Mar 7, 2015 2:52 AM

Indonesia executions show hurdles of death penalty diplomacy

The Associated Press

SYDNEY (AP) Inside a remote island prison in Indonesia, two Australians facing death by firing squad await word of their fate. To some, they are ruthless drug smugglers who deserve to die. To others, rehabilitated do-gooders who deserve to live. The question of which characterization is correct has threatened ties between two once-close countries, both convinced they are right.

Australia's fight to save Andrew Chan and Myuran Sukumaran from imminent execution, and Indonesia's fight to maintain control of its own legal system, has devolved into a diplomatic battle rife with accusations of hypocrisy, power plays and moral superiority. And it serves as a stark reminder of why the death penalty is often considered the ultimate diplomatic challenge: How do you negotiate the non-negotiable?

"For a diplomat, the death penalty cases are always the hardest ones because they involve a supreme act of sovereignty the foreign state believing it has the right to take the life of someone that's committed a crime but also a supreme loss of sovereignty that a country isn't able to protect its citizens overseas," said Andrew Carr, an international relations expert at The Australian National University. "You get the greatest clash of moral values in that some states believe this is right and proper to be applied and other states believe it's quite abhorrent."

There's inevitably tension whenever one country tries to tell another how to conduct its business. That becomes even more acute in death penalty cases, which involve the most extreme human emotions and become, unwittingly or not, symbols of a nation's strength or lack thereof.

The Australian drug smugglers' case is a prime example of that. Chan and Sukumaran were arrested in 2005 and sentenced to death for planning to smuggle 8.3 kilograms (18 pounds) of heroin to Australia from Bali. Australia, which long ago abolished the death penalty, pleaded for clemency, arguing the men have been rehabilitated. Indonesia maintains the ultimate punishment is necessary to protect its citizens from a national drug crisis.

Indonesian leaders, meanwhile, bristled at Australia's attempts to intervene in what they consider a domestic justice issue. "We stress normally that people in foreign countries are subject to that country's jurisdiction and that its laws may be different from ours. But in this case, we're saying we find the death penalty so repugnant that we want you to change the application of your law and that's not entirely consistent," said Geoffrey Miller, an Australian who spent 40 years working as a diplomat in Japan, Korea and New Zealand. "The whole issue is so emotive and it's so final ... it's understandable that our government is making a major effort. But I think there's a certain awkwardness in it."

That awkwardness can lead to verbal stumbles that threaten negotiations. Australian Prime Minister Tony Abbott vowed not to let Chan and Sukumaran's case jeopardize the countries' close ties. And yet that's exactly what happened when Abbott suggested the men deserved leniency because Australia gave Indonesia $1 billion in aid after the 2004 Indian Ocean tsunami.

The response from Indonesia's foreign ministry spokesman, Arrmanatha Nasir, was sharp. "Threats are not part of diplomatic language," he said. "And from what I know, no one responds well to threats."

But if threats don't work, what does?

"One challenge is balancing the need to win concessions from local officials, appease foreign outrage, and build political capital to use in future diplomatic negotiations," Wesley Kendall, author of "The Death Penalty and U.S. Diplomacy," said by e-mail.

That's no small feat. Consider the 2011 execution of Mexican national Humberto Leal, which stoked tensions among Mexico, the U.S. government and the state of Texas. Under pressure from Mexico, President Barack Obama had pleaded with then-Texas Gov. Rick Perry to stop the execution of Leal, who raped and murdered a Texas teen. Officials never told Leal he could contact the Mexican consulate for help, which the International Court of Justice later ruled to be a violation of his rights. The Obama administration said Leal should be spared in light of that ruling, though Congress never ordered the states to comply with it.

In a letter supporting legislation that could have given Leal an avenue for appeal had it passed before he was executed, then-Secretary of State Hillary Clinton and Attorney General Eric Holder wrote: "The United States is best positioned to demand that foreign governments respect consular rights with respect to U.S. citizens abroad when we comply with these same obligations for foreign nationals in the United States."

The battle over Leal exemplifies just how tricky such negotiations can become, Kendall said.

"Clinton's statement captures her precarious diplomatic position," he said. "When an American is arrested overseas, and his rights have been violated in some way, the U.S. will have little diplomatic capital to negotiate with after executing a foreigner in blatant violation of international law."

The fallout of such cases can reverberate long after the execution is over. Relations between Australia and Malaysia were frosty for years after former Australian Prime Minister Bob Hawke blasted the 1986 executions of two Australian heroin traffickers hanged in Malaysia as "barbaric."

They cause headaches in the short-term, too. Brazil and the Netherlands recalled their ambassadors to Indonesia after a Brazilian and a Dutchman were executed in January on drug charges. The next month, Indonesia recalled its ambassador for Brazil to protest the postponement of the approval of his credentials by Brazil's president amid tensions over the looming execution of another Brazilian, Rodrigo Gularte, who is expected to be put to death alongside the Australian drug smugglers.

Then there is the thorny issue of hypocrisy, which commonly arises when nations that support capital punishment at home try to save their citizens from executions abroad. Australia has repeatedly pointed out such efforts by Indonesia, which last year paid around $2 million to stop the beheading of an Indonesian woman convicted of murder in Saudi Arabia.

The intense emotions involved make such cases tough for some diplomats to tackle both professionally and personally. In the 45 years Miles Kupa worked as an Australian diplomat, there's one case he cannot shake: Van Tuong Nguyen, an Australian sentenced to death after being caught with heroin in Singapore.

Kupa, who was Australia's High Commissioner to Singapore when Nguyen was facing execution in 2005, had the delicate job of conveying Australia's request for clemency to Singapore's then-president despite knowing the plea was unlikely to change the outcome.

"The law is very clear that in the case of heroin, if you're carrying more than 15 grams, the death penalty is mandatory," Kupa said. "So there was something very sadly automatic about the way the whole matter proceeded."

Still, Kupa and his colleagues toiled behind the scenes, informing the Australian capital of developments and how the matter was being viewed in Singapore, managing visits from Australia's leaders, regularly checking on Nguyen and helping Nguyen's family.

Ultimately, the efforts failed. Nguyen was hanged on Dec. 2, 2005.

"It was evident that there was no flexibility in their position," said Kupa. "But that said, I think it was incumbent on us to do everything we could. ... In the end, that proved to be of no avail."

"It is frustrating," he added. "But one persists and one has to be resilient and forceful without causing offense."

Yet avoiding offense is difficult in such highly charged cases. Former Canadian Foreign Minister John Baird once publicly accused Iranian officials of insulting his country's diplomats during negotiations to free Canadians from Iran's death row.

"When we've tried to call in Iranian diplomats and demarche in Tehran, I think it's been met with nothing but hostility," Baird was quoted as saying in 2012, during an audience Q&A session following a speech in Montreal. "The outrageous comments that we've received back from these encounters would stun you."

Meanwhile, the advent of social media and 24-hour news have put consulates under increasing pressure from a tuned-in public that expects much higher levels of assistance for citizens arrested abroad, said Carr, the international relations expert.

"So letting cases get to the point where the death penalty might be applied seems to be a de facto failure of the government to protect their citizens," Carr said.

Diplomats struggle, too, with the conflicting need to keep the public informed while dealing with the cases privately a necessity given that they sometimes involve deals that could invite public contempt, Carr said.

"If you're increasing your aid budget in order to save a life, that can seem quite tawdry to some people," Carr said.

Indonesia's ambassador to Australia, Nadjib Riphat Kesoema, acknowledged the public element in Chan and Sukumaran's case, noting a robust death penalty debate was underway in Indonesia among students, activists and officials.

"Give us space to internally discuss about this matter," he said Wednesday during a speech in Australia. "It is not an easy game to play."


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