Dinan, Brittany

Collision Course

In part, worldwide anti-death-penalty sentiment has ratcheted upward over the last year for precisely the same reasons that US support for capital punishment has softened: nearly 100 high-profile exonerations, the example of Illinois's moratorium [see Shapiro, "A Talk With Governor George Ryan," January 8/15] and George W. Bush's track record as what France's Badinter calls "the world champion executioner."

But on another level the United States long ago set itself on a collision course with its closest democratic allies. The historical arc leads back to a single month a quarter-century ago. In June 1977, a full year after the Supreme Court reinstated capital punishment, Utah stood Gary Gilmore in front of a firing squad. In that same month, Patrick Henry, accused of kidnapping and garroting a small child in France, faced the death penalty in a media-saturated trial. Badinter, then a rising legal star, persuaded the jury to spare Henry's head by putting the death penalty itself on trial as an atavistic relic. Badinter's argument effectively shut down the guillotine, and in 1981 he spearheaded its formal abolition.

Just thirty-one nations had banished capital punishment at that time, and it was still on the books not only in France but also in Belgium and Britain. The United States carried out a single execution in that year. But subsequently, abolition worldwide has gained momentum in inverse proportion to the proliferation of American executions. Since the US death penalty was reinstituted, 725 people have been put to death. Meanwhile, more than seventy nations have abolished capital punishment--twenty-four in the past four years alone, ranging from South Africa to Azerbaijan.

The shift away from capital punishment was particularly notable in Europe. In 1985 the Council of Europe adopted an amendment to the European Convention on Human Rights, known in international law circles as Protocol 6, abolishing the death penalty in peacetime. It was what Hans Krüger, the council's deputy secretary general, calls "the first binding legal instrument" to outlaw executions under routine conditions. In 1994 the council made ratification of Protocol 6 a condition for membership. Any nation wishing to sit in the council or join the EU was required to either abolish the death penalty or impose a moratorium and a schedule for abolition.

Coming amid the post-cold war reconfiguration of Europe, the impact of Protocol 6 was seismic, says Harold Koh. "Every country that wants to join the EU has had to do the kind of cost-benefit analysis over capital punishment that we in the United States have always avoided," Koh says. "It has really raised the bar." Even the Russian Federation, long one of the United States' chief competitors in the execution game, has signed Protocol 6, though the Duma has yet to ratify it. Between 1995 and 1998, Ukraine executed more than 200 people. But last year--with Ukraine's membership in the EU more valuable than its historic embrace of the death penalty--the country ratified Protocol 6. In all of Europe, only Turkey keeps capital punishment on the books, and that is being challenged now, with the capital conviction of Kurdish resistance leader Abdullah Ocalan in 1999.

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