Set universal standards for effective consular assistance
Set universal standards for effective consular assistance, UN expert urges States
NEW YORK (25 October 2019) – The United Nations Special Rapporteur on summary executions, Agnès Callamard, called for the adoption of a universal set of standards on consular support for imprisoned foreign nationals, especially those facing the death penalty.
“Access to consular assistance constitutes a fair trial guarantee, helping to balance out the difficulties confronted by foreign detainees, disproportionately affected by the death penalty. Consular assistance is a human right which imposes complementary obligations on both the prosecuting States and the home States,” said Callamard, presenting her latest report to the UN General Assembly.
“Prosecuting states must notify detained foreign nationals of their right to access their consulates in all circumstances. Home States must provide adequate and effective consular assistance. This too is a human right obligation and an emerging norm of customary international law.
“Whenever States fail to provide consular assistance to their nationals detained abroad and who are facing the death penalty, which they have a right to, they violate their responsibility to protect them against an arbitrary killing. If States have abolished the death penalty, their decision to withhold consular assistance is also in breach of their obligation to remain actively opposed to the use of the death penalty overseas,” she said.
The Special Rapporteur insisted that foreign nationals detained abroad who are accused of a most serious or heinous crime demand heightened diligence on the part of the home State, not less.
“A State’s decision to withhold consular assistance or to provide sub-standard consular assistance violates the fundamental principle of non-discrimination, deprives their nationals of equality before the law and acts in complicity with the violation of their nationals’ rights at the hands of prosecuting States.”
She highlighted the example of foreign nationals detained in Iraq who are charged with membership in a terrorist organisation, are at very high risk of being condemned to death but yet have remained largely without adequate consular assistance from their home States.
“Even States that are strongly abolitionist have adopted a tolerance for the imposition of capital punishment on their nationals abroad, in contravention of their legal obligations and moral positions. They appear to be imposing the death penalty by proxy, subcontracting its use for some of their nationals who are deemed to be unworthy of equal human rights protection. This is tantamount to importing the brutality of death penalty to the home society, and normalizing it,” Callamard said.
“Heinous crimes may be the litmus test of a State’s commitment to abolitionism; however to allow such acts to vanquish that commitment corrodes the very foundation of human rights guarantees and sends by example, a chilling message about the commitment to human rights internationally.”
Her report points to a number of good practices by States already providing adequate consular assistance to their nationals facing the death penalty overseas, such as Nigeria, Indonesia and the United Kingdom. She noted in paticular the Mexican Capital Legal Assistance Program, which facilitates the delivery of legal and social services to all Mexicans on death row in the US. Eighty-eight percent of Mexicans on U.S. death row saw their death sentence reduced to life between 2000 and 2018 thanks to this program.
“The report includes guidelines to States for adequate and effective consular assistance, covering all stages of the detention, trial and post-trial period, and including relationship with the detainees’ families,” Callamard said. “It calls on States to enshrine in their constitution or law the right of their nationals to consular assistance. It offers assistance to States so that they can fulfil their obligation to protect against the arbitrary killing of their nationals detained abroad, while establishing greater, legitimate means of accountability and strengthening the rule of law.”