The USA’s Vote

The appointment of the first Independent Expert on Sexual Orientation and Gender Identity in the 32nd session of the Human Rights Council marked an important milestone in the LGBTI struggle. However, the distance yet to be travelled was brought home in a stark fashion in the 36th session of the Human Rights Council in the debate around the death penalty.

Introduction

Understanding Resolution 36/17 of 2017 on ‘The question of the death penalty’

The Amendment Strategy

Analysing the vote on Resolution 36/17

Understanding the ‘Yes vote’

Understanding the ‘No vote’

The USA’s Vote

While Resolution 36/17 was a resolution which impacted a range of groups and minorities, the only part of the resolution which caught the attention of the global media was the fact that this resolution prohibited the death penalty for ‘consensual same-sex relations’. This aspect of the resolution which was not a topic of controversy during the voting in the Human Rights Council, ignited a controversy particularly within the USA with the US government being asked as to how the USA could have voted against a resolution which sought to prohibit the death penalty for ‘consensual same sex relations’.

The explanation for the vote by the USA in the Human Rights Council did not seem to have anticipated this controversy.

The United States is disappointed that it must vote against this resolution. As in previous years, we had hoped for a balanced and inclusive resolution that would better reflect the position of states that continue to apply the death penalty lawfully. We reaffirm our longstanding position on the legality of the death penalty, when imposed and carried out in a manner consistent with a state’s international obligations.

We are deeply troubled whenever an individual subject to the death penalty is denied the procedural and substantive protections to which he or she is entitled. We, likewise condemn any instance in which a method of execution or treatment during confinement is applied in such a manner as to amount to torture or cruel, inhuman or degrading treatment in violation of a state’s international obligations. We cannot accept the implication, however, that all methods of execution have such a result.

The United States is committed to complying with its constitution, laws, and international obligations, and we encourage other countries that employ the death penalty to do so as well. [27]

Susan Rice, the former US Ambassador to United Nations under President Obama, in some ways initiated the controversy by tweeting:

Shame on US! I was proud to lead U.S. efforts at UN to protect LGBTQ people, back in the day when America stood for human rights for all. [28]

In response to the backlash in the US media, in a press briefing, State Department spokesperson Heather Neuter said:

We voted against that resolution because of broader concerns with the resolution’s approach in condemning the death penalty in all circumstances…. The United States unequivocally condemns the application of the death penalty for conduct such as homosexuality, blasphemy, adultery, and apostasy. We do not consider such conduct appropriate for criminalization. [29]

Nikki Haley, the U.S. ambassador to the U.N., also responded to the backlash following the death penalty vote. In two tweets, Haley said:

Fact: There was NO vote by USUN that supported the death penalty for gay people. We have always fought for justice for the LGBT community.

Fact: The vote that took place in Geneva is the same US vote that took place under the Obama admin. It was not a vote against LGBT.[30]

Was the US voting an example of the Trump administration’s turning away from a global championing of human rights? To understand whether Susan Rice is right in making the case that this was a new shift in foreign policy or Nikki Haley was justified in making the case that this was no change but merely a continuation of existing US policy, the US votes on previous resolutions on the death penalty will have to be examined.

In all previous General Assembly resolutions on a moratorium on the death penalty, beginning from 2008, the USA has voted against. As recently as 2016, in GA Resolution 71/187 of 2016 the USA was one of the 40 countries voting against the resolution which was passed by 117 countries.

In the resolutions at the Commission on Human Rights, on the ‘question of the death penalty’ the USA has voted against. In the three resolutions at the Human Rights Council, the USA has voted against two of them and abstained on one. In Resolution 30/5 of 2015 on the question of the death penalty the USA voted against and in Resolution 26/2 of 2014 the USA abstained. The US abstention in Resolution 26/2 of 2014, seemed to indicate a softening of opposition, especially as articulated by Ambassador Harper in the Explanation of Vote:

The United States is disappointed that it was not able to join consensus on this resolution. We had hoped for a balanced and inclusive resolution that would better reflect the position of states that continue to apply the death penalty lawfully. In particular, we cannot agree with the slant of this resolution in favour of a moratorium or abolition, nor with the generality expressed that use of the death penalty inevitably leads to violations of human rights. We are deeply troubled whenever an individual subject to the death penalty is denied the procedural and substantive protections to which he or she is entitled, but we cannot accept the implication that such a denial of legal protections follows from use of the death penalty. For this reason, we supported the amendment that would have removed this problematic language. International law does not prohibit capital punishment when imposed and carried out in a manner that is consistent with a state’s international obligations. We therefore urge all governments that employ the death penalty to do so in conformity with their international human rights obligations. With respect to the imposition of the death penalty for offenses committed by persons below eighteen years of age, the United States Supreme Court has barred as unconstitutional the use of the death penalty in such circumstances. We would likewise encourage all States to do the same, but interpret the references in the resolution to related provisions of the ICCPR and the Convention on the Rights of the Child as addressed to those States Parties who have accepted such obligation under those conventions. As to the question of abolition of the death penalty or moratoriums on its use, the United States’ position is equally well known. The ICCPR, its Second Optional Protocol and other relevant conventions leave this question to be decided through the domestic democratic processes of each individual Member State. We believe that these domestic processes may be enhanced by open debate on all sides of the issue and that this resolution can contribute to such debate. For that reason, we have chosen to abstain rather than oppose this resolution, despite its flaws.

While we could have read the vote on 26/2 as well as the explanation provided by Ambassador Harper as a general softening of position of the USA on the death penalty, on the vote which followed in Resolution 30/5 of 2015 the USA reverted to an oppositional stance. [31] Thus the only way to read the Obama administration’s record is that in 2014 there seemed to be a softening of position but for whatever reason, the small window was rapidly shut by the vote in 2015.  The vote in 2017 by the Trump administration exhibits a continuity of US policy with the 2014 vote being more of an exception in an otherwise unswerving commitment to preserving the death penalty.

Japan’s vote  

India’s vote  

Conclusion: Towards an intersectional approach?  

Download full report here.

[27] https://geneva.usmission.gov/2017/10/03/u-s-explanation-of-vote-resolution-on-the-question-of-the-death-penalty/
[28] https://twitter.com/ambassadorrice/status/915265109768982528?lang=en
[29] https://www.advocate.com/world/2017/10/03/state-dept-elaborates-position-homosexuality-and-death-penalty
[30] https://www.advocate.com/world/2017/10/04/nikki-haley-misleads-un-vote-death-penalty-gays
[31]  The USA in an explanation of the vote said that it was disappointed that it could not abstain on this resolution.  It was concerned at the language of the calls for a moratorium, and could not accept that all manners of executions amounted to torture or inhumane treatment.  The United States would have preferred a more balanced approach.  https://www.unog.ch/unog/website/news_media.nsf/(httpNewsByYear_en)/2E09FC4729710CCEC1257ED1005C9C1C?OpenDocument