Australian Journal of Human Rights
The Barbaric Punishment: Abolishing the Death Penalty
by Hans Goran Franck
Martinus Nijhoff Publishers, The Hague, 2003, xii + 163 pages
This is a very interesting book to read but also quite frustrating. Interesting because for a reader concerned about basic human rights, it is psychologically unsettling to believe that the death penalty is still used and has strong adherents. The frustration arises because of the way in which the book has been brought together. It is a series of strongly related and well-considered thoughts by a renowned expert on the death penalty, posthumously edited. The fact that Franck never had a chance to complete and refine this book — and here I am specifically referring to ensuring that standard academic or professional methods of referencing are complied with — means that upon first reading there is a series of citation questions raised in the reader’s mind that, although subsequently answered, at least in part, betray an uneven quality to the complete book. Quite simply, Franck’s ‘anecdotes and impressions’ frequently cry out for fuller authoritative reinforcement. A further concern is the lack of an index or case, statute or convention list, which would have been quite helpful to the reader new to this area. Despite these concerns, the book is impressive as a source of information about the ‘barbaric punishment’ from arguably one of the world’s leading advocates against its continued use.
The book is divided into an Editor’s Note, author’s Foreword, editor’s Introduction, seven chapters and six useful appendices. The Editor’s Note (ix–x) provides a brief glimpse of the activist career of Hans Goran Franck. This and the Introduction are by the editor, one of the leading scholars on international criminal law, William A Schabas.
The Introduction (1–24) includes an explanation of the role of Franck in relation to international efforts to rid the world of the death penalty. This provides the reader with an appreciation of how qualified Franck was to hold the opinions that he did and allows for some of the frustrations mentioned above to be markedly reduced. In providing an overview of the death penalty, Schabas’s introductory essay explains that the impact of human rights law since the late 1940s has made significant inroads into its abolition. Schabas then explicates public opinion and its role in criminal law policy and in so doing reviews the interpretation of some of the key multi-national covenants and conventions (3–16). The essay then moves into an analysis of international political initiatives and the particular role of the United Nations Commission on Human Rights, as well as some of the debate in the General Assembly of the United Nations (16–21). The criticism of the position of the United States of America on the death penalty, during the discussion about international political initiatives, allows for a morph into the concluding part of the essay, ‘American Exceptionalism’ (21–4). Here Schabas introduces the sense of confusion that many Europeans arguably feel when considering the seemingly incompatible views of the United States to democratic development and the death penalty. Schabas then questions whether the international political context can and will cause a change in thinking in the United States. During this concluding section of the Introduction, the editor engages in strong criticism of the US political system and its effect on law and society (21–2). While the editor’s point may be valid, it seemed to me to be unnecessary in the context of the book as a whole. This is particularly so when the editor notes that his point is ‘one element’ in any complex explanation about a very complex society. Franck makes a similar point about the seemingly inherent racism within the US justice system, but does so specifically in terms of the death penalty (see 74). The editor’s comment struck me as evidence of his real concern about human rights issues generally in the United States.
Chapter 1 is the author’s impassioned introduction to the death penalty. Here Franck outlines the reasons for the abolition of the death penalty worldwide. And here my frustrations began. Though later in the book certain points are clarified, the author makes statements that are not explicitly justified — but rather appear to be statements of faith — and that are not buttressed by an adequate reference. For instance, the author makes the point that ‘(t)he death penalty is, in its very nature, incompatible with democratic values’ (26). This does not seem to make intuitive sense, particularly after the introduction by Schabas concerning the effect of public opinion. If a jurisdiction, with full adult voting franchise, elects governments which have as their policy the use of the ultimate punishment, then, as deplorable as that may be to the reader, how can that not be considered democratic? The author answers this, but not comprehensively until Chapter 7.
The author examines the arguments for and against the death penalty in Chapter 2 (29–43). Readers are treated to a cursory overview of the arguments for the death penalty and more comprehensive arguments against it. This is understandable, given the author’s (and hopefully most readers’) obvious bias against that punishment; however, it lends weight to the argument that this book, while valuable, is slightly uneven. The arguments Franck refers to as those for the death penalty are:
• religion-based (not explained in detail here but alluding to ‘an eye for an eye’);
• as vengeance, retaliation and retribution;
• the state’s right to self-defence (to protect society’s interests);
• the general and individual deterrent effect on potential criminals;
• as a necessity in wartime, particularly in relation to deserters; and
• opinion polls suggest it is popular.
The arguments against the death penalty are basically a rebuttal of those for it, with a few extra ones based on human rights concepts. In summary the arguments are:
• the fact that many of the deterrents are simply psychologically ineffective, given the stereotypical background to those accused of death penalty crimes (drug addicts, fanatics, the nervous);
• the death penalty is most likely abused in wartime to stabilise unstable situations;
• scientific studies indicate that there is no statistical evidence showing that the death penalty has a deterrent effect;
• opinion polls are quite malleable and can shift over time and are dependent on context;
• retribution is now counterbalanced by the ‘modern’ concept of rehabilitation;
• the fact that there are international agreements indicating states’ acknowledgment of the need to respect human life;
• that the death penalty is similar to torture, 7 and the right not to be subjected to torture is a basic human right;
• the imperfect nature of human justice in that there is a risk of executing the innocent;
• it is used for political ends and in a discriminatory way against those in minorities, or not of the elite;
• it is more expensive than other sanctions; and
• once abolished it is rarely reintroduced by a society.
To buttress these points, especially the one concerning the death penalty’s similarity to torture, Franck provides a gruesomely detailed description of the way in which the death penalty works in practice (35–8). For a reader who may have been unconvinced by some of the logic Franck uses, these emotion-charging descriptions will certainly make you think twice! Again, the lack of footnotes, or other references, is frustrating as there are many valuable points that the reader may wish to explore more fully. For instance, Franck cites a Japanese prison psychiatrist who found that of 145 people sentenced for murder, none had thought about the death penalty before, or at the time of, committing the offence (30). There are also a few niggardly typographical mistakes, such as ‘State’ instead of ‘state’ (29) and ‘state’ instead of ‘State’ (31), and some strange wording: ‘adepts’ (30). Finally, I would also have liked a more jurisprudential discussion of the ‘fundamental problem’ of killing an innocent person. That is, if a person has been ‘legally’ but mistakenly killed, then it is clearly ‘morally’ wrong. However, the connection, or misconnection, between law and morals is not made explicit and more could have been made of this misalignment.
In Chapter 3 the author starts to add some of the ‘missing’ details from the first two chapters. The third chapter examines the historical uses of the death penalty (45–52). Here Franck provides an interesting precis of the way in which some modern experts believe the death penalty began as a form of punishment. From the preservation of dynastic societies and the lack of a legal system, the author moves through the use of the death penalty as an arbitrary instrument of power to the development of a theocratic retaliation theory (47–8). Franck then explains that beginning with the Enlightenment, the theocratic retaliation theory was questioned and he makes brief reference to the works of Rousseau, Filangieri, Beccaria, and various European rulers, and to the later work of Bentham (49–50). These pro-abolitionist stances are counterbalanced by a description of the ‘secularised retaliation theory of Kant and Hegel ...’ (50) and the phrenological, criminological and positivist movements of the 19th century. The chapter concludes with a note about the way in which attitudes shift over time. For instance, from the mid-19th century, in certain jurisdictions within and beyond Europe, the death penalty was abolished; however, the world wars saw a stop to the abolitionist movement, which was subsequently revived worldwide by the development of the Universal Declaration of Human Rights in the mid-20th century (51–2).
Chapter 4 outlines the way the death penalty has been dealt with by international law, by multi-national organisations and through domestic courts applying, or considering, international law (53–78). Franck begins with an acknowledgment that criminal law and procedure is a protected part of domestic jurisdictions; however, this is limited to the extent that a state can opt into international agreements. Franck then details the role of the United Nations and its agenda on the death penalty: for instance, the introduction of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the five-yearly Secretary-General’s Report, and the exclusion of the death penalty from the International Criminal Courts (53–61). This is followed by a description of European manoeuvres: the European Convention for the Protection of Human Rights and Fundamental Freedoms, the case law of the European Court of Human Rights, Recommendations and Resolutions of the Parliamentary Assembly of the Council of Europe (61–5), and other regional arrangements. Franck then examines the Geneva Conventions of 1949 and their additional protocols of 1977 (68–9), and the exemptions from the use of the death penalty: minors, pregnant women and the mentally retarded (70–2). The chapter concludes with a series of casenotes from the United States and South Africa designed to show the manner in which domestic constitutional issues can be affected by consideration, or the lack thereof, of international perspectives on the death penalty (72–5), and the link between the death penalty and cruel and inhuman punishment (75–8), respectively.
Chapter 5 is a large chapter examining the worldwide review of the use of the death penalty (75–8). Statistically, ‘the number of states abolishing capital punishment increased’ in every decade since 1948, yet ‘a majority of states continued to employ capital punishment’ (79). This chapter is largely constituted by an alphabetical travelogue of those nations of interest to Franck due to their recent, or continued, use of the death penalty in some form. It is an interesting read because it highlights the difficulties that abolitionists face — there is such a diversity of reasons for its use. Interestingly, Uruguay is in the list despite the fact that it last used the death penalty in 1905 and has prohibited its use under its Constitution.
Chapter 6 gave Franck an opportunity to discuss his native Sweden and the historical development to its current position (137–47). While the review of the enlightenment kings and various Swedish Criminal Codes is interesting from an historical comparative perspective, perhaps the section of most relevance concerns the Swedish ‘Barometer of Youth’ surveys of the mid-1990s. These surveys indicated a swing against the abolitionist stance but are countered by Franck’s concern about the way in which opinion polls are conducted, the level of ignorance of exactly what the death penalty means, whether a person would be involved in a legal killing process, and the influence of ‘get tough on crime’ political catchphrases (146–7).
The brief final chapter is perhaps one of the most thought-provoking of all. This chapter examines the death penalty and democracy in the particular context of citizenship and tolerance (149–54), citizenship containing the fusion of the right to certain benefits and the equivalent responsibility to protect those rights and tolerance being one of the responsibilities carried by citizens of democracies. Franck argues that ‘(i)ntolerance ... constitutes an important threat to one of the cornerstones in democracy, namely freedom of opinion’ and the ‘rights of other persons’ (149–54). Franck dissects the Swedish national survey of intolerance and found that, in relation to intolerance as exhibited by being for the death penalty, there was little distinction between genders or political persuasions; however, there appears to be a rising pro-capital punishment stance among young people (149–50). It also covers some of the broader jurisprudential questions associated with the death penalty but in a limited way. Specifically, Franck discusses the future of democracy, the death penalty as an instrument of oppression, and the right of a state to kill from an historical perspective, and concludes that the death penalty is undemocratic.
The appendixes include:
• Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 (European Convention on Human Rights) — excerpts;
• Protocol No 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty, 1983;
• Protocol No 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Concerning the Abolition of the Death Penalty in All Circumstances, 2002;
• Explanatory Report to Protocol 13 (as adopted by the Committee of Ministers on 21 February 2002);
• Charter of Fundamental Rights of the European Union, 2002 — excerpts; and
• European Union Minimum Standards Paper, 1998.
While limited in certain ways, this is a valuable introductory resource for any reader interested in the death penalty and its place within the legal systems of many nations throughout the world.
School of Law
University of Western Sydney
 As the editor notes on p 1, ‘Much of it is anecdotal and impressionistic ...’
 To be fair to the editor, this is acknowledged on p ix: ‘Completing an unfinished opus is a bit like wearing a beautiful suit that you have inherited. The material is gorgeous and tailoring impeccable, but a few inevitable alterations are necessary so that it fits properly and conforms to contemporary styles. Inevitably, something about the garment will always give its provenance away anyway.’
 Member of the Executive Board of Amnesty International; Swedish Parliamentary Delegate to Council of Europe; Rapporteur to Council of Europe on death penalty.
 Chair of the Board, Institute of International Criminal Investigations; Professor of Human Rights Law at the National University of Ireland, Galway; and Director of the Irish Centre for Human Rights.
 This is better explained in Chapter 3.
 The United Nations Declaration of Human Rights (1948) and International Covenants (1966).
 ‘What indeed, is the death penalty if not the ultimate form of torture?’: Amnesty International representative question to the Council of Europe’s legal council, 21 December 1987, at 35.
 ‘The fundamental problem with the death penalty is clear: it is irrevocable and a mistake can never be put right. People who have been killed “legally” by the state can obviously never be brought back to life’, at 40.
 Remember the death of Socrates: 46.
 Which led, in part, to an authoritarian social order in Germany and Italy, where obedience was commanded by the state at all costs: 51.
 The American Convention on Human Rights, the European Union and the Organisation for Security and Co-operation in Europe: 65–8.
 Franck quotes the opinions of Blackmun J in Collins v Collins 114 SCt 1127 (1994), ‘No longer will I tinker with the machinery of death’, and Scalia J in Atkins v Virginia (2002), who described international authorities on the death penalty as ‘irrelevant’ and its ‘notions of justice are (thankfully) not always those of our people as evidence of the conservative voice on the American bench’.