Abolition of the Death Penalty: China in World
Perspective
Roger Hood
*
This article outlines changes that the author has observed in the debate on the death penalty within
Chinese academic and judicial circles over the past decade. It seeks to show that the debate has
moved from a defensive posture to one which is willing to embrace to a degree the human rights
objections to capital punishment that have been created by a ‘new dynamic’ rooted in international
human rights instruments and conventions, and promoted by abolitionist countries in Europe. It
outlines the ideology that rejects capital punishment and shows how it has, within a short period
of time, transformed the status of capital punishment, so that now there are only a minority of
states that cling to it, and most of these have come to recognise that it can only be imposed under
restrictive safeguards. The article ends by noting the inuence of these ideas on the debate in
China, especially on the argument that Chinese people have a different cultural attitude towards
the death penalty based on the ‘life for a life’ principle which makes the public hostile to abolition
of capital punishment. The possibility of further reforms leading to the abolition of the death
penalty in China is discussed in the light of new data which has emerged from important recent
research on public opinion and capital punishment. It concludes that it is not so much the general
public that needs to be inuenced; rather it is the legal practitioners and political leaders who need
to embrace the human rights objections to capital punishment.
I. Introduction
Since the late 1990s the European Union (EU) has been engaged with China in dialogues,
seminars and projects aimed to create and then develop a debate that would be conducive
to the abolition of the death penalty in China. It is timely, therefore, to reect on what
has been achieved since then and, in particular, on where China now stands in relation
to its justication for retaining the death penalty, its attempts to curtail the use of capital
punishment, and the prospects for complete abolition. I have been fortunate to have
participated in at least a dozen meetings since 1999 where reform of the death penalty in
China has been discussed. This article, therefore, reects my own perception of how the
(2009) 1 City University of Hong Kong Law Review 1–21.
* Professor Emeritus of Criminology, University of Oxford; Emeritus Fellow of All Souls College, Oxford;
Adjunct Professor, School of Law, City University of Hong Kong; Visiting Professor, University of Virginia
Law School.
City University of Hong Kong Law Review2 [ Vol 1:1
debate has developed over the last decade.
1
It is fair to say that the starting point from the Chinese side was that the death penalty
would be abolished sometime in the future ‘when the time is right’. But this was certainly
likely to be in the far distant future. Indeed, some Chinese commentators referred to the
very long time-span between when the possibility of abolition was rst raised in European
nations and its nal abolition, implying that such a long process, maybe as long as 100
years, was somehow inevitable. Furthermore, they noted that the United States (US)
and Japan still retained the death penalty, even though they had achieved a high level of
socio-economic development. The reasons put forward both to explain and justify why
the death penalty remained essential to the maintenance of order and stability in China
were varied, but included the belief that retribution based on the notion of ‘a life for a life’
was deeply embedded in Chinese culture; that it, therefore, had the overwhelming public
support of over 95 per cent of the population;
2
that ignoring this support might cause
social instability; and that China was not only the largest and most populous country in
the world but also not yet sufciently economically developed that it could do away with
an effective criminal sanction. It was argued that the death penalty was ‘indispensable’
as a deterrent and when increased in use had led to a large fall in crime rates in China
(although, as usual, no gures were supplied).
3
The early meetings were characterised by a vigorous defense of China’s position, as
well as by claims that the new Criminal Code of 1997
4
already complied with international
standards regarding the scope of capital punishment, as set out in Article 6(2) of the
International Covenant on Civil and Political Rights (ICCPR), which states that ‘In
countries that have not already abolished the death penalty, sentence of death may be
1
It also draws in part on work previously published jointly with my colleague Dr Carolyn Hoyle. See Roger
Hood and Carolyn Hoyle, The Death Penalty: A Worldwide Perspective (4
th
edn OUP, Oxford 2008); Roger
Hood and Carolyn Hoyle, ‘Abolishing the Death Penalty Worldwide: The Impact of a “New Dynamic”’ in
Michael Tonry (ed) Crime and Justice: A Review of Research, vol. 38 (University of Chicago Press, Chicago
2009) (forthcoming). I am grateful to Dr Hoyle for agreeing to my use of this material.
2
See Dietrich Oberwittler and Shenghui Qi, Public Opinion on the Death Penalty in China (Max-Plank-
Institute for Foreign and International Criminal Law, Freiburg 2009) 6, citing Hu Yunteng. See also Hu
Yungten, ‘On the Death Penalty at the Turning of the Century’ in M Nowak and Xin Chunying (eds), ‘EU-
China Human Rights Dialogue: Proceedings of the Second EU-China Legal Experts’ (2000) (Seminar held
in Beijing on 19–20 October 1998) 88–94.
3
According to a Chinese speaker at an EU-China Human Rights Seminar held in 2002. For a useful short
historical background to the use of the death penalty in China, see Nicola Macbean, ‘The Death Penalty
in China: Towards the Rule of Law’ in Jon Yorke (ed), Against the Death Penalty: International Initiatives
and Implications (Ashgate, Farnham Surrey 2008) 205–227. A more comprehensive survey is to be found in
David T Johnson and Franklin E Zimring, The Next Frontier: National Development, Political Change, and
the Death Penalty in Asia (OUP, New York 2009) 225–286.
4
Article 48 of Criminal Law of the People’s Republic of China (as amended 1997): ‘The death penalty is
only to be applied to criminal elements who commit the most heinous crimes. In the case of a criminal
element who should be sentenced to death, if immediate execution is not essential, a two-year suspension of
execution may be announced at the same time the sentence of death is imposed.’
3 Abolition of the Death Penalty: China in World Perspective2009 ]
imposed only for the most serious crimes …’
5
This limitation was subsequently redened
in Safeguard 1 of the Safeguards Guaranteeing Protection of the Rights of those Facing the
Death Penalty adopted by the United Nations Economic and Social Council (ECOSOC)
in 1984 as ‘intentional crimes with lethal or extremely grave consequences’.
6
The Chinese
scholars were referring to Article 48 of the 1997 Criminal Code which restricted the death
penalty to the ‘most serious crimes’ and to the fact that the death penalty no longer applied
to hooliganism, petty theft and ‘speculative proteering’, nor to those who committed
a capital crime when under 18 years of age or to pregnant women.
7
However, the death
penalty could still be imposed for a wide range of crimes, 68 to be precise. Although it
was often claimed that the category of ‘most serious crimes’ largely encompassed violent
offences, there was no doubt that it was also enforced for serious economic offences,
corruption, certain sex offences, trading in narcotics, and several other types of non-lethal
crime. The debate was stied by the complete lack of any statistical data to show how
many persons were sentenced to death each year in China, how many of them after appeal
were executed, and for which categories of offence. No one from the Chinese side that
I can recall argued openly at that time for the lifting of the state imposed secrecy that
surrounds capital punishment. It may be that scholars saw no hope of publication while
the probable number of those executed remained so high — estimates ranged from a few
thousand to 15,000 per annum
8
— that to publish the real number would harm China’s
international reputation. The pursuit of vigorous enforcement of the death penalty came
home to the European delegates during an EU-China Human Rights Seminar in Beijing in
the spring of 2001 at which the death penalty was a major item on the agenda, but during
which a ‘strike hard’ campaign was reported to have resulted in over 1,000 executions
within one month.
9
Eight years later, in 2009, I can report that the discussions have in many ways been
transformed. The reform of the death penalty is, according to a senior retired judge of
the Supreme People’s Court, now ‘at the top of the agenda’. The former defensiveness
has largely evaporated and the debate has come to centre on how abolition might be
achieved and what lessons can be learned from experiences abroad in this regard; how,
pending eventual abolition, pre-trial and fair trial procedures with adequate legal defence
in cases liable to the death penalty can be brought into line with international standards to
5
UNGA Res 2200A (XXI), GAOR 21
st
session Supp No 16, 53 UN Doc A/6316 (1966); UNTS 171, entered
into force on 23 March 1976.
6
ECOSOC Resolution 1984/50.
7
‘The death penalty is not to be applied to persons who have not reached the age of eighteen at the time the
crime is committed or to women who are pregnant at the time of adjudication.’ Criminal Law of PRC (n 4)
art 49.
8
Macbean (n 3) 211, 219; Johnson and Zimring (n 3) 234–242.
9
Hood and Hoyle, 2008 (n 1) 99, 144–146. Also see Susan Trevaskes, ‘Severe and Swift Justice in China’
(2007) 47 British Journal of Criminology 23.
City University of Hong Kong Law Review4 [ Vol 1:1
guarantee procedural justice;
10
how the number of citizens put to death can be restricted
and the iniction of the death penalty be based on more rational criteria and made more
equitably, again in line with international human rights standards; and how public opinion
can be moderated and cultural attitudes changed to make abolition acceptable to Chinese
people, both the masses and the legislative and judicial elites. The subject is now being
gradually, even if not fully, opened up to research, both on the way in which justice is
administered and on public attitudes towards the death penalty. The return of the review
of all death penalty verdicts from the provincial High Courts to the Supreme People’s
Court at the beginning of 2007 has been of particular signicance, for it signaled the
introduction of measures, including the development of guidelines, aimed to ensure more
consistency combined with greater parsimony in the types of crime actually punished
by death and the number of persons who are in practice executed — in fact, to replace
previous practices with a policy aimed to impose the death penalty ‘strictly, cautiously and
fairly … on a tiny number of serious criminal offenders.’
11
The implication of this policy
statement and the insistence on review nally (in 2007) marked the end of ‘strike hard’
campaigns (Yanda) during which thousands had been put to death,
12
and, as late as March
2007, the inhumane practice of parading condemned criminals through the streets and at
sentencing rallies prior to their execution.
13
This was part of the project for Constructing a
Socialist Harmonious Society, the criminal policy of which was to ‘Combine Punishment
with Leniency’.
14
Furthermore, a rm commitment was made in the UN Human Rights
Council in March 2007 by China’s representative, Mr La Yifan, that ‘The death penalty’s
scope of application was to be reviewed shortly, and it was expected that this scope would
be reduced, with the nal aim of abolishment’.
15
Although the Chinese authorities still insist that the death penalty is needed in current
socio-economic circumstances and that the issue is one of reform and not abolition at this
stage, and although it is impossible to verify the pace of change in the use of the death
10
See Hans-Jörg Albrecht and Research Unit of the Death Penalty Cases Survey, Institute of Law, Chinese
Academy of Social Sciences, Strengthening the Defence in Death Penalty Cases in the People’s Republic of
China (Max Planck Institute for Foreign and International Criminal Law, Freiburg-i-Breisgau 2006).
11
Chief Justice Xiao Yang, President of the Supreme People’s Court (Speech to the National Legislature on 10
March 2008) <http://English.sina.com/china/q/2008/0309/149441.html> accessed 19 August 2009. He also
stated that as few executions as possible should be carried out and as cautiously as possible in order to avoid
wrongful executions. See also the directive in 2005 for appeals in death penalty sentences with immediate
(rather than suspended) execution to be heard in open court.
12
See Trevaskes (n 9).
13
Macbean (n 3) 207.
14
Zhao Bingzhi, ‘Existing State and Prospect of Death Penalty Reform in China at Present Time’, Working
Papers of the Launch Seminar of the China-EU Project: Moving the Debate Forward: China’s Use of the
Death Penalty (Seminar held at College for Criminal Law Science, Beijing Normal University and Great
Britain-China Centre in June 2007)162–168.
15
Human Rights Committee, ‘Human Rights Council Opens Fourth Session’ (12 March 2007) Press Release
HRC/07/3, 9.
5 Abolition of the Death Penalty: China in World Perspective2009 ]
penalty while the gures remain under the cloud of state secrecy,
16
no one can doubt
that a movement towards restriction and eventual abolition has got under way. And even
though China has yet to ratify the ICCPR, which it signed in 1998, despite hopes that it
would do so in the year of the Olympic Games to mark its commitment to human rights,
it does appear to be rmly on the path laid down by the United Nations (UN) in 1971
‘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’.
17
The purpose of this article is to place these developments in China within an international
context; to demonstrate that a ‘new dynamic’ is at work, based on human rights principles
and their application in international law; to show what lessons may be learned from
international developments; and nally to raise the question of what prospects there may
be for China to abolish the death penalty sooner rather than later.
18
II. The Movement for Death Penalty Reform:
How Far and How Fast has it Progressed?
Let us return to the proposition that the road to abolition must inevitably be long and that
the goal can only be reached in stages. It is true that the abolitionist movement, which had
had its roots in the 18
th
century European Enlightenment, had spread since the early to
mid-19
th
century rather slowly through the countries of Western Europe, South America
and in a minority of states of the US. By the end of 1988, a mere 20 years ago, it still
encompassed only 52 of the then 180 member states of the UN, only 35 of whom had
eliminated it altogether from their penal and military codes — the remaining 17 reserving
it for crimes against the state and under military law in time of war. Yet since the end of
the 1980s there has been a transformation in the number of countries that have abolished
capital punishment and in the speed with which they have done so. By the end of June
2009, the number of abolitionist nations had reached 103 (95 of them having abolished
it for all crimes in civil and military law, in peacetime and in time of war, plus 8 for all
ordinary crimes, except military crimes or espionage in time of war). In the US, the states
of New Jersey (2007) and New Mexico (2009) abolished capital punishment and the death
16
It was reported in 2008 that the Chief Justice had announced that the Supreme People’s Court had rejected
15 per cent of all death sentences imposed by lower courts in 2007. See ‘China Court Rejects Death Rulings’
BBC News (London 8 March 2008) <http://news.bbc.co.uk/1/hi/world/asia-pacic/7284831.stm> accessed
17 July 2009. The author has heard estimates of a reduction of up to 25 per cent mentioned at meetings in
China in 2009.
17
UN GA Res 2857 (XXVI) (20 December 1971) and Resolution A/32/61 (8 December 1977). See United
Nations, ‘United Nations Action in the Field of Capital Punishment’ in United Nations Crime Prevention and
Criminal Justice Newsletter, Nos 12 and 13 (1986) 2; William A Schabas, ‘The United Nations and Abolition
of the Death Penalty’ in Yorke (ed) (n 3) 9–41, 15–16.
18
For a much more detailed review and discussion of these issues, see Hood and Hoyle, 2008 (n 1). A translation
into Chinese will be published by The People’s Security University Press in October 2009.
City University of Hong Kong Law Review6 [ Vol 1:1
penalty has not been reinstated in New York State after the state Supreme Court had found
it to be unconstitutional in 2004.
Among the 93 countries that retain the death penalty in law, only 48 have executed
anyone within the past 10 years — only a quarter of all nations. The remaining 45 are
classied by the UN as being abolitionist de facto, not having executed anyone for at
least 10 years. Of these, Amnesty International regards 35 of them as truly ‘abolitionist
in practice’, having a settled policy not to carry out executions. Thus, when these 35 are
added to the countries that are abolitionist in law, 71 per cent (138) of states no longer
inict or intend to inict the ultimate penalty.
19
Ninety-two per cent (95) of the 103
abolitionist countries have now completely abolished the death penalty, in peacetime and
in wartime, under civil as well as military law, a much higher proportion than at the end
of 1988, when only two-thirds of abolitionist countries (35 of 52) had abolished it for all
crimes.
20
At the UN General Assembly in December 2008, 106 countries voted in favour
of a resolution calling for a world-wide moratorium on death sentences and executions,
with only 46 countries voting against it (see below page 9).
21
In short, a new dynamic has
been at work.
III. The Ideology of the ‘New Dynamic’
So why has this movement towards universal abolition made such headway over the last
20 years? What has been the motivating force and by what political processes has the goal
been achieved?
There can be no doubt that the latest wave of abolition has been inuenced greatly
by the process of democratisation in Europe, including the former Soviet empire, and
freedom from colonialism and post-colonial repression in Africa and several other parts
of the world, including Cambodia in Asia. Foremost among these inuences has been the
development of international human rights law through international covenants and treaties
19
This updates Table 1.1 in Hood and Hoyle, 2008 (n 1) 14. The data has been collated by the author from
Amnesty International reports over many years. However, although the total number of countries that are
abolitionist in law and practice (138) is the same as that published by Amnesty International in March
2009 (AI-Index ACT 50/003/2009), the breakdown of gures for abolitionist for all crimes, abolitionist for
ordinary crimes only, and abolitionist in practice in this paper are slightly different and have been brought up
to date.
20
Only ve nations which abolished capital punishment since 1961, reintroduced it: Nepal (1985), the
Philippines (1987), Gambia (1991), Papua New Guinea (1995), and Liberia (for kidnapping and murder in
2008, despite having ratied in 2005 Protocol No. 2 to the ICCPR abolishing the death penalty and banning
its reintroduction). Amnesty International currently classies Liberia as abolitionist in practice. It was soon
abolished again in Nepal. Only one of the other four — the Philippines — resumed executions (7 in 1999
and 2000) but then, after a moratorium, the death penalty was abolished again in June 2006 by overwhelming
majorities of both the Senate and Congress with the full support of the President.
21
The largest group among the opposition comprised countries with a majority Muslim population, followed
by countries of the British Commonwealth. China, Japan, North Korea, Mongolia and Thailand opposed the
resolution as did Zimbabwe. In Europe and the Americas, only the US opposed the resolution.
7 Abolition of the Death Penalty: China in World Perspective2009 ]
and their extension through protocols to include the abolition of the death penalty, most
notably Protocol No. 2 to the ICCPR (1989), Protocols Nos. 6 (1982) and 13 (2002) to
the European Convention for the Protection of Human Rights and Fundamental Freedoms
(ECHR),
22
and the Protocol to the American Convention on Human Rights to Abolish
the Death Penalty (1990),
23
as well as new democratically inspired constitutions in many
countries that embody the right to life. William Schabas, who has provided an excellent
account of the role played by the UN in the movement to abolish the death penalty, notes
that the adoption of Protocol No. 2 to the ICCPR in 1989, was perhaps ‘inuenced by the
heady atmosphere that accompanied the end of the Cold War … that seemed to inaugurate
a new era for the promotion of human rights at the United Nations’.
24
This new dynamic embraced the view that capital punishment should not be regarded
simply as a weapon of national criminal justice policy to be enforced according to a
government’s assessment of its value as a crime control measure, nor as an issue to be
judged in terms of local cultural or socio-political values. Capital punishment should
instead be treated as a fundamental violation of universal human rights: not only the right
to life but the right to be free from excessive, repressive and tortuous punishments —
including the risk that an innocent or undeserving person may be executed. Altogether, by
the beginning of 2009, 77 countries had ratied and a further four had signed one or other
of the international treaties or conventions mentioned above which bar the imposition and
reintroduction of capital punishment.
But it has needed political leadership and judicial support to bring about abolition.
Nowhere has it been led by grassroots public opinion, although opinion favouring capital
punishment has been changed once abolition has become established — it becomes
dened as a barbarity of the past. A well-known example is the determination of President
Mitterrand of France who stood for election in 1981 on a manifesto that included abolition
of the death penalty despite 63 per cent of the general public being in favour of capital
punishment. He was elected and after abolition, was re-elected. This showed that the public
were ready to accept leadership on this issue and subsequently France has become one of
the leading nations in Europe to protest against capital punishment wherever it occurs in
the world. In many countries in Eastern Europe and former Soviet Central Asia, as well as
in Africa, the Head of State has led the way in bringing about abolition. But of even greater
signicance for the international movement has been the political momentum provided by
the commitment of the Council of Europe since 1994 and then of the powerful EU since
1998 not only to a ‘death penalty free’ continent but, through a diplomatic offensive, to
work to convince ‘third countries’ that ‘the abolition of the death penalty contributes to
22
European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) Protocol 6
and Protocol 13, <http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/
EnglishAnglais.pdf> accessed 19 August 2009.
23
Protocol to the American Convention on Human Rights to Abolish Death Penalty (adopted 8 August 1990)
OAS Treaty Series No 73 (1990).
24
Schabas (n 17) 9–41.
City University of Hong Kong Law Review8 [ Vol 1:1
the enhancement of human dignity and the progressive development of human rights’.
25
The premise of the anti-capital punishment movement is that the execution of captive
citizens, whatever crimes they had committed and wherever they reside in the world, is
a fundamental denial of their humanity and right to existence. Countries of the EU and
several others such as Canada and South Africa bar the extradition of persons who might
face the death penalty without a solid assurance from the requesting country that the
person concerned will not, if convicted, be sentenced to death or executed. In other words,
the issue has moved from utilitarian deterrent considerations to the normative rejection
of state killing of convicted prisoners as an arm of criminal justice. A striking statement
of the primacy of human rights over considerations of public opinion or other utilitarian
arguments that a government may put forward for retention of the death penalty was the
judgment of Mr Justice Chaskalson in the case of State v Makwanyane before the South
African Constitutional Court in 1995:
Public opinion may have some relevance to the enquiry, but in itself is no
substitute for the duty vested in the Courts to interpret the Constitution and
to uphold its provisions without fear or favour. If public opinion were to
be decisive, there would be no need for constitutional adjudication. The
protection of rights could then be left to parliament, which has a mandate
from the public, and is answerable to the public for the way its mandate is
exercised … The very reason … for vesting the power of judicial review
in the courts, was to protect the rights of minorities and others who cannot
protect their rights adequately through the democratic process. Those who are
entitled to claim this protection include the social outcasts and marginalized
people in our society. It is only if there is a willingness to protect the worst
and weakest amongst us that all of us can be secure that our own rights will
be protected.
26
To the same effect, in 2003, the European Court of Human Rights in the case of Öcalan
v Turkey declared that the imposition of the death penalty within Europe could no longer
be protected by Article 2 of the ECHR,
27
but must now be regarded as a cruel, inhuman
and degrading punishment banned by Article 3 of the ECHR (which is mirrored in Article
7 of the ICCPR).
28
25
Council of the European Union, Guidelines to EU Policy towards Third Countries on the Death Penalty,
(Brussels, 3 June 1998) and Death is not Justice: The Council of Europe and the Death Penalty (Strasbourg,
updated March 2004). See also Eva Girling, ‘European Identity and the Mission against the Death Penalty in
the United States’ in A Sarat and C Boulanger (eds), The Cultural Lives of Capital Punishment: Comparative
Perspectives (Stanford University Press, Stanford California 2005) 112–128.
26
S v Makwanyane (1995) (3) SA 391 [88].
27
Article 2 (1) states: ‘Everyone’s right to life shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court following his conviction of a crime for which this
penalty is provided by law.’
28
Öcalan v Turkey (App no 46221/99) ECHR 12 March 2003 and 12 May 2005. See Saul Lehrfreund,
‘International Standards Restricting the Death Penalty and the Impact of International Human Rights
Obligations on Domestic Law’(2009), available from The Death Penalty Project, London <http://www.
deathpenaltyproject.org/> accessed 19 August 2009.
9 Abolition of the Death Penalty: China in World Perspective2009 ]
IV. The Impact of the ‘New Dynamic’
Largely under the inuence of these ideas, the abolitionist movement has spread to a far
greater range of nations across the globe. In Europe, only Belarus now retains capital
punishment and has continued to carry out executions, although on a diminishing scale.
The fact that it abstained on the moratorium resolution at the UN in 2007 and 2008,
29
and
that it has aspirations to join the Council of Europe indicate that it will probably not be
long before capital punishment, already much restricted, is abandoned altogether. The only
other country of the former Soviet Union that retains capital punishment is Tajikistan, but
there has been a moratorium on all executions since 2004.
In South America only three small countries hang on to it,
30
although none have carried
out an execution for at least 10 years. There have been no executions in communist Cuba
since 2003 and Cuba abstained on the recent moratorium resolution at the UN. In the
Central America state of Guatemala, where no executions have taken place since 2000,
both the President and Secretary of State for Human Rights have spoken out strongly in
favour of abolition and in 2004, the Supreme Court proposed a new Penal Code without
capital punishment.
31
In the African region, there has been a remarkable conversion to abolition. Fifteen
countries are now completely abolitionist
32
and another 21 are abolitionist de facto,
33
whereas 20 years ago only the small island states of Seychelles (in 1979 for ordinary
crimes only) and Cape Verde (in 1981) had abolished capital punishment.
34
In November
of 2008, a resolution calling for a moratorium on all executions in African countries was
adopted by the African Commission on Human and Peoples’ Rights.
35
Although most countries in the Middle East and North Africa, where Islam is the
dominant religion, retain the death penalty, several of them — Tunisia, Algeria and
Morocco — have not carried out any judicial executions for over 10 years, nor have
executions occurred frequently in most of the Arab Gulf States. Abolition is being
considered in both Jordan and Morocco (both of which abstained in the moratorium
vote at the UN in December 2008 along with ve other retentionist Muslim countries,
29
UNGA Res 10678 (18 December 2007) UN Doc A/RES/62/149 and UNGA Res 10801 (18 December 2008)
UN Doc A/RES/63/168.
30
Belize, Guyana and Suriname.
31
See International Federation of Human Rights (FIDH), The Death Penalty in Guatemala: On the Road
towards Abolition (July 2005) 422/2.
32
Angola, Burundi, Cape Verde, Côte d’Ivoire, Djibouti, Guinea Bissau, Mauritius, Mozambique, Namibia,
Rwanda, Sao Tome and Principe, Senegal, Seychelles, South Africa and Togo.
33
Benin, Burkina Faso, Cameroon, Central African Republic, Comoros, Congo (Brazzaville), Eritrea, Gabon,
Gambia, Ghana, Kenya, Liberia, Lesotho, Madagascar, Malawi, Mali, Mauritania, Niger, Swaziland,
Tanzania and Zambia.
34
The African Union member states that still retain the death penalty and have carried out executions within
the past 10 years are: Botswana, Chad, Congo (Democratic Republic), Egypt, Equatorial Guinea, Ethiopia,
Guinea, Libya, Nigeria, Sierra Leone, Somalia, Sudan, Uganda and Zimbabwe.
35
Amnesty International, ‘Growing Calls for End to Executions at UN’, <www.amnesty.org/en/news-and-
updates/good-news/growing-calls-end-executions-un-20081218> accessed 3 July 2009.
City University of Hong Kong Law Review10 [ Vol 1:1
while Somalia voted in favour). It is notable that several secular states with large Muslim
majorities have already joined the abolitionist movement such as Albania, Azerbaijan,
Bosnia-Herzegovina, Turkey, Turkmenistan and Senegal. Furthermore, only a handful of
retentionist Muslim countries make regular and large scale use of capital punishment as a
crime control measure: Iran, Saudi Arabia, Pakistan, Iraq and Yemen. Whether and at what
speed retentionist Muslim countries will accept the human rights perspective on the death
penalty will depend on whether political stability can be achieved, whether governments
remain politically and legally dominated by followers of fundamentalist interpretations of
Islam, or whether they move towards secular democratic government, which allows for
a more modern, ‘scientic’ and less authoritarian interpretation of Islam.
36
Overall, the
prospects for a steady movement towards abolition in the Muslim world are not nearly as
bleak as some may have imagined.
The death penalty has yet to be abolished in the Anglophone Commonwealth island
states of the Caribbean, but all except three of them may be classied as ‘thwarted’
executioners.
37
They have been thwarted by the activities of dedicated human rights
lawyers who have challenged the constitutionality of the death penalty, particularly the
mandatory death penalty, and many aspects of the procedures leading to conviction,
sentence and beyond. But so far, attempts to abolish capital punishment (as in Jamaica
in 2008) have been unsuccessful, mainly because of the very high homicide rates that
currently blight these countries. Nevertheless, capital punishment is largely symbolic, and
the issue now for these countries is to face the fact that experience has shown that the
death penalty cannot be applied without the violation not only of the right to life but of
freedom from cruel, inhuman, or degrading treatment or punishment, both of which are,
in fact, protected by their constitutions.
In Asia and Africa, the Commonwealth countries that retain and wish to continue to
execute offenders are now in a minority. When one examines the incidence of executions,
it becomes clear that only ve of the nine ‘actively retentionist’ Commonwealth non-
Muslim countries (Botswana, India, Malaysia, Singapore and Uganda) have carried
out any executions within the ve years (2003–2007 inclusive) and only one of them
(Singapore) has conducted an execution in every one of these ve years. Furthermore,
in all these countries the rate of executions has been falling: most notable is Singapore
where the number of persons put to death fell from a reported 76 in 1994 to 19 in 2003
and to only two in 2007.
38
Thus, it appears evident that most retentionist Commonwealth
countries maintain the power to sentence to death for local political reasons and that in
doing so they believe that it is necessary to reject the view that the issue is one that should
be decided by reference to international customary human rights norms. Nevertheless,
36
See M Cherif Bassouini, ‘Death as a Penalty in the Shari’ā’ in Peter Hodgkinson and William A Schabas
(eds), Capital Punishment, Strategies for Abolition (CUP, Cambridge 2004) 169–185.
37
The exceptions being the still active retentionist Bahamas, St. Kitts and Nevis, and Trinidad and Tobago. The
most recent execution in the Bahamas took place in 2000 and in Trinidad and Tobago in 1999, when 10 men
were hanged, nine of them on the same occasion. In December 2008, a man was hanged in St. Kitts.
38
See Johnson and Zimring (n 3) 410.
11 Abolition of the Death Penalty: China in World Perspective2009 ]
the movement in most of these countries is clearly in the direction of abolition through
restriction.
39
While only four Asian states (Nepal, Bhutan, Cambodia, and the Philippines) have
so far completely abolished the death penalty, six others are now abolitionist de facto,
including most recently South Korea.
40
In India — with the second largest population in
the world, and thus a useful comparison with China — death penalty is in principle to be
imposed in only the ‘rarest of rare’ cases. Although there is a good deal of evidence that
this standard is not always strictly interpreted,
41
the fact of the matter is that the executive
branch of government has used its power to delay executions through the clemency
process so that very few persons have been executed — and then only sporadically. The
last execution took place in 2004, the rst since 1997.
42
The death penalty is retained, but
purely for symbolic purposes: a few executions now and then cannot be regarded as a tool
of criminal justice in such a populous country. It appears that India could easily abolish
capital punishment without it having any serious internal political consequences.
Elsewhere in Asia no executions have been carried out in Taiwan since 2006 as it is now
ofcially on the road to abolition.
43
As a commitment to a human rights agenda, Taiwan
endorsed the ICCPR in May 2009 as part of its domestic law and undertook to ensure
that all its practices conformed to the ICCPR.
44
It may be that Thailand, where there have
been no executions since the new constitution was adopted in 2007, will also embrace
abolition. Vietnam, like China, has entered into dialogues with the EU, on the scope of
capital punishment and it is indicative of a more open mind on the issue, despite the
secrecy which surrounds data on executions that Vietnam chose to abstain at the UN on the
moratorium resolution in December 2007 and again in 2008.
45
The Japanese government
continues to protest that capital punishment is a matter for its own sovereignty and that
it is a criminal justice, not a human rights issue. Nevertheless, abolition is being openly
debated and the Japan Federation of Bar Associations, along with an anti-death penalty
organisation known as ‘Forum 90’, have brought many human rights abuses associated
with the secretive administration of capital punishment to the attention of the Japanese
39
Roger Hood, ‘Capital Punishment: The Commonwealth in World Perspective’ (2008) 17(2) The
Commonwealth Lawyer 30–35. It should be noted that the Commonwealth Lawyers’ Association, meeting in
Hong Kong in April 2009, passed a resolution calling for the abolition of capital punishment in Commonwealth
jurisdictions.
40
Brunei Darussalam, Laos, Maldives, Myanmar, South Korea and Sri Lanka. For an authoritative review of
the situation in Asia, see Johnson and Zimring (n 3) 16.
41
Bikram Jeet Batra, Lethal Lottery: The Death Penalty in India (May 2008) AI-Index ASA 20/006/2008.
42
Johnson and Zimring (n 3) 430.
43
International Federation of Human Rights (FIDH), The Death Penalty in Taiwan: Towards Abolition? (Report
no 450/2, June 2006).
44
Taiwan is not a member of the United Nations so could not ofcially ratify this treaty under international law.
See the article by Jerome A. Cohen and Yu-Jie Chen, ‘Taiwan’s Incorporation of the ICCPR and the ICESCR
into Domestic Law’ <www.usaisialaw.org/?=1142> accessed 4 July 2009.
45
See n 29.
City University of Hong Kong Law Review12 [ Vol 1:1
public and parliament.
46
The fact that the annual relatively small number of executions
varies according to the willingness of different Ministers of Justice to sign execution
orders, shows how contentious a subject capital punishment has become in Japan. North
Korea may well be affected by South Korea’s new status as an abolitionist de facto nation
which is moving clearly in the direction of abolition de jure. In Malaysia too, there are
signs of change. In 2006, the Malaysian Bar Association called for the abolition of the
death penalty and the Malaysian Cabinet Minister in charge of law was reported as saying:
‘I welcome the proposal. For me, a life is a life. No one has the right to take someone
else’s life, even if that person has taken another life’.
47
The position taken by the US may well have a crucial inuence on China’s decision
whether or not to abolish capital punishment. Despite the fact that many believe, as Franklin
Zimring has put it, that: ‘the endgame in the effort to purge the United States of the death
penalty has already been launched,’
48
the US has, yet to embrace the aspiration, embodied
in Article 6 of the ICCPR and UN Resolutions, to abolish the death penalty in due course.
So what, briey, are the prospects that the US will abandon capital punishment?
The government of the US made its position clear in its response to the 7
th
UN Survey
on Capital Punishment and the Implementation of the Safeguards Guaranteeing Protection
of the Rights of those Facing the Death Penalty in 2005:
We believe that in democratic societies the criminal justice system —
including the punishment prescribed for the most serious and aggravated
crimes — should reect the will of the people freely expressed and
appropriately implemented through their elected representatives.
49
However, there have been some signs of change and recognition of norms that have
been established elsewhere in the world. The decisions of the US Supreme Court to ban
the execution of the so-called mentally retarded
50
and of juveniles convicted of murders
committed before the age of 18,
51
both cited worldwide condemnation of these practices
as embodied in the UN Safeguards. To what extent a perhaps less conservative Supreme
Court in the future will build on these judgments, as capital punishment comes under more
and more critical scrutiny in the US, remains to be seen. In the meantime, international
criticism has continued unabated. Thus, in July 2006, the UN Human Rights Committee,
when considering the report by the US under Article 40 of the ICCPR, included in its
observations a statement calling for a moratorium to be placed on capital sentences ‘bearing
46
See Hood and Hoyle, 2008 (n 1) 94 and David T Johnson ‘Where the State Kills in Secret: Capital Punishment
in Japan’, (2006) 8 Punishment and Society 251, 263. See also Johnson and Zimring (n 3) 45–101.
47
Quoted in Amnesty International, Asia Death Penalty Blog (23 March 2006), <http://asiadeathpenalty.
blogspot.com/2006/03/renewed-debate-on-death-penalty-in.html> accessed 19 August 2009.
48
Franklin E Zimring, The Contradictions of American Capital Punishment (OUP, New York 2003) 205.
49
UN Doc E/2005/3 [17].
50
Atkins v Virginia 56 US 304 (2002).
51
Roper v Simmons 543 US 551 (2005).
13 Abolition of the Death Penalty: China in World Perspective2009 ]
in mind the desirability of abolishing the death penalty’. In fact, there has been a very low
incidence of executions in all but a handful of southern states. Fourteen of the 35 states
that currently retain the death penalty have executed no more than six people over the
past 30 years and two of them have executed no one. Eighty per cent of executions since
1976 have been carried out in just nine states.
52
No wonder that the death penalty has been
described by Carol and Jordan Steiker as ‘A Tale of Two Nations’.
53
Given the concerns
widely expressed about the possibility of error and the impossibility of extinguishing
all possibility of arbitrariness and discrimination, given the excessive and costly delays
in the administration of capital punishment and the cruelty inherent in the ‘death row’
phenomenon and the administration of execution, it seems likely that many more states
that retain the death penalty but rarely carry out executions will follow the example of
New Jersey, New York and New Mexico and abolish it altogether. This would leave a few
‘outliers’ and maybe in the end only Texas as an executing state. At that stage it would
be possible for the US Supreme Court to rule that because the majority of states had
abandoned the death penalty, ‘the evolving standards of decency that mark the progress of
a maturing society’
54
would no longer tolerate the use of such an inhuman and degrading
punishment in the US. If this comes to pass, supporters in the wider world of the view that
capital punishment is not inconsistent with respect for human dignity and human rights
will receive a body blow.
V. Speedy Routes to Abolition
When one examines the paths taken by the 54 nations that rst abolished the death penalty
either for ordinary crime in peacetime or for all crimes since the end of 1988,
55
one nds that
by the end of June 2009, 51 of them (94 per cent) had abolished it for all crimes completely
and another three countries solely for murder and other ordinary crimes.
56
Forty-three of
the 51 had gone straight from retaining the death penalty to complete abolition, without
rst abolishing it for ‘ordinary’ crimes only. In other words, 84 per cent moved straight
from retention of the death penalty for murder and sometimes other ‘ordinary’ crimes
as well as military crimes and crimes against the state to complete abolition ‘in one go’.
Taking into account those countries that rst abolished capital punishment by legislation
and later introduced it into the constitution, over half of the countries that have joined the
abolitionist movement and abolished capital punishment completely since 1988 have also
ensured through their own constitutions, usually related to the article specifying the right
to life and/or freedom from cruel and inhuman punishment or treatment, or through
52
Texas, Virginia, Oklahoma, Missouri, North Carolina, South Carolina, Georgia, Alabama and Florida.
53
C S Steiker and J M Steiker, ‘A Tale of Two Nations: Implementation of the Death Penalty in “Executing”
Versus “Symbolic” States in the United States’(2006) 84 Texas Law Review 1869.
54
Trop v Dulles 356 US 86 101 (1958).
55
Excluding countries that had previously abolished capital punishment for murder such as the United Kingdom
in 1965, although it did not abolish it for all crimes until 1998.
56
Chile, Kazakhstan and Latvia.
City University of Hong Kong Law Review14 [ Vol 1:1
interpretation of the constitution by the courts, as for example in Hungary and South
Africa,
57
that the death penalty cannot be reintroduced.
How swiftly did abolition follow from the last execution? According to Marc Ancel,
writing in the early 1960s, many countries that abolished capital punishment had rst
suspended executions for a considerable period of time and become abolitionist de
facto before abolishing it in law.
58
The theory was that the public had to get used to the
law not being enforced in practice before they would accept that executions were not
necessary. Yet in the last 20 years, only a minority, 21 (39 per cent) of the 54 countries
that rst abolished the death penalty since the beginning of 1989 (including the three
that abolished it for ordinary crimes only) had been through a 10-year abolitionist de
facto stage. The majority moved much faster to remove capital punishment by law. For
example, Turkmenistan abolished capital punishment in 1999, just two years after the last
execution; South Africa in 1995 just four years after. Thus, the pattern of a long drawn-out
process leading to abolition was not observed in well over half of those countries that have
embraced abolition in the last 20 years.
VI. Other Indicators of the ‘New Dynamic’
Where abolition has not yet been achieved, there has been a movement, in line with Article
6(2) of the ICCPR, to restrict the number of crimes for which the penalty is death, to make
it discretionary rather than mandatory (the latest country in the process of doing so being
Barbados), and generally to restrict the number of people actually executed. Let me take
two examples where there has yet to be a moratorium. The new Belarus Criminal Code
of 1999 provides for death penalty for 15 fewer offences (in 14 rather than 29 articles)
than the Code of 1960, and it can now only be imposed ‘when it is dictated by special
aggravating circumstances as well as an exceptional danger posed by the offender’.
59
Vietnam reduced the number of offences for which the death penalty can be imposed from
44 to 29 in 1999 and plans are in place to revise the Penal Code to reduce the number to
12, excluding economic crimes.
60
China has yet to take this legislative leap.
About a third (32 of the 94) of the countries that have not yet abolished capital
punishment in law still retain it for certain dangerous drugs offences, about 28 for some
sexual offences, and about 22 for various non-violent serious property or economic
57
Hungary: Constitutional Court Decision No. 23/1990 (X.31) AB. On the constitutionality of capital
punishment, see Tibor Horvath, ‘L’Abolition de la peine de mort en Hongrie’ (1992) Revue Internationale
de Criminologie de la Police Technique 2, 167–179. South Africa: State v Makwanyane [1995] (3) SA 391.
58
M Ancel, The Death Penalty in European Countries (Council of Europe, Strasbourg 1962) 3.
59
Grigory A Vasilevich and Elissa A Sarkisova, ‘Prospects for Abolition of the Death Penalty in the Republic
of Belarus’ in The Death Penalty in the OSCE Area (Background Paper) (Ofce for Democratic Institutions
and Human Rights, Warsaw 2006) 9–17.
60
Hood and Hoyle, 2008 (n 1) 97; UK Foreign and Commonwealth Ofce, Annual Report on Human Rights
2008 (Report) (March 2009) 173 <www.fco.gov.uk/humanrights> accessed 19 August 2009.
15 Abolition of the Death Penalty: China in World Perspective2009 ]
offences (including armed robbery not leading to death).
61
But, as far as I have been able to
ascertain, there were reports of only 15 countries having carried out at least one execution for
one or other of these types of offences in the ve years from 2002 to 2006, including China.
This suggests that executions for crimes other than murder (except for drug related offences in
about seven countries), are now very rare events. Indeed, it appears that the norm in retentionist
countries is to maintain capital punishment, pending abolition, as an exceptional discretionary
sentence and for intentional murder only — a limitation laid down by the United Nations
Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions.
62
Also, the number of countries that carry out executions regularly is now very small.
In 2008, only 25 countries were known to Amnesty International to have carried out a
judicial execution, compared with 40 twelve years earlier in 1997.
63
In the US, 42 of
the 51 US state jurisdictions had no executions in 2008. While in 1999, 98 persons were
executed in the US, only 37 were in 2008, half (18) of them in Texas. With the exception
of Iran, Iraq, Saudi Arabia and Pakistan, the number of executions annually recorded
appears to be falling almost everywhere. Furthermore, only three nations are known by
Amnesty International to have executed at least 100 people in 2008: China (by far the
largest number), Iran and Saudi Arabia — and only eight countries had executed more
than 15 people.
64
It is also highly signicant that the death penalty was excluded as a punishment by
the UN Security Council when it established the International Criminal Tribunals to deal
with atrocities in the former Yugoslavia in 1993 and Rwanda in 1994, and later in Sierra
Leone, Lebanon and Cambodia. Nor is it available as a sanction for genocide, other grave
crimes against humanity and war crimes in the Statute of the International Criminal Court
established in 1998.
65
This has raised the inevitable question: if capital punishment is not
available for these atrocious crimes, why should it be the punishment for lesser crimes?
Several attempts had been made by abolitionist states since 1994 to bring a resolution
before the UN calling for an international moratorium on death sentences and executions
so that the effects could be studied. One indicator of the way in which the debate is
moving is the quite dramatic decrease in recent years in the number of countries which
continue to oppose such resolutions. As recently as 2005 at the UN Commission on Human
Rights, 66 countries dissociated themselves from a resolution calling for a world-wide
moratorium on executions largely on the grounds that it was ‘divisive’ and an attempt
to impose the will of the majority on the minority, even a form of cultural imperialism
61
Hood and Hoyle, 2008 (n 1) 134–144.
62
Professor Philip Alston, UN Doc A/HRC/4/20 [65] (29 January 2007).
63
Amnesty International, ‘Death Sentences and Executions in 2008’ (Report) (March 2009) AI-Index ACT
50/003/2009, 8.
64
China, Iran, Saudi Arabia, USA, Pakistan, Iraq, Viet Nam and Afghanistan. Ibid.
65
‘Rome Statute of the International Criminal Court’ (UN Doc A/CONF 183/9 Part 7 Penalties) <http://
untreaty.un.org/cod/icc/statute/english/rome_statute(e).pdf> accessed 17 July 2009.
City University of Hong Kong Law Review16 [ Vol 1:1
and an attack on sovereignty.
66
Some of these countries denied that the death penalty is a
question of ‘human rights’ and insisted that it was one of criminal justice practice, to be
decided by citizens of nations and by their political leaders on the basis of local opinion,
circumstances and culture. Yet, two years later, in December 2007 at the UN General
Assembly only 54 countries voted against a similar resolution, with 104 in favour. A year
after that the number of objectors had shrunk to only 46 — eight fewer countries than the
year before and 20 fewer countries than a mere three years earlier — and the number that
abstained had risen from 29 to 34.
67
Taken together, the facts reviewed above suggest that many, probably the majority,
of retentionist countries are not wedded to, or reliant upon, executions to enforce
criminal law. Thus, the remaining retentionist states should not be regarded as a ‘rump’
of states committed to continuing executions: many of them appear to be moving
towards a minimal and marginal use of capital punishment where it continues merely
to serve a symbolic purpose rather than being regarded as a necessary element of
penal practice. This portends a further increase in the number of abolitionist countries
as they come in the not too distant future to accept the ideology of the new human
rights dynamic.
VI. Prospects in China
As mentioned in the Introduction, the last few years have witnessed a distinct change in
the discourse, evidenced by the willingness of the Chinese authorities to discuss the death
penalty in human rights seminars and dialogues with European countries, the gradual
opening up of the subject to research, and the attempt to guard against wrongful conviction
and control the incidence of executions through review of all death penalty verdicts by the
Supreme People’s Court.
But how important has been the impact on China of the ‘new dynamic’ based on an
acceptance that the death penalty is a violation of human rights — the right to life and
the right to be free of tortuous, cruel and inhuman punishments and treatments? It is
true that in the debate at the UN General Assembly in December 2007 on the resolution
66
Hood and Hoyle, 2008 (n 1) 32–35.
67
Ethiopia and Somalia having moved from against to being in favour and the other six now abstaining —
Bahrain, Jordan, Mauritania, Oman, Papua New Guinea and Suriname. Among the 48 countries that were
actively retentionist (having executed at least one person in the past 10 years) and the 10 countries that have
not executed anyone during that period, but are not regarded by Amnesty International as truly ‘abolitionist
in practice’ (a total of 58 nations), 39 opposed the resolution. The largest group (17) were countries with a
majority Muslim population, followed by countries of the British Commonwealth (11 of the 15 being island
states in the Caribbean, plus Botswana, India, Singapore and Uganda). Five were in non-Muslim or non-
Commonwealth Asia (China, Japan, North Korea, Mongolia and Thailand), and one in Africa (Zimbabwe).
In Europe and the Americas only the US opposed the resolution. See UN Doc GA/10678 <http://www.un.org/
News/Press/docs/2007/ga10678.doc.htm> and UN Doc GA/10801 <http://www.un.org/News/docs/2008/
ga1081.doc.htm> accessed 17 July 2009.
17 Abolition of the Death Penalty: China in World Perspective2009 ]
for a world-wide moratorium on death sentences and executions, China voted against
the motion. The reason given by the Chinese spokesperson was reported as follows:
… in today’s world, the issue was a matter of judicial process to decide on
the use of or a moratorium on the death penalty, and not a matter of human
rights. It was each country’s right, on the basis of cultural background and
other factors, when to use that punishment. Each state should be able to
exercise that right without interference. The issue should be solved through
dialogue.
68
However, as Nicola Macbean, an expert on China, has stressed: ‘In staking its claim to
legitimacy, to both an international and domestic audience, the Chinese government can
no longer ignore the dominant discourse of human rights.’
69
At a workshop held in Guangdong and Beijing in June 2009 under the auspices of the
Great Britain-China Centre, the Death Penalty Project, and the CCLS of Beijing Normal
University, as part of the EU funded ‘Moving the Debate Forward’ project, it appeared
to be widely accepted that the human rights movement to abolish the death penalty in all
countries was an ‘irreversible trend’. As Professor Zhao Bingzhi put it:
The fast headway of abolition in the globe is amazing and exciting. These latest
changes present a clear signal to us: abolition is an inevitable international
tide and trend as well as a signal showing the broad-mindedness of civilised
countries … abolition has become an international obligation … Although
such inuence will not lead to an instant effect, it facilitates … restricting
the scope of crimes to which death penalty is applicable as much as possible
and the execution of a minimum number.
70
Furthermore, he called for the regular publication of statistics showing the actual
number of people sentenced to death and executed alongside vigorous attempts to promote
positive attitudes towards abolition among the public. Professor Zhao put forward two more
proposals. First, the reduction by the legislature (not simply through the review procedure of
the Supreme People’s Court) in the crimes subject to capital punishment so as to restrict it to
crimes of violence resulting in death, ‘highly serious crimes endangering national security’
and military crimes committed during a war. Second, the introduction of a system to provide
clemency and pardons, as required by the ICCPR and the ECOSOC Safeguards.
68
‘General Assembly Adopts Landmark Text Calling for Moratorium on the Death Penalty’ (18 December
2007) (News Release, United Nations, New York) UN Doc GA/10678, <www.un.org/News/Press/docs/2007/
ga10678.doc.htm> accessed 17 July 2009. For a similar statement of the following year, see UN Doc
GA/10801 (18 December 2008), <http://www.un.org/News/docs/2008/ga1081.doc.htm> accessed 17 July
2009.
69
Macbean (n 3) 222.
70
Zhao Bingzhi and Wang Shuiming, ‘Development Trend of Death Penalty in Contemporary Era and its
Inspiration for China’, paper presented in Workshop on Trend of Death Penalty Reform and Applicable
Standard: Experience of International Society and Chinese Practices (Held in College of Criminal Law
Science of Beijing Normal University and Great Britain-China Centre, Beijing on 17–18 June 2009).
City University of Hong Kong Law Review18 [ Vol 1:1
It was particularly notable that one of the major factors identied as likely to determine
the pace towards abolition was public opinion: it being assumed that there was strong
support for the death penalty because the retributive concept of a ‘life for a life’ was
deeply embedded in Asian and Chinese cultures. For example, Professor Mo Hongxian of
Wuhan University Law School, who also called for the authorities to provide the public
with information on the application of the death penalty and insisted that ‘public opinions
do not necessarily represent justice’, drew a distinction between what she called an ought-
to-be point of view in which public opinion ‘should not inuence the application of the
death penalty’ and a what-it-is point of view, ‘that it is almost impossible, politically, to
separate the question of the death penalty from the inuence of public opinions’. She
hoped that the policy of strictly restricting the application of the death penalty ‘would
reduce the public’s inclination towards revenging justice against crimes’ and thus ‘when
the time is ripe we may temporarily suspend the sentencing of the death penalty’. Then,
‘if the public gradually accepts it and shows no repulsion, we may then abolish the death
penalty in the Criminal Law.’
71
How long this process might take became a matter of
speculation, with some suggesting that it would be a long process, while others hoped for
a more speedy resolution.
The EU-China project on Moving the Debate Forward has shed light on this issue
by funding a large scale public opinion survey of nearly 4,500 citizens (a 70 per cent
response rate) in three different provinces, devised by the Max Planck Institute for
International Criminal Law in Freiburg, Germany, and conducted by the Research Center
for Contemporary China at Peking University. The ndings from this survey will be
published in China and Freiburg alongside a survey of the opinions of criminal justice
personnel conducted by Wuhan University Law School.
72
An outstanding nding from the
public opinion survey was the low level of interest and knowledge and the relatively high
proportion of respondents who had no rm opinion on the subject of the death penalty. Less
than three per cent said they were ‘very interested’ and only 26 per cent were interested at
all. Thus, almost three quarters were either ‘not very interested’ or ‘not interested at all’ in
the subject. When asked how much knowledge they had about the death penalty in China,
only 1.3 per cent said they had a lot of knowledge and less than a third ‘some knowledge’.
Therefore, almost seven out of ten citizens had little or no knowledge about the use of the
death penalty in their own country and so it was not surprising that no more than 11 per
cent had even heard of the ICCPR.
As regards being in favour or opposing the death penalty, 58 per cent were denitely
in favour — by no means a very high proportion when compared with the experience
of European countries when they abolished capital punishment. For example, as already
71
Mo Hongxian, ‘Analysis of the Interaction between Public Opinions and Judicature on Death Penalty: Paths
of Judicial Control over Death Penalty’ in Workshop Proceedings (n 70).
72
At the time of writing, the two surveys are being prepared for joint publication, in Chinese by Wuhan
University, under the direction of Professor Mo Hongxian and in English by the Max-Plank Institute in
Freiburg under the direction of Professor Hans-Jörg Albrecht. The authors of the general population survey
are Dietrich Oberwittler and Shenghui Qi.
19 Abolition of the Death Penalty: China in World Perspective2009 ]
mentioned, in France, 63 per cent of the general public was opposed to abolition at the
time when it was abolished and yet the government was re-elected.
73
In China, moreover,
while only 14 per cent said they opposed capital punishment, as many as 28 per cent were
recorded as being ‘unsure’. When asked whether China should speed up the process to
abolish the death penalty, only 53 per cent were opposed and a further 33 per cent were
‘unsure’. This can hardly be said to indicate a fervent desire for capital punishment of a
kind that would make abolition politically impossible to achieve.
More evidence to suggest that attitudes were not hardened and inexible on this subject
came forth when respondents were asked whether they supported the death penalty for
specic crimes. For only two crimes, well over half the respondents supported the use of
capital punishment: for murder (77 per cent) and intentional injury causing death (60 per
cent); and just over a half supported it for drug dealing (54 per cent) and sexual abuse of a
girl under the age of 14 (52 per cent). For no other category of offence for which the death
penalty can presently be imposed was there a majority in favour of capital punishment,
suggesting that the government would not have great opposition to expunging most of the
68 capital offences from the criminal code so as to comply, pending complete abolition,
with the meaning and spirit of Article 6(2) of the ICCPR and Safeguard 1 of the ECOSOC
Safeguards.
Furthermore, there was evidence that the members of public surveyed, despite their
general endorsement of the death penalty, would wish to see it imposed only in the most
extreme cases of murder. This was evident when they were provided with ‘scenarios’ of
a crime with various aggravating and mitigating features. For instance, the death penalty
was supported by less than 50 per cent of respondents even for a man who had served two
previous prison sentences for robbery and who now had robbed a convenience store of
2,000 Yuan and killed the store-owner by shooting him in the head.
Further questions revealed that respondents made greatly varying estimates of the
number of persons executed annually in China and two-thirds simply said that they did not
know the number. As many as 64 per cent said that the Chinese government should publish
the gures and only 16 per cent said they denitely should not. Although Article 212 of
China’s Criminal Procedure Law of 1996 provides for the publication of every execution
of a death sentence and all courts have to prepare written records of the execution, the
government has yet to collate and publish this data. No one knows how representative the
reports of executions in newspapers are of all executions carried out in the country annually.
Such secrecy and lack of transparency and accountability makes it impossible for either the
supporters or opponents of capital punishment to debate the issue on the basis of the realities
of how often it is administered, for what types of offences and offenders, and under what
circumstances. If China were to ratify the ICCPR, it would be more likely to take account
of Resolution 1989/64 of the UN Economic and Social Council calling for the publication
of such information. The United Nations Special Rapporteur, Professor Philip Alston, has
73
See page 7 (last para) of this article above.
City University of Hong Kong Law Review20 [ Vol 1:1
stigmatised the failure of states to do so as a violation of human rights standards.
74
Increased knowledge could well prove effective in changing attitudes and opinions: the
survey showed that a high proportion of the population were concerned about wrongful
convictions and only 25 per cent of respondents said that they would support the death
penalty if it were proven that innocent people had been executed. Furthermore, almost 70
per cent of the general public thought that the death penalty was not equitably administered,
being more likely to be imposed on poor and ‘grassroots’ people than a rich person or
an ofcial or a relative of an ofcial. When, as in surveys in the US, respondents were
asked whether they would support the death penalty if various alternatives were available,
a substantially lower proportion denitely opposed abolition. If the death penalty were
replaced by life imprisonment with the possibility of parole, those who said they would
still favour the death penalty accounted for only 38 per cent of the Chinese general
population and those in favour of abolition increased from 14 to 31 per cent with 30 per
cent remaining undecided. On the other hand, if the alternative maximum sentence was to
be the very harsh penalty of life with no possibility of parole and an obligation to make
restitution, under a quarter would oppose abolition and half denitely favour it. It seems,
therefore, that although 78 per cent of those surveyed said they agreed with the statement
‘people who take a life deserve to be punished by having their own life taken’, this was
more an expression of the idea of proportional punishment than a demand for retributive
justice of exactly the same type.
As far as the survey of 455 criminal justice practitioners
75
was concerned, less than
half (48 per cent) agreed with the ‘life for a life’ principle but they strongly supported
the death penalty on grounds of its purported general deterrent effects. As many as 91
per cent supported the death penalty in general and a much lower proportion than in the
general population believed that innocent persons had been executed or that the system
discriminated against poor or grassroots citizens. However, like the general public, the
majority did not support the use of the death penalty for economic offences and would
be much more likely to support abolition if the alternative punishment was a more severe
form of imprisonment. But in their case, the proportion who would continue to support
the death penalty fell below half (to 33 per cent) only if the substituted sentence would
be life imprisonment both without parole and an obligation to make restitution. Such a
penalty of ‘life without hope’ would also be challenged on human rights grounds, but the
response indicates that these professionals are not wedded to extracting literally a ‘life for
a life’; they were much more wedded to utilitarian considerations of general deterrence
and incapacitation. As might be expected, the ndings really indicate that those who are
responsible for administering the death penalty have a stronger belief in the legitimacy of
what they do. While the majority favoured improvements in the due process provisions
of the criminal law in line with the principle of legality, it appears that relatively few of
74
UN Doc E/CN 4/2005/7 2004 (17 March 2005).
75
95 judges, 95 prosecutors, 95 policemen, 95 staff of the legislature and judicial administration, and 75
defence counsel.
21 Abolition of the Death Penalty: China in World Perspective2009 ]
them have as yet embraced the view of the death penalty as an international human rights
issue.
Taken together, the two surveys suggest rstly that public opinion is not likely to be
so hostile to further restriction and abolition of the death penalty as has been supposed
and that it is the practitioners of criminal justice that need most to be educated further
about the realities of capital punishment and the human rights issues that are inevitably
involved in administrating this cruel, inhuman and degrading punishment. Those who use
the ‘Asian values’ or ‘Chinese culture’ argument for retaining the death penalty should
recognise that there is strong evidence close to hand that Chinese people have been able
to live contentedly under penal regimes where there is no capital punishment. The Special
Administrative Regions of Hong Kong and Macau prove that amply. Indeed, although the
majority of the Hong Kong population favoured capital punishment prior to the abolition
of the death penalty by the colonial British regime, there has, as Johnson and Zimring
have emphatically shown, been no serious calls or pressure there for its reintroduction and
furthermore a continuing decline in the homicide rate.
76
VII. Conclusion
Many Chinese scholars had hoped and some expected that the Chinese government would
ratify the ICCPR before the Olympic Games of 2008 as a signal of China’s commitment
to human rights. Despite this disappointment, pressure continues to grow within China
to make further reforms in domestic law so as to ensure that it comes into line with
international human rights standards, especially as regards fair trial standards and the
limitation of the scope of capital punishment in law and practice so that it complies with
the modern interpretation of Article 6(2) of the ICCPR limiting the use of the death penalty
solely to wilful murder, pending complete abolition.
Further progress will depend on the extent to which the academic and judicial elite
can inuence policy makers to accept that the question of whether a modern state should
employ the death penalty has advanced to the point when it ought no longer to be conceived
narrowly as an acceptable form of crime control governed entirely by national sovereignty.
The new human rights dynamic embraces a wider and more and more often internationally
accepted conception of the limits of state power over the right of all citizens, including
those who have committed the most serious crimes, to respect for their life and freedom
from cruel, inhuman and degrading punishment. The experience of other countries shows
that once capital punishment is dened as a violation of a human right, it can no longer be
justied on other political or utilitarian grounds. Further advancement towards abolition
of the death penalty in China will require political leaders to come to understand and
accept, as many of its leading scholars are coming to accept, this point of view.
76
Johnson and Zimring (n 3), ‘Hong Kong and Macau’, Appendix B, 365–379.
