisoners and, from court records of their cases, listed the types of crimes for which they had been sentenced to death.
The team also made a survey of the patterns of murder in Jamaica during the previous 20 years by studying inter alia the cases of recorded killings, prosecutions for murder and conviction rates.
Types of murder and weapons used in cases of 40 men on death row in 1979
The research team found that in 12 cases (30 per cent of the sample) the condemned prisoners were convicted of murder committed during the course of a robbery; these were also the cases in which guns were most often used in the commission of the murder, and accounted for 10 of the 12 cases. However, in nine of the 10 robberies in which guns were used, the prisoners on death row had been charged as accomplices only in the murder and had not discharged the firearm that killed the victim. They were convicted on the same basis as the principal perpetrator of the murder. The statistics do not show how many of the condemned prisoners were also carrying firearms during the commission of the robbery.
The second most common type of crime was murder committed during or after a fight, quarrel or dispute. These accounted for 11 of the 40 cases (or just under 30 per cent of the sample). The fatal injuries in these cases were inflicted with what the research team called "traditional instruments of murder": knives, batons, cutlasses and, in one case, a bottle. One of the prisoners falling within this category was convicted as an accomplice in a Fight. The team reported that “Some of these cases are consistent with slight provocation by the victims, interference with the offenders' personal property by the victims and other contributing activities by the victims which caused the offender to react in the manner which caused death.” (Amnesty International does not know how far this statement was based on the prisoners' own accounts or from information gained from court records of the trials.)
In a further six cases, the circumstances in which the murder was committed were classified by the team as being due to "emotional factors". The exact circumstances in which this type of crime was committed were not revealed in the report. However, it was recorded that, of the total sample of 40 cases, seven of the murder victims were the wives or girlfriends of the offender. Amnesty International assumes that some of these victims fell either under this category or under the above category of murder committed during a quarrel or dispute.
Four of the 40 cases (10 per cent of the sample) involved killings during gang warfare or political conflicts, the latter also usually between rival gangs. Guns were used in three of these four cases.
In the remaining seven cases, either the type of crime or the murder weapon was unknown.
From the above statistics, the research team distinguished two broad categories or types of murder. They found that the majority of gun murders - those committed during the course of a robbery, and the smaller sample of rival gang/political conflicts - were carried out by persons operating in a group (this was borne out by the large number of accomplices among the condemned men in the sample). The team noted that the offenders in this type of crime "are very often members of juvenile gangs, or members of a clique associated with committing crimes for a specific purpose . . . " and that they "prove themselves by engaging in crimes which bring them status and recognition by the peer groups". The team noted that this type of offender rarely acted alone and that " . . . as sociologists and psychologists have pointed out, these offenders would rarely pursue this form of career without direct or indirect cooperation of others." Many of the crimes falling under this category were planned rather than spontaneous.
The second broad category of murder defined by the team, comprised most of the killings committed during a quarrel or fight (as distinguished from gang/political conflicts) and those due to “emotional factors”; these were what the research team described as "individual crimes". They found that most of the offenders in this category were influenced by personal and emotional factors, and the crimes were usually committed on impulse. The type of weapons used in this category of murder were usually those most readily available. (Elsewhere in their report, the team remarked that a restriction in the widespread practice of carrying knives might reduce this type of killing.) These crimes also accounted for most of the cases in which the victim was known to the offender (of the total sample of 40 cases, 17 of the murder victims were known to the murderer). Taken together, murders arising from disputes, quarrels or fights, and those attributed to "emotional factors", accounted for just over half of the crimes for which the prisoners in the sample had been sentenced to death.
Patterns of murder in Jamaica since 1964
From a study of prosecutions for murder taken at four-year intervals between 1964 and 1976, 1979 the research team found that there had been an increase in the number of prosecutions for murder committed with guns. However, they did not find that an overwhelming number of gun murderers were prosecuted. On the contrary, they found that the increased rate of prosecutions for gun murders did not match the very high increase in the incidence of this type of crime during the 1970s (when there was a dramatic increase in both armed robberies and political/gang killings). In fact, their statistics showed a particularly low rate of apprehension and prosecution for this type of killing. This, they found, was partly accounted for by the fact that many of the perpetrators were themselves killed in gun battles between gangs or in shoot-outs with the police. There was also evidence of silence and intimidation at the local level, which inhibited efforts to bring to justice those responsible for political killings in particular. The fact that some of these crimes were planned with precision might also have made apprehension more difficult
Taking the period as a whole, the team found that the overwhelming number of murders which resulted in prosecutions were those arising from quarrels or rights between friends, neighbours or associates; private domestic quarrels or business disputes. Together, these accounted for some 60 per cent of all murder cases prosecuted during the period reviewed. The team found that these killings arose largely from spontaneous reactions to a situation in which emotions were aroused and the killers acted on impulse. The team observed that “it is unlikely that any penalty will deter these actions . . .. They are situational offences which occur because of the impulsive reaction of the offender”. Their observations appeared to be confirmed by the victims of murder: they found that acquaintances, friends, associates and colleagues were the main victims of murder, closely followed by wives, common-law spouses, girlfriends and close relations. In cases prosecuted, knives remained the most common murder weapon throughout the period covered. The team commented that the detection rate tended to be higher with this sort of crime, precisely because of its spontaneous nature and the fact that the murderer was known to the victim.
The team noted that the above statistics were taken only from a record of cases prosecuted, and that the acquittal rate was probably higher in cases involving fights or disputes with associates or relatives. Nevertheless, a significant proportion of prisoners on death row had been convicted of this type of crime, according to the research team's findings.
The team went on to look at the statistics for criminal homicide cases recorded by the police from the years 1962/1978. They noted that these figures did not give a true picture of the actual murder rate in Jamaica at the time, since not all killings could be classified as murder in the legal sense.10 They thus compared the number of cases reported to the police with, first, the "clear-up" rate (also taken from police records) and, secondly, the number of prosecutions for murder(taken from the Director of Public Prosecutions' office) over the same period. They found that there had been a progressive decline in the percentage of all cases cleared-up or prosecuted, although the number of reported killings of all types had increased greatly over the period covered. For example, the clearance rate had dropped from 90 per cent in 1962/1966 to 60 per cent in 1973/1978, whereas the number of killings had risen from 341 cases in the earlier period to 1,845 in 1973/1978. The prosecution rate had also dropped from 71.6 per cent (1964/1968) to 32.2 per cent (1974/1978).
The research team stated that "The impact of the cleared-up figure is of extreme importance. Criminologists now recognize that the most important factor in deterring crime is the surety of being caught"
The team also looked at figures giving the outcome of murder cases prosecuted. They found that convictions for murder averaged only about 25 percent throughout the period reviewed(from 1964). A number of these prosecutions resulted in convictions for a lesser offence, such as manslaughter. There was also a high acquittal rate of 38.4 per cent in murder trials from 1974/1978.
They further found that 30 per cent or less of convicted murderers were actually hanged. Some had their sentences overturned on appeal, others were granted clemency and had their sentences commuted to life imprisonment by the Governor-General and the Jamaica Privy Council.
The team suggested that a number of factors apart from the severity of crime and degree of guilt of the offender could have affected the outcome of the trial, including the socio-economic background of the defendant and the quality of his defense. They quoted a passage from material submitted by Amnesty International to the Fraser Committee which, while not referring specifically to Jamaica, made the following general comment:
"When the ability to obtain good legal representation becomes one of the most important factors in determining the outcome of a trial, questions of race, class and poverty can have a considerable effect upon the administration of justice. The wealthy, the politically well-connected and members of dominant racial and religious groups are far less likely to be executed for offences of comparable severity than are the poor, supporters of the political opposition and members of unpopular racial and religious groups."11
They also cited the findings of statistics into types of offender that had received the death penalty in California, United States, during the 1950s and 1960s, according to which 42 per cent of blue collar workers charged with first degree murder were sentenced to death whereas only five per cent of white collar workers so charged received the death penalty.
The team found that their own assessment of the background of the 40 men on death row in August and September 1979 appeared to show similar results, noting that "They were men from low socio-economic backgrounds, low job stability, and. mainly men who wore dreadlocks at the trial. The effect of these extraneous factors on the juries' perception of the culpability of the murder charge, cannot be underestimated."
Characteristics of men on death row in August and September 1979
From their interviews with 40 men on death row in August and September 1979, the research team noted the following:12
a) In accord with the findings of the Barnett Commission, the research team found that men on death row were mainly from the lower socio-economic strata. They grew up in neighbourhoods characterized by frequent violence, gang warfare, and political conflicts. The dominant faith among the condemned men was found to be the Rastafarian religion. They wore their dreadlocks throughout the court procedures until they were shaved on entering prison. Many of them believed that their appearance caused the judge and jury to be biased against them. They were convinced that their failure to get proper justice was due to their way of life, their style of dress, their manner of speech, etc., to the fact that they were different from the men in the jury box or others who participated in the trial. Many of them expressed the belief that the police had framed them, and several claimed that they had been wrongly identified.
Of the 40 men interviewed, four were completely illiterate and 21 were semi-illiterate who dropped out before finishing primary school and were barely able to read and write. Thirty-one were characterized by the team as unskilled and only nine were deemed skilled or semi-skilled.
Only 10 of the men had previous criminal convictions recorded against them. Four of the 10 had only single convictions prior to their death sentence.
b) Thirty-three of those interviewed were represented by legal aid lawyers. Only four retained private lawyers while the information was not available on the remaining three. The team found that many legal aid lawyers appointed in murder cases spent very little time investigating their clients' defense and many never, discussed the case with their client in any great detail; witnesses for the defense often did not turn up to give evidence, frequently because they were not notified".13
The research team also observed that many of the death row inmates inter-viewed displayed scars, bruises and other signs of injury, which they alleged had been inflicted by police officers. A number of the prisoners alleged that they had been beaten in order to elicit confessions.
The team also cited the assertions of innocence made by all of the prisoners it interviewed, and pointed to the possibility that at least some of these assertions might be true.
The Prerogative of mercy
Although executive clemency cannot eradicate all defects in the administration of the death penalty, and is no substitute for justice at the judicial level, it can play a crucial role in mitigating the rigidity of a death sentence, particularly mandatory sentences.
The power of executive clemency in Jamaica is vested in the Governor-General, acting on the recommendation of the Privy Council. Section 91 of the Jamaica Constitution provides that:
1 . Where any person has been sentenced to death for an offence against the law of Jamaica, the Governor-General shall cause a written report of the case from the trial judge, together with such other information derived from the record of the case or elsewhere as the Governor-General may require, to be forwarded to the Privy Council so that the Privy Council may advise him in accordance with the provisions of section 90 of this constitution.
2. The power of requiring information conferred on the Governor General by sub-section (1) of this section shall be exercised by him on the recommendation of the Privy Council or, in any case in which in his judgment the matter is too urgent to admit of such recommendation being obtained by the time within which it may be necessary for him to act, in his discretion.
Section 90 of the Constitution provides that .
1. The Governor-General may, in Her Majesty's name and on Her Majesty's behalf - a) grant to any person convicted of any offence against the law of Jamaica a pardon, either free or subject to lawful conditions; b) grant to any person a respite, either indefinite or for a specified period, from the execution of any punishment imposed on that person for such an offence; c) substitute a less severe form of punishment for that imposed on any person for such an offence; or
d) remit the whole or part of any punishment imposed on any person for such an offence or any penalty or forfeiture otherwise due to the Crown on account of such an offence.
2. In the exercise of the powers conferred on him by his section the Governor-General shall act on the recommendation of the Privy Council.
Workings of the Privy Council
After a death sentence has been upheld on appeal, the case is reviewed by the six members of the Jamaica Privy Council. Each member receives a file on the case, with notes of the evidence, report of the trial and appeal, and a separate report from the judge who passes sentence. There is some delay in preparing a case for the Privy Council. As the list of prisoners in Appendix I shows, appeals to the Jamaica Court of Appeals are usually disposed of within about one year after sentencing but, even if no further appeals are lodged, the case may not be reviewed by the Jamaica Privy Council for some time after this. Once the privy councillors have looked at a case, the council meets and discusses the matter. The Governor-General takes part in these discussions, but is only called upon to vote in the event of a tie. In keeping with the entirely discretionary nature of executive review, all the deliberations are in private and no reasons are given for the decisions taken. If the Privy Council gives a negative decision in the case, a warrant for execution is issued. If the prisoner then indicates that he intends to lodge a further appeal - for example to the Judicial Committee of the Privy Council in England - a stay of execution will be granted.
Reasons for Granting Clemency
Amnesty International tried to discover what criteria, if any, were used by the Privy Council in deciding whether or not to recommend clemency in death penalty cases. It found that the Privy Council does not have a clear set of written guidelines for the exercise of clemency in such cases.
His Excellency the Governor-General told Amnesty International that clemency would always be granted in the case of a woman sentenced to death, and in cases where there was doubt about the prisoner's guilt. His Excellency also indicated that murders arising out of domestic jealousy and those where there was evidence of mental illness were cases in which clemency would usually be granted. The Governor-General also stated that the Privy Council did take account of lengthy periods spent on death row but would be disposed to take this as grounds for granting clemency only if the delay as not provoked by the prisoner's own lawyer in lodging appeals for the purpose of prolonging the prisoner's life.
In Amnesty International's view, it would certainly be perverse to penalize a prisoner on this last ground: indeed, a lawyer would be liable to an accusation of gross negligence if he or she did not pursue all legal avenues available to the prisoner which might prevent his execution, and the granting of leave to appeal in a case indicates at least prima facie grounds for judicial challenge to the sentence; some delays might also have been occasioned by inadequacy of defense counsel, at the trial or at a later stage of the appeal procedure.
Amnesty International does not know why clemency was not granted in the case of Stafford Pyne (where there was evidence of mental illness, even before his trial) or in the cases of Noel Riley and five others (executed in June 1982 after six to seven years under sentence of death, a crucial part of which time was caused by the de facto suspension of executions). These executions would appear to be at variance with some of the criteria reportedly considered by the Privy Council in recommending clemency.
In the case of Riley and others, Amnesty International finds it disturbing that clemency was not granted both in view of the narrowly divided judgment of the Judicial Committee of the Privy Council in England and the majority opinion that a long delay for which the condemned man is in no way responsible must be an important factor in exercising the prerogative of mercy. Amnesty International finds that particularly regrettable, in view of the fact that the appeal itself had occasioned a further prolongation of the period spent under sentence of death, not only in the cases of the five appellants, but also in the cases of most of the 10 other prisoners executed between September 1982 and August 1983, who had been sentenced to death during a similar period. Since the appeal in the case of Noel Riley and others concerned a matter of constitutional law of crucial and direct relevance to these cases also, the prisoners themselves could hardly be held responsible for the further delay (from 1979 to 1982) in the execution of their sentences pending this appeal.
The Governor-General told Amnesty International’s delegates that he views his role and that of the Jamaica Privy Council as “applying the law of murder as it stands unless there are exceptional extenuating circumstances” and believes that, otherwise, the law should take its course. As stated above, the Privy Council in Jamaica does not have a clear set of written guidelines for exercising clemency, and decisions appear to be taken largely on an ad hoc basis.
It is worth noting that some other countries have laid down clear criteria for the consideration of clemency in death penalty cases. Those used by the British Home Secretary prior to abolition are cited in the following extract from the Report of the Royal Commission on Capital Punishment in the United Kingdom (1953). It is possible that some of these factors may have been present in cases in which clemency has been denied in Jamaica:
"Apart from three classes of case we have mentioned in which it has long been the established practice to recommend the commutation of the death penalty,14 certain types of murder are recognized as needing specially close scrutiny to see whether there are such extenuating circumstances as would justify a reprieve. Among such cases are unpremeditated murders committed in some sudden excess of frenzy, where the murderer has previously had no evil animus towards his victim, especially if he is weak-minded or emotionally unstable to an abnormal degree; murders committed under provocation which, though insufficient to reduce the crime to manslaughter, may be a strongly mitigating circumstance; murders committed without intent to kill, especially where they take place in the course of a quarrel; murders committed in a state of drunkenness falling short of a legal defense, especially if the murderer is a man of hitherto good character, and murders committed by two or more people with differing degrees of responsibility ...
Finally there are three rare classes of case in which reprieves may be granted. One is where the Home Secretary feels that despite the verdict of the jury there is a "scintilla of doubt" about the prisoner's guilt. Secondly ... it has occasionally been felt right to commute the sentence in deference to a widely spread or strong local expression of public opinion, on the ground that it would do more harm than good to carry out the sentence if the result was to arouse sympathy for the offender and hostility for the law. Lastly, it is occasionally, though very rarely, necessary to commute the sentence if the physical condition of the prisoner is such as to give ground for thinking that it could not be carried out expeditiously and humanely."
Statutory commutation of death sentences
Both the Prime Minister and the Minister of Justice were clearly concerned by the length of time many prisoners had spent on death row. However the Minister of Justice stated that the recommendation by the Fraser Committee that death sentences passed prior to March 1981 be statutorily commuted would be unconstitutional, since the prerogative of mercy was vested exclusively in the office of the Governor-General and the Jamaica Privy Council. However, the Governor-General himself expressed the view to Amnesty International that Parliament was sovereign in all matters regarding prisoners and that, although executive clemency rested in the hands of the Governor-General, there would be nothing unconstitutional in Parliament passing a bill either to restrict application of the death penalty or to commute existing sentences.
Following its mission to Jamaica Amnesty International wrote to the Minister of Justice on 5 November and stated inter alia:
"In the light of our conversation with the Governor-General, we are convinced that Parliament is sovereign in all of these areas under discussion. It follows, therefore, that any decision taken by Parliament with regard to the commutation of sentences of those awaiting execution, or limiting the crimes for which the penalty of death is applicable, would be constitutional. . . ".
Amnesty International also stated in its letter that:
“...a decision by the Cabinet to restrict the offences for which death is the penalty would be influential in the deliberations of the Privy Council without impinging upon their integrity and independence.”
Some general considerations on the death penalty
The death penalty as a deterrent to crime
One of the most common arguments for retaining the death penalty is that it acts as a deterrent to murder. The state of violent crime in Jamaica was one of the main reasons given by the House Select Committee for recommending retention of the death penalty in 1978. The high incidence of gun murders was a factor which influenced the Fraser Committee in avoiding a recommendation to abolish the death penalty completely for the present time. The high rate of crime in Jamaica and strong public support for capital punishment were reasons given by the Jamaican Government, in discussions with Amnesty International's delegates, for retaining the death penalty.
Figures for reported murders from 1976 to 1982 (given in Appendix II)15 suggest that neither the suspension nor the resumption of executions in Jamaica had any significant effect on the criminal homicide rate, which remained high throughout the period. The marked increase in gun killings in the year 1980 is believed to have been due to violence between rival political gangs claiming to support one or other of the two main political parties before and during the October 1980 general election. In 1981 and 1982 there was a decrease in gun murders; this is believed to have been due to the decline in political violence after the elections, a factor unrelated to the death penalty. Were the death penalty to have a unique deterrent effect, the resumption of executions in 1980 after more than four years might have been expected to produce a drop in other types of murder, which was not the case. In fact, the overall criminal homicide rate in 1982 did not differ greatly from that in 1976. Figures for the earlier period show that the murder rate rose progressively from the mid 1960s to 1966/67, despite the regular use of capital punishment during most of this period.
Despite careful research in a number of other countries, the death penalty has never been shown to act as a unique deterrent to violent crime: this conclusion is borne out by the experience of Jamaica. As described in Chapter 4 of this report, the Fraser Committee's research team found that many murders in Jamaica were unplanned and committed in circumstances in which it is doubtful that the death penalty would act as a deterrent. Such murders were among those in which the perpetrator was most likely to be apprehended. The team also found that the low clearance rate for murders generally, and especially for the case of gun killings, lessened the deterrent effect of any penalty. Research into criminal homicide in Jamaica suggests that - as in many other countries - the murder rate is affected less by the death-penalty than by social and other factors.
Dr. Carl Stone, a Jamaican journalist who has carried out research into the death penalty, made the following observations in an article which was published in the Daily Gleaner on 4 October 1982. The Figures he quotes are similar to those given by the Fraser Committee's research team. “The suggestion that hanging deters murder and violence has no basis in fact. Most murderers are not caught and the probability of being caught is so low that hanging in our society is not an effective deterrent. Over the 1970-71 to 1978-79 period murder convictions represented only 20% or about one-fifth of the murders reported. Over the period only 58% of the reported murders had in fact led to arrests: and there was a high rate of acquittals. Over the period more persons were acquitted of murder than the number found guilty. Between 1970-71 and 1976-77 when the last executions took place in the 1970s only about 14% of the murders committed resulted in execution sentences ...”.
Public opinion and the death penalty
Polls indicate that public opinion in Jamaica favours the retention of capital punishment. One such poll, conducted in October 1982, found that 86 per cent of people polled were in favour of hanging convicted murderers, with 13 percent against.
However, a significant body of informed opinion is opposed to the death penalty in Jamaica. As described above, there was strong support for abolition among members of both houses of Parliament and from both major political parties during the 1970s. A number of other organizations and individuals have also spoken in favour of abolition. Seventy-seven lawyers signed a petition prepared by the Jamaica Council for Human Rights in 1973, calling for an end to capital punishment on the ground that the "cold and deliberate execution", or infliction by the state of severe and painful injury upon a captive victim, was inconsistent with a civilized and humane penal system. The Jamaica Council for Human Rights since 1979 has repeatedly urged the government to reintroduce a parliamentary motion to abolish the death penalty. The Jamaica Council of Churches protested against a resumption of hangings when warrants for execution were issued in the cases of Noel Riley and others in 1979. The Jamaican branch of the American Association of Jurists called for suspension of capital punishment in 1982, while the findings of the Fraser Committee were considered. In November 1982 the Ombudsman for Jamaica, while decrying the increase in violent crime, called for an end to tile death penalty.16
Public opinion, while showing support for capital punishment may often not be well informed about the ways in which the criminal justice system works in practice; of the effectiveness or fairness of the penalty, or of the types of persons who are executed. The Jamaican public is probably far more likely to be influenced by the frequent press reports of gun killings than by informed opinion on the actual use of the death penalty. It is relevant here to quote the following passage from the Ceylon Commission of Inquiry on Capital Punishment, 1959: "Even if public opinion is assumed to be in favour of capital punishment, this would not be a conclusive argument in favour of the reintroduction of this punishment. Unless public opinion is itself based on rational and informed grounds (and this our experience has shown to be unlikely), the existence of a public opinion strongly favouring capital punishment may be a reason, from the standpoint of practical politics, why that punishment is retained, but it cannot be a rational justification for retention .... Where public opinion is neither informed nor clearly ascertained, the social wisdom of a suggested legislative step must be determined by reference to considerations other than the belief of the public in the wisdom of that step."
Mandatory death sentences
Jamaican law provides for a mandatory death sentence on conviction of murder. The question of mandatory death sentences has been addressed in a number of countries, in view of the irrevocable nature of the punishment. The US Supreme Court has ruled, for example, that mandatory death sentences (imposed regardless of mitigating or aggravating circumstances of the individual offence) are per se a denial of due process of law".17
It is widely acknowledged that executive clemency, while mitigating the rigid application of the death penalty in certain cases, does not provide an adequate substitute for safeguards at the judicial stage of the proceedings. It has also been recognized that mandatory death sentences can exercise an inhibitory effect on judges and juries. A jury's belief that a death sentence may not be deserved or appropriate in a particular case can interfere with their assessment of the guilt or innocence of the accused leading to an artificially high rate of acquittal in such cases.
The Minister of Justice expressed concern about mandatory death sentences in Jamaica and told Amnesty International that he was seeking advice on how this could be changed.
Other considerations
In the course of its work for abolition of the death penalty, Amnesty International monitors the use of it throughout the world. Its conclusions include the following:
- The death penalty violates the right to life. Concern for the victims of crime must not be used to justify the state deliberately taking the life of a prisoner. -The death penalty is the ultimate cruel, inhuman and degrading punishment. Those sentenced to death often suffer acute anguish, both physical and mental, before execution. There is no means by which a person can be executed "humanely". Many means, including hanging, may not kill instantly. -The death penalty is irrevocable and can be inflicted on the innocent, despite tile most stringent judicial safeguards. -No means of limiting the death penalty can prevent its being imposed arbitrarily or unfairly.
The impossibility of drafting legislation which would distinguish fairly between those offences which are punishable by death and those which are not was expressed most recently in the parliamentary debates on a motion to reintroduce the death penalty in the United Kingdom in July 1983.18 During this debate, a number of members of Parliament pointed to the problems created by the Homicide Act of 1957, which had attempted to restrict the death penalty in Britain to a limited class of "capital" murders. The Act created anomalies which were followed by the suspension and later the abolition of the death penalty in Britain for all categories of murder. As the British Home Secretary commented in the 1983 parliamentary debate:
"Although attempts can be made to single out from other crimes murders that are specially prevalent, or that are believed to be deferrable by the death penalty, the problem remains that any such differentiation, when put into practice, is likely to lead fairly quickly to growing feelings of injustice. There will soon be cases outside, whatever criteria is used, that are felt to be more grave than those within them."
A former Prime Minister said in the same debate that the 1957 Homicide Act had:
“failed because the general public was not prepared to support an Act - nor was tile judiciary for that matter which said that one kind of murderer was worthy of the death penalty and another was not.”
The problem of distinguishing fairly between capital and non-capital offences applies to other countries as well. The giving of unguided discretion to a jury to decide whether or not to impose a death sentence was ruled unconstitutional by the US Supreme Court (in Furman v. Georgia, 1972) on the ground that this had led to arbitrary and capricious sentencing. Such a system has also been criticized on the grounds that this could lead to discrimination against an offender on the grounds of race, class or other factors. An alternative judicial process of "guided discretion" (used in the United States and elsewhere) through an assessment of predefined "aggravating" or "mitigating" circumstances does not resolve the problem, since it is impossible to specify in advance all the characteristics of a given crime and weigh their relative importance. As Amnesty International stated in its Report on the Death Penalty, (1979), "No legal provision can classify fairly the emotional, social and other factors which may have a bearing upon the commission of a capital offence". Such a process does not exclude discrimination on extraneous grounds such as race, and may work for the further disadvantage of those with less adequate legal counsel.
There are many ways in which the death penalty is unfairly applied. The distinction between one prisoner who is executed and another who is not depends not only on the crime but also on a series of recommendations and decisions made by the prosecutor, the defending lawyer, the judges and/or jurors and those who exercise clemency. It is impossible to rule out the possibility that, somewhere along this chain of decision, a step will be taken leading to one person being executed while another, having committed a similar crime in similar circumstances, is not. Along this chain of decision, it is also possible that - intentionally or not - the death penalty will inconsistently be inflicted in a way that discriminates by race, economic or educational or other social factors.
The death penalty and international human rights standards
The right to life and the right not to be subjected to cruel, inhuman or degrading treatment or punishment are enshrined in the Universal Declaration of Human Rights and other international human rights documents. There is growing international consensus that the death penalty is incompatible with those standards. In December 1971 the UN General Assembly adopted resolution 2857 (XXVI) in which it affirmed 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 countries".
This decision was re-affirmed by the General Assembly in Resolution 32/61 of 8 December 1977. The UN Secretariat has further stated that the death penalty constitutes "cruel, inhuman or degrading punishment" and the UN Secretary-General stated in 1980 that the death penalty "clearly violates the right to life".19 The American Convention on Human Rights lays down standards for the application of the death penalty in countries that have not abolished it and also provides, under article 4(3), that "the death penalty shall not be reestablished in states that have abolished it”. The Inter-American Commission on Human Rights, whose principal function is to promote tile observance and protection of human rights the Americas region, recommended in its Annual Report of 1981-1982 that "the Government of Jamaica suspend the execution of those persons sentenced to death and consider the abolition of the death penalty".
Today 26 states have abolished the death penalty for all offences and 18 have abolished it for ordinary offences, but retain it for exceptional offences such as crimes in wartime. Information gathered by Amnesty International indicates that, in recent years, at least one country a year abolishes the death penalty or, having done so for ordinary offences, goes on to abolish it for all offences. The trend in other countries in the Caribbean shows a decline in the use of the death penalty. In the Dominican Republic use of the death penalty is prohibited under the 1966 Constitution. The practice in Guyana for the past decade has been to commute all sentences of death passed in the courts to life imprisonment. No executions have been carried out for more than five years in Dominica, Grenada and Trinidad and Tobago.
Jamaica has ratified both the International Covenant on Civil and Political Rights and the American Convention on Human Rights, and has generally been prominent in promoting human rights standards in the region. The resumption and increase in the rate of hangings in the 1980s in Jamaica would appear to be incompatible with internationally recognized objectives to restrict the use of the death penalty, with a view to its ultimate abolition. Any further moves towards abolition in Jamaica - such as appeared to take place during the 1970s - would clearly be in keeping with these objectives.
Conclusions and Recommendations Summary and Conclusions
The death penalty has been the subject of acute debate in Jamaica in recent years. A significant body of informed opinion there including penologists, criminologists, lawyers and politicians, have expressed support for the abolition of the death penalty.
From April 1976 until January 1979 executions in Jamaica were held in abeyance while a parliamentary committee considered whether or not the death penalty should be abolished. In January 1979 the House of Representatives voted by a narrow majority to retain the death penalty, but recommended unanimously that all existing death sentences be reviewed.
Two extra-parliamentary official committees have considered the death penalty in Jamaica, both of which were critical of its current application. In 1975 the Barnett Commission questioned the effectiveness of hanging as a deterrent to violent crime and criticized conditions under which prisoners under sentence of death were held. The Fraser Committee, which submitted its report to the government in December 1981, expressed the view that "death as a penalty for murder should be abolished" and recommended, as a first step toward abolition, restrictions in the circumstances in which it should be imposed. The committee also recommended that all death sentences passed prior to 31 March 1981 (the period to which it sat) be commuted to life imprisonment.
Despite the recommendation made in 1981 that the death penalty be modified, Jamaica retains a mandatory death penalty on conviction of murder.
Hangings resumed in August 1980. Twenty-four prisoners were hanged between August 1980 and July 1984. Nearly all those executed had been sentenced to death before or during the early part of the period in which executions were field in abeyance. Most had spent long periods - of up to nine years - on death row. The executions were carried out despite recommendations that their sentences be reviewed or commuted.
There are currently more than 150 prisoners under sentence of death in Jamaica, of whom some 60 were sentenced before 31 March 1981.
An opinion given in June 1982 by the Judicial Committee of the Privy Council in England reflects the concern expressed by politicians and others at the length of time prisoners had spent under sentence of death while the penalty was under review. The Judicial Committee considered final appeals in the cases of five prisoners who had been sentenced to death in Jamaica between March 1975 and early 1977. Although the prisoners' appeals were rejected on technical grounds (by a majority of 3-2), the majority opinion stated that “ long delay in the execution of a death sentence, especially delay for which the condemned man is himself in no way responsible, must be an important factor to be taken into account in deciding whether to exercise the prerogative of mercy.” Despite this opinion, clemency was not granted in these cases.
Studies of prisoners sentenced to death in Jamaica have shown that such prisoners have come overwhelmingly from the lower socio-economic sectors of society; a majority had received little or no education; most were first offenders; many may not have had the benefit of adequate legal counsel.
There is no evidence that the death penalty deters crime more effectively than other punishments. Research carried out in Jamaica suggests that many murders arise from quarrels or fights between relatives or associates, and are committed on impulse, in circumstances in which the perpetrator is therefore unlikely to be deterred by the legal consequences. Statistics on criminal homicide also show a low rate both of conviction and apprehension in murder cases in Jamaica which inevitably lessens the deterrent effect of any penalty. The low apprehension rate applies particularly to cases of gun killings, which have accounted for a large proportion of the murders committed in recent years.
The executive, in applying the prerogative of mercy in Jamaica, takes the view that the law should take its course unless there are exceptional circumstances, such as doubt about the guilt of the offender. The Jamaica Privy Council has no set of written guidelines for exercising clemency in death penalty cases. Some prisoners have been denied clemency in the presence of factors which would seem to constitute especially strong grounds for exercising mercy.
The Jamaican government has expressed the view that total abolition of the death penalty cannot be introduced in Jamaica in view of the high rate of violent crime and apparent public support for capital punishment. However, the Minister of Justice was concerned to seek ways in which the present laws may be modified.
Recommendations
On the basis of the visit of its representatives to Jamaica, Amnesty International recognizes that there are deeply rooted convictions held by all concerned with the issue of the death penalty and that, despite continued division in public opinion, a significant proportion of informed opinion supports the cause of abolition or the need for radical changes in the current laws governing the death penalty. The organization believes that changes in legislation falling short of total abolition of the death penalty, as have been introduced in some other countries, have served neither to eliminate the inherent unfairness in its application nor reduce controversy on the issue. Amnesty International therefore respectfully submits the following recommendations to the Jamaican Government:
1. All executions should cease, permanently. Amnesty International believes that this could be achieved by the introduction by the government of an appropriate parliamentary resolution which would stop the execution of those already under sentence of death and suspend all future executions, pending changes in the laws providing for the death penalty. Such a resolution might, for example, call upon the Jamaica Privy Council and the Governor-General to commute all death sentences coming before them, or to suspend the issuing of warrants for execution, pending legislative changes. All sentences that are suspended in this way should be commuted ex post facto upon the introduction of changes to the law.
An alternative measure, which Amnesty International believes would be constitutionally acceptable, would be the introduction of a bill to statutorily commute all existing and future death sentences, pending the introduction of changes to the law.20
2. The death penalty should be abolished for all offences. Legislation should be prepared for submission to Parliament whereby alternative penalties be established for crimes of murder or other offences which presently warrant the death penalty.
As one means to this end, Amnesty International suggests that a detailed study be commissioned with full governmental support which would examine all aspects of the death penalty as currently applied in Jamaica. Such a study should include an examination of the social and economic background and circumstances of all those accused of crimes for which death is the penalty; those who have been sentenced to death and those who have been executed in recent years, to assess whether the death penalty is a punishment which affects principally the poor, the underprivileged and the uneducated from which those with resources can escape. The study should examine the relevance of the death penalty to the level of crimes of violence and alternative measures by which such crimes may be dealt with effectively.
3. In preparation for abolition of the death penalty, the government should inform the public about criminological and penal issues related to the death penalty, including its lack of special proven deterrent effect. This is in line with a recommendation of the UN that "It ... seems to be an important task of governments, the academic community, the mass media and other publicly minded organizations ... to educate the public as to the uncertainty of the deterrent effect of capital punishment".21
4. Pending the introduction of measures to suspend or commute the sentences of those currently under sentence of death, the Minister of Justice should review arrangements for the treatment and custody of such prisoners, to ensure that they do not exacerbate the already cruel, inhuman and degrading experience of being under sentence of death. Editor’s Note: The death penalty in Jamaica continues to exist.
Editor’s Note:
The dealth penalty in Jamaica continues to exist.
Notes
1. A separate part of the prison where prisoners under sentence of death are held until their execution.
2. The Judicial Committee of the Privy Council serves as a final court of appeal in a number of Commonwealth countries, including Jamaica. It is composed of five judges from the House of Lords (part of the United Kingdom Parliament). The Judicial Committee represents Her Majesty Queen Elizabeth II, in her capacity as Head of State of the Commonwealth country concerned.
3. The Jamaica Privy Council consists of six members appointed by the GovernorGeneral. The Privy Council's function is inter alia to advise the Governor-General on the exercise of the Royal Prerogative of Mercy.
4. In a letter from the Minister of Justice dated 29 March 1984.
5. The People's National Party, led by Michael Manley, was defeated in the general elections in October 1980, when the Jamaica Labour Party came to power.
6. Given by the Lord Chancellor (Lord Hailsham of Marylebone). Lord Diplock. and Lord Bridge of Harwich.
7. Citing cases from the US Supreme Court; the California Supreme Court; the Indian Supreme Court and a case before the European Commission on Human Rights (Tyrer v. UK).
8. The team's original proposal was to collect information on all the men on death row,
but their visits to the prison were curtailed due to bad weather and they were unable to complete the interviews. Thus, the sample cannot strictly be said to be selected "at random" although the team expressed the view that the 40 men interviewed (nearly 50 per cent) constituted a reasonable sample. 9. The research team examined a sample of 40 cases each from the years 1972 and 1976, taken at random from the Director of Public Prosecutions' office records of prosecution only. The outcome of trials was not known in many cases.
10. It was also not clear from these statistics whether the "case" recorded by the police included some multiple killings under one case, or whether each one homicide was recorded separately.
11. Amnesty International and the Death Penalty, a booklet published in June 1979.
12. The team pointed out that, while the data was based almost solely on the interviews, the prisoners antecedents were available to the team in most cases, and that the court records of the preliminary inquiry and trial tended to corroborate their stories, although placing a different emphasis on some of the accounts.
13. Delroy Chuck, the leader of the research team, was so concerned by his findings regarding the quality of legal representation in most of the cases examined, that he wrote to the general Legal Counsel and Bar Association on 25 October 1979. In his letter he stated inter alia that " . . . my research revealed that many defense counsel appointed by legal aid spend very little time investigating the cases assigned to them. Many, it seems, never discuss the case with their clients in any great detail. There are many areas of discrepancies, inconsistencies and flaws in a trial which defense counsel never see because they know very little about the case they are actually defending. It is crystal clear that in some trials the case for the defense is a half-hearted effort. When such a state of affairs exists in the legal profession, justice is rarely done, and the profession is brought into disrepute. Your urgent attention to this problem is sought."
14. These were given in the commission's report as being mercy killings; survivors of genuine "suicide pacts" and certain cases of infanticide.
15. The statistics up to 1978 are those for murders reported to the police, compiled from police records by the Fraser Committee's research teams. Amnesty International's delegates were unable to obtain official statistics for the period 1979/82: these latter figures were taken from a report published in the Daily Gleaner on 16 March 1983, which gave a breakdown of murders into killings by gunmen, killings other than by the gun and killings of members of the security forces (many of which may also have been carried out by the use of guns).
16. In an address to an award dinner of the Shell Company (West Indies).
17. This ruling was given in a number of different decisions. In Gregg v. Georgia. 1976, the US Supreme Court ruled that mandatory death sentences for a broad category of homicide constituted “cruel and unusual” punishment and were unconstitutional. In later rulings (Woodson v. North Carolina, 1976; Roberts (Stanislaus) v. Louisiana, 1976, and Roberts v. Louisiana, 1977) the Court ruled that mandatory death sentences, even when applying to a more restricted category of homicide, were a denial of due process of law.
18. The Motion was defeated by a large majority.
19. From a statement by Secretary-General Kurt Waldheim at the opening of the Sixth UN Congress on the Prevention of crime and the Treatment of Offenders, 25 August 1980.
20. These options, including the latter, are discussed in Chapter 5 of this report, and were also raised in a letter from Amnesty International to the Jamaican Government, attached in Appendix III to this report.
21. Capital Punishment: Working Paper Prepared by the United Nations Secretariat for the Sixth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Caracas, Venezuela, 25 August - 5 September 1980 A/CONF 87/9.
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Political Crisis And The Dealth Penalty In Uganda The history of death penalty in Uganda is very instructive. But, it is yet to be told by persons whose judgements have not been perverted by partiality. I have myself examined very temperately the reasons our people have given for and against the retention of capital punishment in the country. My conclusion was that many of them were obscured and distorted by prejudices and passion. After some time however, I discovered that I too had acquired feelings on the subject which were hardly compatible with an objective academic analysis. The existence of capital punishment in our statute books up to now has indeed aroused much anger in some of us. Our number is indeed small but many of us are eminently learned and fairly articulate. We have thus made it clear that the retention of capital punishment in our penal code is seen by us as a monument that even now, at the close of the twentieth century, our rules still believe in the official taking of human lives. There are no other explanations as to why capital punishment has remained the sole sentence for any murder and for some treasonable offences such as the attempted murder of the head of state.
It is certainly a signal example of human unteachability that many of us in Uganda should have, for so long, regard capital punishment as an effective deterrent for murders. It is difficult to see how we could so believe when it is common knowledge that in spite of its retention, murders and political assassinations and massacres have been increasing unabated! There is now hardly a place in the whole wide world where human life has become as cheap as in Uganda. We have become like the chickens. When you slaughter a chicken the other chickens fight for its entrails. When you murder a Ugandan, the relatives fight to inherit his properties!
* Akena Adoko is a Ugandan lawyer and at the time of writing this paper, was based in the U.K.
But, although their belief in capital punishment as a deterrence is contrary to their knowledge, it would be wrong to accuse the advocates of hanging in Uganda of dishonesty. They are not. On the contrary, their faith in hanging is strong even to the extent of martyrdom. Many of them are men of integrity. Indeed, they would never have succeeded to deceive so many people had they not begun by deceiving themselves. They sincerely hold and maintain that capital punishment is still a necessary and an effective deterrent to murders.
To them life imprisonment for murderers is dangerous because it exposes prison staff and other prisoners to murderers and in due course, the society itself becomes exposed to the same risks as those faced by prison staff and other prisoners when the murderers get released. They thus hold that capital punishment is certainly a solution to crimes likely to be committed by the convicted murderers. They held that it is an effective deterrent for murderers.
Besides, they do not look upon hanging as savage. On the contrary they claim it to be relatively painless and that if done properly, it takes only a couple of seconds. They point out that capital punishment has been around for so long and is too deep rooted to be abolished without adverse ripples in the society. They thus conclude that it is unworthy of the time of the legal profession to make so much fuss about capital punishment which is so much accepted by the population that its very existence is taken for granted like breathing in and breathing out.
This argument, as some of us see it, is a mere bugbear with which the advocates of capital punishment frighten the others. It is a mere nursery tale which cannot scare an adult.
The way we see it, the task of capital punishment abolitionists should be an easy one. We have good grounds with which to support our case. We have, on our side, those countries which have already abolished capital punishment. We also have illustrious authorities supporting our case. On the other hand, we have opposed to us mainly traditions and prejudices. Let us explain. The Mosaic Law of an eye for an eye and a tooth for a tooth is based on the then generally held view that the offender ought to suffer as much as he made his victim suffer. The doctrine of tit for tat implies that an evil which is wrong for a member of the society to inflict on others is right for the society to inflict on him! It goes without saying that very few people can argue that such an archaic doctrine should have a place in our modern legal system. It is, for instance, universally admitted that a criminal who blinds another should not have his eyes plucked out. Nor does a criminal who causes another to lose a tooth now has his tooth extracted by the order of the courts.
The society in effect tells the convict: You are a savage. You have blinded a fellow citizen. In the olden days we would have plucked out your eyes as a punishment. But we are no longer savages. We are now more civilized than you are. We will not therefore blind you. But, we will instead deprive you of your liberty and or fine you so as to stigmatize you as a convict and to punish and reform you on the one hand, and, on the other hand, deter others from following your footsteps.
We fear that a society which gives itself the right to cut short the life of one man, may end up by ususurping the right to cut down the lives of several thousands of men. That, indeed, is the story of Uganda.
At the time when the tit for tat law ruled supreme, the life of all was everything and the life of one was nothing. Yet, it would have been clear even then that all is but a totality of several ones. Hence if one is treated as nothing, all will end up in the same way. It is thus not surprising that even in this twentieth century a government of one of the most civilized nations adopted a policy of mass murders as the final solution.
A sage has therefore taught us to treat one as everything and all as nothing. In the parable of the Lost Sheep and the lost coin we are taught that when a good shepherd loses one of his hundred sheep or a conscientious man loses one of his hundred coins, he will leave the remaining ninety-nine and look for the lost one until he finds it! The old saying that we should look after the penny and the pound will take care of itself sums it well. Let us save the life of the individual and the lives in the society will be secured.
Those of us who are the product of Christian Missionary Schools cannot help noticing the marked difference between the Canon Law and the Mosaic Law. We are instructed by the Holy Writ not merely to love one another but to do unto others as we would have them do unto us. The Mosaic Law, on the contrary, provides that we do unto others as they have done unto us. The former law is thus based on love and forgiveness whereas the later is based on hatred and revenge. The Canon Law specifically provides that we do not kill. It allows no exception. It does not state, "Do not kill except as a government."
The Bible commands man to go and multiply; it commands man to produce; not to kill. Execution of convicts is thus a breach of this Canon Law. Besides, it has ramifications with extremely serious psychological consequences. By ordering a hangman to execute a convict, the government proves to members of the society that a human life can actually be cut short by another man with immunity! That neither nature nor man would take the trouble to avenge the sacrilege! It is a lesson which goes against the grain. It is a lesson more likely to spread the seed of murder.
A feeble-minded youth whom I successfully defended in a murder case but whose elder brother was convicted of the murder once said to me, "Mr. Adoko, you are an advocate. You know all about the law. Tell me about it. The judge has said that my brother must hang to deter other men from committing murder. But my brother committed murder in order to eliminate a man planning to kill him. Surely if deterrence is a defense for the government, it should also be a defense for my brother."
Then there are cases where errors of judgement have resulted in the conviction and executions of persons subsequently found to have been innocent of the offences with which they were charged. The taking of life as a mode of punishment thus sometimes involves irretrievable miscarriages of justice. Because of this fear of hanging an innocent man some presidents of Uganda have been unwilling to sign authority for execution. President Milton Obote always locked himself up in his office for hours to consider pleas for mercy for convicted murderers and to sign authority for execution. In about ten years of his rule he never brought himself to sign even one warrant authorizing an execution. On the same principle, it has always been the policy of the directorate of public prosecution in Uganda not to charge an accused person of murder if there was the slightest excuse for reducing the charge to manslaughter. When I was a crown prosecutor all homicides effected in drinking places or after some drink however small, or during the course of a quarrel etc. were treated as manslaughter cases. In short the finality of the capital punishment had forced the administrators of justice to try to avoid murder charges and in that way to fail in their duty as by law provided. Now, a law which forces a breach of duty on the part of its administrator tends to lead to disobedience of the law!
There are other grounds for the abolition of the capital punishment. It rules out all the opportunity for the reform of the convict. Hanged men cannot reform. If, Saul, the bloody persecutor of Christians had been hanged, he would never have become Paul, the leading apostle.
Nor is execution dangerous to the body only. It is even more dangerous to the mind of the convict. It involves extreme mental torture. It is the worst form of cold-blooded murder.
Even Al Capone never gave his victims several months notice of the termination of their lives. Nor did he even confine his murder victims under locks and keys surrounded by armed guards and watch them sweat it out in a whirl of worries!
Any present rulers of Uganda who takes the trouble to review the history of Uganda would be disposed to regard extreme sentences as warnings to be avoided and not as examples to be followed.
In 1985, Obote's government, in a fit of servility and animosity passed a law prohibiting the granting of bail to persons charged with the offences of terrorism. The law had hardly been passed when the fortune of the government changed. It fell. The new government now arrested several leaders of the fallen government and charged them under the law prohibiting the granting of bail. By an oversight the former Minister for Power Mr. Akena P'ojok was charged under the law which permits bail and the court released him on bail. When the government learnt about this, it rearrested him, withdrew the charges pending against him and filed new charges based on the same facts. This time, however he was charged under the law prohibiting the granting of bail. Meanwhile, many former leaders including Vice-President Paulo Muwanga, Minister Andrew Kayiira, Minister Chris Rwakasisi, Deputy Minister Ben Etonyu and Minister Ben Rwanyarale etc. were arrested and charged with offences carrying capital punishment.
Whether by virtue of natural law of cause and effect, or by some providential decree our leaders who have been insensitive to harsh laws have thus suffered severely under the laws they have tolerated. Some of our people being who they are seldom hesitate for valuable consideration to commit perjury in order to justify the actions taken by the government against fallen leaders. From such singular examples of the vicissitude of fortune we would have by now learnt the need for moderation in laws.
Yet, because many of our people are pathologically alarmists, they have been frightened by the talks about the dangers to which human lives would be exposed if capital punishment was abolished. It proves a waste of time explaining to some of them that the dangers they feared did not materialize in countries which have abolished death sentences such as, for instance, Switzerland, West Germany, Italy, Portugal, the Netherlands, Denmark, Venezuala and Brazil, Canada, etc. Since they must always be afraid of something they dismiss your explanation with the answer, "Uganda is different; Germany is different too,". Because of such attitude, it has been seriously suggested that Uganda follow the example set forth by countries like England and Wales, which have abolished capital punishment in most of the cases where it used to apply and restricted it to treason and piracy cases only. The proponents of such restriction had argued that perils lie thick on both sides; the side of abolition, on the one hand, and the side of retention, on the other hand. To keep far from one set of perils was to draw near to another set. The best course was therefore to weigh the perils against each other and to observe carefully the way the scale leaned. Having so weighed and watched the scale, they could abolish capital punishment in most of the cases and retained it in a minimal number of cases only.
It is admitted that in so far as the abolition of death sentence in most cases was concerned, it was a step forward. Half a loaf, as they say, is better than none. But, in so far as the retention of some cases punishable by death is concerned then the action taken was merely half a cure which is no cure at all. For a cure of sickness to take place, the demand of nature has to be met. There is no haggling. There should be no haggling. Let us therefore begin to reason afresh. Capital punishment is either good or bad. If it is good, then let it be retained for all murder cases. Why retain it only in some and not in others? If it is bad then it must go in all cases. There is thus no need to haggle about it by diminishing the cases to which it should apply. It is laughable to argue that because it has been abolished in some cases in which it was never necessary, therefore it should be retained in a few cases in which it is equally not necessary! The fact that some people have resorted to that kind of logic is proof that the subject is so charged with emotion that many are bound not to reason at all about it and that some are bound to reason very badly about it and to end up persecuting those who deflate their arguments.
Let us now sum up in one sentence paragraphs;
Since the government cannot give life, it should not take life.
A convict may be a bad man but his life may contribute to the cause of all good men.
The murder of a man and the execution of the murderer are not very different, they are the taking of the human life.
Nor is there an infinity between the life of a murderer and that of his victim.
The taking of the human life under any circumstances and for whatever reason is thus indefensible; any attempt to defend it only makes the case worse. No State should thus be deaf to the entreaties of reformers who ask neither for pardon, nor for mercy but for the imposition of life imprisonment instead of death.
As things now stand, the existence of capital punishment in a statute book is increasingly becoming a testimony of the detestable malignity and unbearable arrogance of the rulers.
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Against Capital Punishment in Nigeria
The principle ensures that anyone who betrays his country, say in times of war or who plots the overthrow of a government, would on conviction face death. Then, there is the provision that anyone who takes another person's life, would on conviction also face death. In recent times, we have had new additions to offences punishable by death, offences such as drug trafficking, economic sabotage, like tampering with oil pipeline or National Electric Power Authority (NEPA) installations or selling petroleum products outside the country illegally. The fact that the later group of offences attracting the death penalty, has since been amended, in no way diminishes our contention here. In actual fact, it reinforces it, for it shows that not enough homework was done before the laws were promulgated, so that when sent on trial in the market place of public opinion, they were found not to stand any chance. They are thus a very good example of the type of irrationality attached to such absolute actions as the capital punishment.
I must admit that there are some very strong reasons on which proponents of the capital punishment base their argument. For instance, you are asked, would you still oppose the death sentence, if you have seen someone murdered? And if that victim is in one way or the other related to you, would you still see the irrationality of prosecuting the Mosaic Law of a tooth for a tooth, and an eye for an eye? Actually, before the death sentence for hard drug traffickers was amended, you were asked: if you have been a
* Eluen Emeka Izeze is the editor of Nigerian Guardian
drug victim, or if you were related to someone who had been, either as a son, daughter, father, mother, brother or sister, and so you had a first hand experience of how it sucks the life out of the body and leaves the sufferer wandering like a zombie, would you still oppose its punishment with death? Proponents would maintain that backed up with scientific findings, a person with a propensity to kill people would keep at his obnoxious pastime if he is not stopped - by killing him, of course. Also, there is the argument that a murderer and an armed robber or even a coup plotter, could become an evil influence on others if he is allowed to go scot-free. For in a way, it would amount to giving others the licence to kill. And, of course, there is the well-known argument that in pressing for an amendment of the provisions for capital punishment you must take cognizance of the level of development of a nation - the stability and psyche of its people. The conclusion here would be that Nigeria and Nigerians have not reached a stage where they should dispense with such legal provisions as the death penalty.
Legitimate as these contentions may be, they remain badly flawed. For one thing, the principle of the Mosaic Law has since been replaced by latter-day injunctions in the world's major religions. Though not exactly in the same words and context, it now sounds like the biblical advice, if anyone slaps you on the right cheek, turn the left also to him. And for another, the effectiveness of capital punishment is clearly suspect. Armed robbery has not diminished since we started executing robbers, for instance. Instead, robbers have become more sophisticated, daring and highly brutal. Then there is the moral question that since you cannot create a life, you have no right taking one.
Beyond these moralistic perspectives to the capital punishment issue, is the frightening prospect, which it holds for our judicial system. To start with, there is no debate whatsoever, among our dispensers of justice, over whether the capital punishment is both desirable and effective as a punishment for a criminal offence. That is perhaps because, the law does not allow for such time-wasting polemics. Unlike other provisions in law which give the maximum as well as minimum terms for which a person can be sentenced, that on capital punishment allows the judge just one narrow room: when anyone facing trial for murder or violent robbery, is convicted, the only punishment allowed by the law is death. The judge is thus reduced to a robot and not the learned gentleman that he is. He cannot question the provision because he has no liberty to say anything else than pronounce the death sentence. Of course, for an offence that involves the taking of a person's life and whose punishment also involve death, the least that could be expected is to have a little opportunity for debate on the issue. The Nigerian legal system does not allow this.
Yet, the same law which punishes murder with death, also legitimizes or turns a blind eye to other types of killing. There are people whose only job is killing other people, like the hangman or executioner or it is imposed on them by circumstances like in the military, when the country is in a state of war. The law says that the hangman and the executioner are committing legal murder and so cannot be punished. The same law also allows murder if one can prove that he was acting in self-defense, or that he was extremely provoked into taking the action. This is what is known as manslaughter in law. Of course, there is a contradiction here in that the same law calls the spade a spade in one breath, and in another says that it is a hoe.
This is worrying enough, but consider that as in anything handled by humans, there must be a margin of error. In the case of illegal murder which is punishable with legal murder, it is almost certain that some people would have been sent to their death for offences they did not commit.
Moralists would tell you that when you kill a person, you lift the burden of the
guilt from him. It is perhaps for this reason that many countries, especially the liberal democracies of the West, regard the death sentence as a very ineffective punishment even for murder. To them a long prison sentence, actually a life term is the worst form of punishment you can mete out to any person since it deprives him of his freedom forever. Everyday for the rest of his life, he has the tortuous opportunity of ruminating over his crime. No punishment is greater than this. But aside from the vindictive urge to hurt someone who has hurt you or someone close to you, when a murderer is jailed for life, he has the opportunity to repent from his evil deed which is what the prisons are supposed to do. And let me add that this has nothing to do with the level of a country's development. It is purely a matter of crime, punishment, and reformation.
By opting for the death sentence, the Nigerian legal system passes a vote of no confidence on the reforming abilities of our prisons. And this by implication denies the prisons of any chance of being turned into reformatory homes. The capital punishment also turns all of us into vindictive brutes. But above all, it shows that those who made the law have little faith in the past, present and future generations of Nigerian jurists to truly adjudicate in a serious offence such as murder, so that they have to be told what to do: release the accused or send him to his death. No human, I dare say, ought to be given such a task. But then it shows the appalling extent of the law on capital punishment in this country.
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Nazi War Criminals and the Death Penalty
2. It is true that these crimes have been committed through-out the history of the human race. Few examples are: the extermination of the native population by the colonialists, in South America, North America, Africa, Indo-China etc.; the extermination of Bulgarians, Greeks, and Armenians by the Ottoman Empire etc.
3. Yet the crimes of the Nazis were unique in their systematic and methodological performance. When the prisoners of Auschwitz, Majdanek, Treblinka were liberated the worst nightmare was discovered: false shower rooms where the victims were gassed to death; piles of human hair used for mattresses, ground human bones used for soap; boxes of golden teeth to be melted for the gold, etc.
4. By the end of the war, about six million Jews were murdered, four million in the death camps. Many thousands of Gypsies were also killed. The Polish people lost six million people (22%) of the population, 877,000, civilians, half of them Jews. Yugoslavia out of 15 million, lost 1,685,000 including 1,274,000 civilians ; 425,000 out of the 6 million Greeks were killed, 400,000 of which were civilians. The Soviet Union lost 20 million, mostly civilians.
5. Many have posed the question, how do you explain these inhuman deeds of the same people who produced great musicians, philosophers, writers?
* Yossi Schwartz is a Toronto lawyer
6. The answer is complicated and has to do with the decline of capitalism, at the same time even those who do not see the decline of the capitalist system would agree that racism was an important element of this inhuman behavior.
Racism was deliberately planted in the mind of millions of Germans long before the Nazis took power. Huston Stewart Chamberlin, Ludwig Woltman and Eugen Dureng who preached white superiority, were very respected in Kaiser Germany. The rulers of Germany practiced genocide on the people of Namibia who opposed the German occupation, long before they exterminated Europeans. The Nazis elaborated on Nietzsche's teaching about the superman, and spread their faulty ideology claiming that the human race is divided into the superman, and the subhuman, and that social progress can be achieved only when the subhuman were removed.
7. After the war very important resolutions were adopted by the U.N., in order to prevent such deeds in the future.
a) On November 3, 1947 the General Assembly adopted the resolution about crimes against peace: the planning, preparing and waging aggressive wars. This includes the propaganda of war. b) Crimes Against Peace and Humanity. The Statutes of Nuremberg and Tokyo included in this category, crimes of war and crimes against humanity. The International Law Commission in 1953 defined such acts as: any act of aggression; a threat to peace, preparation to employ armed force unlawfully, the organization of armed bands for incursions into the territory of another state, annexation, genocide, intervention in affairs of another country by political and economic means.
c) The 1949 Geneva Conventions protect victims of war. War crimes are defined as: The use of methods of warfare banned by international law, destruction of human settlements, brutal treatment of prisoners of war, plundering, enslavement. d) In December 1948 the Convention on the Prevention and Punishment of the Crime of Genocide was signed. According to this conventionally "killing members of the group with intent to destroy, in whole or in part, a national, racial, ethnic or religious group is genocide".
e) According to the 1968 Convention on the Non-Applicability of Statutory Limitation to War Crimes and Crimes Against Humanity, such limitation are not applied to these crimes and states are required to cooperate in order to prosecute such criminals.
8. Someone could expect that at least the Nazi criminals would be brought to justice, and hope that war crimes and crimes against humanity would be stopped, but as we all know this is not the case. As we know thousands upon thousands of Nazi criminals escaped to North America, South America, and Australia with the active help of the American, British and Canadian Governments and their secret services, as well as with the help of the Vatican.
The name of Klaus Barbie, the butcher of Lyon, is still fresh in memory, but he was not the only one. In 1980 ABC television showed a documentary film by Michael O'Connor and Tim O'Brian. They maintained that there were Nazi criminals living in the U.S.A. who were responsible for the death of two million people, many of them claiming to be "displaced persons", escaping from "communism", and the American authorities turned a blind eye to their crimes. In his movie Eli Wiesel, not a great friend of the Soviet Union said: "We can never succeed in punishing all the war criminals. There are too many of them, and they have highly placed protectors. It is painful for me, as a citizen and a human being, to realize that these people live freely in America violating the principles of democracy and justice".
The Deschenes' inquiry into the Nazi war criminals revealed not only that Nazis escaped to Canada, but that for 43 years the federal government obstructed any attempt to bring them to justice. Even today after the inquiry and after the Criminal Code was amended to allow the federal government to prosecute alleged war criminals nothing has been done.
But even this inquiry failed to point out the actual numbers of Nazi war criminals in Canada. It found 20 Nazi war criminals and 218 suspected war criminals. How can it be when a whole Ukranian S.S. Wofen found refuge in Canada ?
9. Some people believe that these old Nazis should not be prosecuted because they committed their crimes in the far past, and they have been reformed. They might be anti-communist, these people argue, but they do not commit any wrongful act. The best I can say about these people is that they are not informed, and that they are used to protect the continuation of international crimes against humanity.
10. Why have these criminals not been extradited to Eastern Europe where the crimes occurred not tried in the West?
Some lawyers and politicians argue that they should not be extradited because by Western standards the legal system in the socialist countries does not provide for justice, and the Soviet evidence can not be trusted. Others argue that there are no extradition treaties between the West and the socialist countries.
This argument strikes at the heart of international law itself. The U.N. (and the U.N. Charter) is not a framework of cooperation between the capitalist and socialist countries but a framework for cooperation between states of different social political and legal systems in order to prevent wars and crimes against humanity.
Secondly, if indeed the governments of the West were worried about the fairness of the socialist legal system they could have tried them in the West, which they have failed to do.
Thirdly, Demjanjuk's trial, in Jerusalem proves that those who cry that Soviet evidence is fabricated are wrong at best, and some even lie at worst. All the attempts to discredit the Soviet evidence have failed miserably.
There are particular extradition treaties with Yugoslavia for example, and yet the previous Prime Minister of Croatia, a regime that was set up by Nazi Germany in Yugoslavia, and which collaborated with the Nazis found political refuge in the U.S., and was not extradited. Furthermore, the West ignore the international Postdam and Yalta agreements which include extradition.
11. The reasons are very different. These arguments are no more than a smokescreen which is used to hide the fact that many of these criminals continued and continue in their criminal activities in support of western interests.
There are many other ways in which old Nazis are used by Washington and its allies:
i) After the war in the countries where the left led the resistance to the fascists, but the West occupied, like Greece, Italy, West Germany, Philippines, the same Nazis and those who collaborated with them were put back in power. Take West Germany for example. Erhard Dabringhaus, who was Barbie's U.S. Intelligence Control Officer, in his book Klaus Barbie (p. 131) wrote: "In December 1945, I passed through Schwarzenback on my way to visit my wife in Belgium. I stopped to see how the mayor was getting along in his job. I was surprised to find that the former concentration camp inmate, a social Democrat, had been replaced by a former SS officer who had been cleared of war crimes and returned from an internment camp".
The BND-West Germany Security service has many Gestapo and SD officers on its payroll, for example, Stern, the liberal West German magazine reported that SS Oberfureer and Gestapo inspector Kirchbaum are in the employment of the BND. Other known Nazis are Gestapo Chief of Kiel F. Fanzinger, chief of Budapest H. Sommer. The SS are given pensions.
ii) While for some years the Nazis in West Germany worked in a semi-clandestine manner, with the new wave of ultra conservatism, Reagan-Thatcher etc., the old and the neo-Nazi organizations have been legitimized. Today close to 30 such organizations operate in West Germany. The Nazi national anthem: "Deutschland, Deutschland Uber Alles", is a legitimate song. Contrary to the attempt to white-wash his action, Reagan's visit to the Nazi graveyard was not a mistake, but part of the same policy.
iii) The Old Nazis who escaped to Latin America, Argentina, Chile, Paraguay, Brazil, where incredible atrocities were committed against the people, helped and trained the butchers in their own methods. In Chile there is a mini-Nazi state. According to reports more than 2,000 Nazis live there in this secretive colony. Many Nazis found employment in the Pinochet Government. One example is Walter Rauff who is responsible for the death of 250,000 prisoners in the Ukraine. After the Coup d'etat organized by the CIA, Pinochet appointed him as chief adviser for the board investigating communist activities.
Klaus Barbie escaped to Bolivia. There under his leadership the storm troopers were trained in secret camps at Santa Cruez de la Sierra later to take part in the military coup conducted by General Garcia Meza in July 1980.
The President of Paraguay, Alfredo Stroessner have hosted among others Josef Mengele, the white dead angel of Oswiecism responsible for the death of 200,000 prisoners. Among others are former gestapo chief Heinrich Muller Pavelic, the leader of Nazi Croatia, who is responsible for the death of 800,000 Yugoslavs.
In Brazil Alfred Boettcher as an SS officer served in Holland, and whom the Hague Tribunal sentenced in absentia, became a director of the atomic board, and a coordinator of a nuclear treaty with South Africa.
Thus the old Nazis have not disappeared but they function in the service of the West to prepare war against socialism and to enslave the people of the third world.
And how can the West try these criminals for their crimes, when the same type of crimes have been committed by the West since the end of the War. Take for example the question of Genocide:
A) US The U.S. committed large scale war crimes against the people of Vietnam, whose crime in the eyes of the American ruling circles was that they wanted to be independent from American domination and exploitation. The Americans used Napalm, which is illegal according to international law. 100,000 tons were thrown on Vietnam according to the U.S. Air Force. In South Vietnam more than one million civilians perished in concentration camps. Children and women were murdered. Le Monde Diplomatique reporter wrote in March 1967: "There were 2 children to each of the 25 cots in the room. Two children had both legs amputated to the knees. One of the medical personnel told me that Americans had shot them like rabbits. I could not take my eyes away from the blood-soaked bandage. I read the card on the hospital cots: Vo Van Mung, seven years old, Nguyen Van-Nong, eleven years, Van-Minh, thirteen years, Nguyan Van Hot ten years. Their only crime was that they were tending buffaloes, which in the opinion of the Americans, meant contact with the Viet Cong". The Americans used chemical weapons. The New York Times of September 10, 1966 reported: "This year operation ranch hand, using an average of six C-123 spray planes, has squirted 1,324,430 gallons of non-toxic herbicide."
In those regions where this herbicide was spread 56% of the population
developed intestinal diseases and 70% bronchitis. The U.S. claimed that these chemicals were not lethal, but these chemicals claimed the lives of at least 80 American soldiers who were exposed to them. United Press International of March 1967, reported that civilians are dying of exposure to these chemicals. All in all, over 15 million people in Vietnam were either killed, wounded or maimed.
B) Israel During the invasion of Lebanon, over 30,000 Lebanese and Palestinians, mainly women and children were killed, and some 70,000 were wounded. Fourteen Palestinian refugee camps were destroyed, and the main cities suffered devastation. Schools, hospitals, daycares, orphanages were bombed. Canadian ambassador, Theodore Arcand said about the destruction of Beirut: "The destruction would make Berlin of 1944 look like a tea party".
The massacre of Sabra and Shatila as they became known and the man who conducted this massacre, Ariel Sharon is still a minister in the government of Israel.
Israel put thousands of people in concentration camp - Ansar. The Prime Minister of Israel during the 1982 war, Begin addressing the Kneset, echoing Nazi propaganda, referred to the Palestinians as "Two-legged animals". For many the war of 1982 was the first time they have begun to doubt about the nature of Zionism, but the Zionist movement has practiced genocide against the Palestinians for many years. The Massacre of Dir Yasin, in 1948, of Kufar Quasim in 1956 are some of the more known examples.
C) The crimes of Apartheid are quite known, but there is no doubt that if U.S., France, West Germany, Britain and Israel would not support this regime the struggle of the People of South Africa and Namibia for national liberation would be much easier. In this context, we should remember that the U.S. and South Africa intelligence services are aiding the terror of the MNR, the contras of Mozambique.
D) El Salvador, Guatemala, Chile under Pinochet, Paraguay, Argentina under the Generals, are all known for their genocide of the people, and are all U.S. client states.
E) Kampuchea is another horrible example. The Clique of Pol Pot exterminated about 3 million people. The attempts of the West to accuse socialism of this crime, because of the Maoist ideology of Pol Pot, is ridiculous in light of the fact that after this clique was overthrown by the Vietnamese, the West made a political and military alliance with the same murderers.
F) The support of the contras in Nicaragua whose activities in the killing of civilians, farmers, workers, teachers, doctors and nuns and to destroy the crops and machinery is another crime against the peace. The contras are not freedom fighters as Reagan claims but are war criminals.
Why support capital punishment for these criminals? Some people would argue that since such crimes are either part of the human nature, or part of the social condition we live in, capital punishment can not have a general deterrence effect, and since they oppose retribution, they can not see why it is necessary to impose such punishment at all.
These horrible crimes are not the result of human nature, but of decaying imperialism which in its effort to survive against the general course of history brings about destruction.
We have to view the demand for capital punishment for such criminals as part of the struggle to emancipate the human race from the conditions of exploitation of human beings by other human beings. Racism which justified these horrors is not normal, but it is an ideology which was created to justify enslavement. The demand for capital punishment for certain criminals who put themselves outside of humanity would make it much more difficult to commit such crimes again. Would Oliver North be such a hero if the people of the U.S. were aware that he belongs to the same camp of the Nazis. Would Reagan be a President under such circumstances? Those who commit such barbaric crimes against humanity know that they have a place to run to when they fall, if not to the U.S. at least to a country controlled by the West. Would they be able to escape were the American people aware that their government is sheltering war criminals, and criminals against humanity?
Some Liberals argue that by supporting capital punishment for war criminals we legitimize this punishment and because of it the government would be in a better position to impose it on all people, including the left.
They are wrong. Governments are not bounded by formal logic, but by relation- ship of power between the ruling circles and the people they rule. The history ofcapital punishment in the U.S. since the second war proves it easily. Poor people, people of colour, and the left wing etc are the people executed. Those whoordered the crimes in Vietnam and the known Nazis were not even brought to trial.
In other words, if the progressive movement will be strong enough to demand capital punishment for war criminals they may get it as a concession.
Why kill these criminals and not jail them for life? In the abstract nothing is wrong with this approach, but under the existing conditions, they will not sit long in the prisons in the West. After the war, thousands of war criminals were sentenced to long periods, many to life, and yet within 2-4 years these criminals were not only free but held important positions in the administrations of the West. History should not be allowed to repeat itself, at least not with our acquiescence.
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The Death Penalty in TEE Context of Commission
(1) The States Parties to the present Convention declare that apartheid is a crime against humanity and that inhuman acts resulting from the policies of apartheid and similar policies and practices of racial segregation and discrimination, as defined in article II of the Convention, are crimes violating the principles of international law, in particular the purposes and principles of the Charter of United Nations, and constituting a serious threat to international peace and security.
(2) the States Parties to the present Convention declarecriminalthoseorganizations, institutions and individuals committing the crime of apartheid.
Thus apartheid is recognized as a crime against humanity by treaty law. As is common knowledge, treaties are one of the most important sources of international law, commanding adherence not only by states parties to a particular treaty, but by the
* This is part of a larger work I am doing on war crimes in Canadian law. ** Munyonzwe Hamalengwa practices law in Toronto, Ontario, Canada
international community generally. Apartheid was a crime violating not only international law but was also a serious threat to international peace and security. The crime of apartheid as a crime against humanity was not limited to its practices in South Africa and Namibia, it extended to similar practices elsewhere as article 11 of ICSPCA makes clear:
For the purposes of the present Convention, the term "the crime of apartheid," which shall include similar policies and practices of racial segregation and discrimination as practiced in Southern Africa, shall apply to the following inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them:
(a) Denial to a member or members of a racial group or groups of the right of life and liberty of person:
(i) By murder of members of a racial group or groups; (ii) By the infliction upon the members of a racial group or groups of serious bodily or mental harm by the infringement of their freedom or dignity, or by subjecting them to torture or to cruel, inhuman or degrading treatment or punishment; (iii) By arbitrary arrest and illegal imprisonment of the members of a racial group or groups;
(b) Deliberate imposition on a racial group or groups of living conditions calculated to cause its or their physical destruction in whole or in part;
(c) Any legislative measures and other measures calculated to prevent a racial group or groups from participation in the political, social, economic and cultural life of the country and the deliberate creation of conditions preventing the full development of such group or groups, in particular by denying to members of a racial group or groups basic human rights and freedoms, including the right to work, the right to form organized trade unions, the right to education, the right to leave and to return to their country, the right to a nationality, the right to freedom of opinion and expression, and the right to freedom of peaceful assembly and association;
(d) Any measures, including legislative measures designed to divide the population along racial lines by the creation of separate reserves and ghettos for the members of a racial group or groups, the prohibition of mixed marriages among members of various racial groups, the expropriation of landed property belonging to a racial group or groups or to members thereof;
(e) Exploitation of the labour of the members of a racial group or groups, in particular by submitting them to forced labour;
(f) Persecution of organizations and persons, by depriving them of fundamental rights and freedoms, because they oppose apartheid.
The Apartheid Convention is broader in compass than the Nuremberg Principles. The principle of the illegality of racial discrimination, like that practiced in South Africa had increasingly been elevated in international law if not already recognized as part of jus cogens -- peremptory norm of international law which cannot be derogated from or set aside by treaty or acquiescence. Non-discrimination as a case of jus cogens, apartheid as practiced in South Africa constituted a specific and particular case of violation of jus cogens.2 Racial Discrimination was also outlawed by treaty law, as recognized in the International Convention Agrainst Racial Discrimination.3 Racial discrimination was thus a violation of international law. I.C.S.P.C.A. defines discrimination as practiced under apartheid as an international crime. Considering the numerous U.N. resolutions against apartheid practices in South Africa; numerous treaties similar to I.C.S.P.C.A.; various national legislations; various pronouncements in international circles; press releases, policy statements etc., apartheid was a violation of customary international law, conventional international law as well as general principles of law recognized by the community of nations.
Apart from being an international crime on the basis of being a crime against humanity in regard to its treatment of the majority population in South Africa as defined above, apartheid according to Brahme4 was also a crime against peace. This was because of: (a) its continued colonial and illegal occupation of Namibia, which in itself was also a violation of the principle of the right to self-determination of peoples,5 and, (b) its aggression and de-stabilization of neighbouring states. It was very possible and indeed inevitable that in the course of its occupation of Namibia and its aggression against neighbouring states, apartheid also commited war crimes as defined in the Nuremberg Principles. If this was the case, then apartheid had committed and continued to commit all the major international crimes, namely, crimes against peace; war crimes and crimes against humanity for which the international community had universal jurisdiction to prosecute the perpetrators.
It is thus necessary to review in brief the precise manner in which apartheid commited these international crimes, particularly the crime against humanity.
"Violation of human rights on a substantial scale has characterized the situation in South Africa for many years. Recently, there has been a further, marked escalation of political imprisonment and detention without trial, torture and political killings. The judicial death penalty continues to be used at a high rate."6 It is not necessary to go far into the history of South Africa in order to demonstrate the criminality and violence of apartheid (the laws in South Africa resembled to a large extent the laws of Nazi Germany), suffice to review the immediate period of the 1980s, with sporadic references to the period between 1948 and the 1980s.
Apartheid was not an arbitrary system of governance. It was based on laws governing all aspects of life. Of interest to us are the "security laws" that justify the arrest, detention, torture and sometimes killings of Africans. The most comprehensive law to date that has set the legal framework of repression was the Internal Security Act of 1982.7 This Act was a consolidation of all previously existing security laws, most of which it also repealed. The earlier security laws included8: (a) The Suppression of Communism Act No. 44 of (1950);
(b) The Bantu Administration Act No. 38 of (1927); (c) The Public Safety Act No. 3 of (1953); (d) The Criminal Procedure Act No. 56 of (1955); (e) The Riotous Assembly Act. No. 17 of (1956); (f) The Unlawful Organizations Act No. 34 of (1960); (g) The General Amendment Act No. 37 of (1963); (h) The Terrorism Act No. 83 of (1967); (i) The Affected Organizations Act No. 31 of (1974). The publication of the International Defense and Aid Fund entitled Apartheid: The Facts9 had captured neatly the utilization and compass of these security laws at the hands of the South African police and army:
The widest powers derive from the so-called 'security' laws. These are aimed at people or organizations whose activities and aims the regime describes as 'furthering the aims of communism', 'terrorism', 'endangering the security of the State or the maintenance of order’, 'endangering the public peace' or 'threatening essential services'. The definition of these terms is so loose and the power conferred by the laws so wide, that the regime is able to use the law to act against any form of effective opposition to the apartheid system. The limits to its capacity to use these powers are not contained in the laws, but are set only by political and practical considerations.
Under the 'security' laws, there are powers to detain people without trial; to ban people, organizations and meetings; to break up meetings: and to imprison people. By the restrictions they place on meetings, the laws licence attacks against protesters and demonstrators, which on many occasions have included the police killing people. The laws have also created conditions under which the torture of detainees has become routine.
The application of the Internal Security Act brought ominous results.10 Section 28 of the Internal Security Act for example empowered the Minister of Law and Order to order the preventive detention of any person he considered engaged in, or likely to be engaged in, "activities which endanger or are calculated to endanger the security of the State or the maintenance of law and order." Section 29 permited police to hold detainees for interrogation indefinitely, in isolation and without access to relatives or lawyers. Section 30 empowered a State Attorney-General to issue an order denying the court its usual authority to release a charged person on bail if he "considers it necessary interests of the security of the state or the maintenance of law and order." Section 31 empowered a state Attorney-General to authorize incommunicado detention without charge of potential state witnesses until the end of the trial at which they were expected to testify. If they refused to testify, they could be sentenced to up to five years imprisonment for contempt of court. If they refuted in court a statement made while in security police detention on the grounds that it was made under duress, they could be charged with perjury.
In 1984 for example the above Internal Security Act sections were used to detain the following numbers of people:11 Section 28 (Preventive Detention) 28 Section 29 (Detention for interrogation) 280 Section 31 (Detention of potential witnesses) 13 Section 50 (Short term preventive detention), or no 72 Section 50 of the Criminal Procedure Act or no legislation at all, for period of less than 48 hours. 152
It was also the sometimes end result of these indefinite and incommunicado detentions without family or lawyers' visits that incriminated apartheid as a crime against humanity. According to Amnesty International, many detainees had been tortured or severely ill-treated while detained incommunicado.12
Many studies have in fact also confirmed that opportunities for torture exist when detainees are held incommunicado anywhere in the world.13 It is not surprising that torture and ill-treatment are now outlawed by the treat law. Not only did incommunicado detentions offer opportunities for torture in South Africa, they also led to extra judicial killings by security police of those tortured. At greater risk of torture and death in prison were political detainees, though even mere criminals had been known to die in prison.
Indications of torture were not only revealed in numerous deaths in prison (to which I will return shortly) but also in numerous cases of detainees requiring hospitalization during or after detention due to injuries or serious mental disturbance. Dr. Wendy Orr, a district surgeon responsible for medically examining detainees and prisoners in the Port Elizabeth area, for example submitted evidence on 25th September, 1985 to the Supreme Court of widespread and regular torture and ill-treatment of detainees. Her evidence was supported by sworn statements from over 40 people, including detainees.14 The figure for the whole of South Africa would be staggering. Tortured detainees had no recourse to law as existing laws and regulations granted immunity in advance to all law enforcement officials for any actions committed "in good faith" in the exercise of their powers.
The inquests that were conducted after the deaths in prison of Steve Biko, the leader of the Black Consciousness Movement, and Neil Aggett, a white trade unionist revealed the extent of torture in South African prisons.15
The gravity and widespread use of torture in South African prisons had also been revealed more clearly by a nation-wide empirical study conducted by three professors at the Institute of Criminology of the University of Cape Town.16 One hundred and forty-four former "security legislation" detainees were interviewed. The period covered was between 1974 and 1983. Most of those detained were involved in all kinds of political work: student organizations, trade unions, community and political organizations. Using the operational definition of torture of the United Nations Declaration on Torture, the results came as follows and I quote the whole tabulation:
Only 17% of cases claimed no form of physical torture. The most frequent form of torture (75%) was beating, which included punching, hitting, locking, slapping as well as beating and whipping with a variety of implements and other forms of assault. The next three most frequently reported forms of physical abuse were forced standing (50%), maintaining abnormal body positions, which includes crouching, standing on toes with arms upstretched, holding chairs or other objects above the head, and holding a position as if sitting in an imaginary chair (34%), and forced gymnasium-type exercises (28%). In addition, 25% reported having been subjected to electric shock, 18% to strangulation either by hand or by means of a cloth or towel, and 14% to suspension in various forms.
Other forms of physical torture were reported by 27% of cases. Hand analysis of these other descriptions revealed the following most frequent forms of abuse: manacles, including handcuffs, legs constantly chained and chains placed around neck (15%); pulling out or burning hair or beard (5%); genital abuse (3%), and falanga, which involves beating the soles of the feet with some implement (3%). A further rage of abuses were reported by one or more cases and included: being wrapped in canvas, kept barefoot, burning match sticks placed under nails, sand in shoes while doing exercises, being thrown into the air and allowed to fall, given salted water to drink, hands cut with knife, placed in boot of car, nose twisted, fingernails crushed by brick, petrol poured over body and set alight, breasts squeezed, held out of moving car, tied to a tree, and scrubbed on face and body with a hard brush. Even this substantial list does not entirely exhaust the range of abuses reported.17
In addition to physical torture, psychological torture was also part of the system. The findings on this aspect of torture were reported as follows: No cases reported an entire lack of psychological abuse. Over half of the cases reported having been subjected to the following forms: false accusations (83%);solitary confinement (79%); verbal abuse (71%); threats of violence to self (64%); contradictory styles of interrogation (57%); and being given misleading information (51%).18
These figures show that almost no one was safe from torture in South African prisons. Torture was so pervasive that the system itself can be called "torturous" i.e. it was based on torture.
Gordon Winter, an ex-intelligence officer in South Africa also described from experience some of the horrible torture methods and causes of numerous deaths in South African prisons in his book Inside BOSS, South Africa's Secret Police.19 Torture resulted in many deaths in South African prisons as already stated. As of the period from 1963 to 1984, for example, sixty individuals had been recorded as having died in prison. I think this was perhaps the greatest number of deaths in prison anywhere in the world. The majority of the deaths occurred in 1969 (6); 1976 (13), and 1977 (14). There may have been many deaths that were not reported.
The torture and deaths of political prisoners in South Africa was only part of the story. There were many deaths caused directly by apartheid in South Africa. There were firstly official "judicial murders" whereby political prisoners were forced to confess under torture to crimes they did not commit. These "confessions" were then used to convict the victims which convictions in turn attracted the death penalty. Secondly the nature of apartheid induced the subject population to commit all sorts of crimes which directly lead to imprisonment.20 Some of these ended up dying mysteriously in prison. Thirdly, there were many arrests due to infractions of the pass laws. Pass laws were the cornerstone of apartheid. According to Amnesty International's publication, South Africa: Imprisonment Under the Pass Laws,21 238,000 Africans were arrested in 1984 alone for pass law and other infractions. A sizeable percentage of those arrested either for committing certain crimes or for pass law infractions never saw the light of the day again. According to the report, Torture is Part of the System22 there were on average two hundred (200) deaths in South African prisons every year. Again my supposition is that this was probably the highest number of deaths in prison anywhere in the world. Again, many may not have been reported.
Further as already stated, there were those who commited horrendous crimes, some of which were induced by the psychology of poverty and political frustration under apartheid, which crimes were punishable by the death penalty. South Africa had one of the highest execution rates under the death penalty in the world. For example there were 130 people hanged in South Africa in 1980; 96 in 1981; 100 in 1982; 90 in 1983; and 115 in 1984.23 In 1985, there were 137 executions, 121 in 1986 and 164 in 1987.24 This totals to 627 executions between 1983 and 1987 in South Africa. These were only the reported cases. Add these to the over 200 people who die mysteriously in South African prisons per year, in addition add political detainees who died as a result of torture, then you have a very critical situation. Consider also the unreported cases.
The death penalty was also as much a political weapon to deter political opposition as it was a legal instrument. Over the last several years, the number of people on the death row for committing "political" crimes had increased. As opposed to common criminals, these political convicts were categorized as having committed "unrest-related" crimes. A good number was constituted by those alleged to have committed "terrorist" acts. By the end of 1987, the number of unrest-related death row prisoners had risen to an estimated 44. By the end of 1987, five had been executed.25
The number of political death row inmates increased as time went on because of the introduction of the doctrine of "common purpose" by the government in the 1980's. This doctrine held that if a person were associated with those who had committed a crime, that person was also liable. The famous Sharpeville six were convicted and sentenced to hang on the basis of this doctrine.
The doctrine of common purpose certainly deepened South Africa's commission of crimes against humanity. Jo-Ann Bekker26 in her appeal, stated "Those who dispassionately endorse the death penalty should spend a few afternoons outside Pretoria Central Maximum Security Section when the bereaved pay their last visits to the doomed."
The death penalty was abolished when Apartheid was abolished, perhaps suggesting to some extent that capital punishment is a function of the nature of the dominant political culture.
Notes
1. The International Convention on the Suppression and Punishment of the Crime of Apartheid (United Nations General Assembly Resolution 3068(XXVIM, 30 November 1973, entered into force on 18 July 1976. As of December 1986, there were 86 ratifications) defines apartheid as a crime against humanity. I call those who commit the crime of apartheid, hence crime against humanity as apartheid criminals.
2. "Declaration of the Seminar on the Legal Status of the Apartheid Regime and Other Legal Aspects of the Struggle Against Apartheid” Introduction to Apartheid: South Africa and International Law (New York: LTN Center Against Apartheid, 1985) p. 8.
3. International Convention on the Elimination of All Forms of Racial Discrimination (United Nations, Treaty Series vol. 660, p. 195). Entered into force on 4 January 1969.
4. G. Brahme, "Some Remarks on Responsibility for the Crime of Apartheid Under International Law" in Apartheid, supra note 2.
5. See Declaration on the Granting of Independence to Colonial Countries (United Nations General Assembly Resolution 1514(XV) of 14 December 1960).
6. Amnesty International, South Africa: Briefing (London, 1986) at p. 17.
7. For a good study of repression in South Africa using the Internal Security Act, 1982, see I.E. Sagay, State Terrorism in South Africa (New York: UN Center Against Apartheid, 1984). See also Nicholas Haysom, "Human Rights Index" in (May 1985) I South African Journal of Human Rights 80, hereinafter referred to as S.A.J.H.R.
8. Sagay ibid at p. 3.
9. In cooperation with the UN Center Against Apartheid (New York and London, 1983).
10. See Amnesty International supra note 6.
11. S.A.J.H.R. supra note 7 at p. 81.
12. Supra note 6.
13. Nigel Rodley, The Treatment of Prisoners Under International Law (Oxford: Oxford University Press, 1987).
14. Reported in Amnesty International surpa note 6 at p. 8.
15. See Torture is Part of the System: State Violence in South Africa and Namibia (London: African National Congress, 1984) and Catholic Institute of International Relations (C.I.I.R.) et al, Torture in South Africa (London, 1982).
16. D. H. Foster, D. Sandler and D. M. Davis, "Detention, Torture and the Criminal Justice Process in South Africa" in (May, 1987) International Journal of the Sociology of Law 105. See also their forthcoming book, Detention and Torture in South Africa (London: James Currey, 1987).
17. Ibid at pp. 111-113.
18. Ibid at p. 113.
19. Gordon Winter, Inside Boss: South Africa's Secret Police (Harmondsworth: Penguin, 1981).
20. This should be a subject for another paper, "South Africa's big crime rate ... the highest in the ‘Western’ world [is] linked directly to the socio-economic conditions created by apartheid" Jo-Ann Bekker in Weekly Mail 5 to 11 February 1988.
21. (London 1986).
22. Supra, note 15.
23. Amnesty International supra note 6 at p. 16.
24. Human Rights Commission, Human Rights Update (July-Sept. 1988) Vol. 1, No. 4, p. 52.
25. Jo-Ann Bekker, supra, note 20.
26. Ibid. |
Conclusion: The Death Penalty in International Law
On first reading one may get the impression that international law does indeed sanction the death penalty. The first guarantee in the U.N. "Safeguard, Guaranteeing Protection of the Rights of Those Facing the Death Penalty"1 stipulates "in countries which have not abolished the death penalty, capital punishment may be imposed only for the most serious crimes..." one wishes that the United Nations would come out with a convention that bans the death penalty outright along the lines of the Torture Convention. This convention outlaws any form of torture per se.
Arbitrariness in the death penalty is banned by many human rights instruments, the major format almost being the same, e.g. article 4 of the American Convention;2 article 4 of the African Charter on Human and People's Rights; article 2 of the European Convention; article 3 of the Universal Declaration of Human Rights etc. If the death penalty is not arbitrarily imposed, from the point of view of international human rights
* Munyonzwe Hamalengwa is a Toronto lawyer
law, it seems to be allowable. As already stated this should not be surprising given the number of retentionist countries.3 There are about 120 countries that retain the death penalty.
Western Europe seems to be the leading region where the death penalty is fast disappearing. Only four states retain the death penalty.4 The death penalty is most prevalent in the Middle East and North Africa, indicating the strong religious influence on the issue. Most African countries also retain the death penalty. Canada's attempt to reintroduce capital punishment was defeated in June 1987. In the United States, close to 40 states authorize the death penalty.5 In the 1990's New York State reintroduced the death penalty.
Amnesty International is one of the most important non-governmental organizations opposed to the death penalty. Amnesty International has declared that the death penalty is a violation of the right to life and is the most cruel, inhuman and degrading of all forms of punishment.6 Amnesty International's relentless campaign is getting through to many governments. It is possible that in the near future the U.N. will draw up a convention for the purpose of outlawing one of the most barbaric forms of punishment - the death penalty.
In the meantime, the U.N. has prolungated Safeguards guaranteeing protection of the Rights of those facing the Dealth Penaly. |
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