One of the most potent arguments against capital punishment in recent years has been the execution of the innocent. Even strong advocates of the death penalty recoil at the idea that this may involve killing the wrong person. Many have joined the abolitionist camp not out of ‘principled’ opposition to capital punishment but because of their concern that the justice system, as it now functions, is not reliable enough. We know, for example, that in the United States (and presumably elsewhere), those who are sentenced to death and executed are generally those who had an inadequate defense.
But to date, the best we have been able to come up with are cases of people who were determined to be innocent during appeals or post-conviction review proceedings. When their circumstances became clear, the death penalty advocates answered: ‘You see, the system works. We identify the innocent before we carry out the executions.’
Now, it seems, there is a clear case that Texas executed an innocent man. It is discussed in a fascinating article in the latest issue of the New Yorker.
http://www.newyorker.com/reporting/2009/09/07/090907fa_fact_grann
Meanwhile, last month the United States Supreme Court issued a decision ordering an evidentiary hearing into claims of innocence by Troy Davis, who is sentenced to death in Georgia. Many witnesses in the Troy David case have recanted, and there is at the very least an arguable case for his innocence. According to the majority ruling, authored by Justice Stevens: ‘The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing.’ See: http://www.supremecourtus.gov/opinions/08pdf/08-1443Stevens.pdf. Justice Scalia dissented and would have denied Troy Davis the opportunity to prove he is innocent: ‘This court has never held that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent.’ See: http://www.supremecourtus.gov/opinions/08pdf/08-1443Scalia.pdf.
Thanks to Jean-Marie Henckaerts, Nadia Bernaz and Megan Fairlie.
Dear Prof. William Schabas, Ph.D,
ReplyDeleteIn reference to your recent comments about ICTY Judge Christoph Flugge, I am pleased to let you know that he has been removed from the Karadzic trial due to his questioning of the Srebrenica genocide in Der Spiegel.
Here is a press release from the Congress of North American Bosniaks:
The Congress of North American Bosniaks, an umbrella organization representing the interests of 350,000 American and Canadian Bosniaks, applauds the decision of the International Criminal Tribunal for the Former Yugoslavia (ICTY) to remove Judge Christopher Flügge from the Karadžić’s case.
Judge Flügge made headlines when he questioned the Srebrenica genocide in an interview given to the German weekly magazine “Der Spiegel”. According to the article, Judge Flügge stated that “the term genocide to define these crimes is unnecessary” instead preferring to refer to it as “mass murder”. He claims that there is no reason to differentiate between “a group that is murdered for their nationality, religion, ethnicity, or race, as is regulated by the Hague Statute” and a group that “happens to be gathered at a specific location”.
Judge Flügge was unable to show impartiality to the case and was in a clear violation of The Hague’s Rule 15(A). His statement also directly violated previous ICTY rulings which confirmed that the atrocities committed against Bosniaks in Srebrenica constitute genocide, in accordance with the definition from the Geneva Convention of 1949.
For these reasons, CNAB had requested that the Court remove Judge Flügge from his role in the proceedings against Radovan Karadžić, or in any case dealing specifically with charges of genocide. CNAB is pleased with ICTY’s decision to comply with our request, but we still demand an official apology be issued to the victims who have been hurt by Judge Flügge’s statement.
Let us conclude with the words of honorable Theodor Meron, former presiding judge of the ICTY from his speech deliver in Potočari on 11 July 2005 at the commemoration of the 10th anniversary of the Srebrenica genocide:
“By seeking to eliminate a part of the Bosnian Muslims [Bosniaks], the Bosnian Serb forces committed genocide. They targeted for extinction the 40,000 Bosnian Muslims living in Srebrenica, a group which was emblematic of the Bosnian Muslims in general.
They stripped all the male Muslim prisoners, military and civilian, elderly and young, of their personal belongings and identification, and deliberately and methodically killed them solely on the basis of their identity. The Bosnian Serb forces were aware, when they embarked on this genocidal venture, that the harm they caused would continue to plague the Bosnian Muslims.
The Appeals Chamber states unequivocally that the law condemns, in appropriate terms, the deep and lasting injury inflicted, and calls the massacre at Srebrenica by its proper name: genocide. Those responsible will bear this stigma, and it will serve as a warning to those who may in future contemplate the commission of such a heinous act.”
http://www.bosniak.org/cnab-applauds-removal-of-judge-flugge-from-the-karadzic-case/