On Tuesday 21 December 2021, Japan hanged three death row inmates, applying the death penalty for the first time since late 2019. This shocking revival of the barbaric practice has shed new light on an issue of absolute importance and urgency. Japan is one of the last countries in the Global North to retain capital punishment in its criminal justice system. Despite the growing barrage of criticism stemming from the international community, Japan appears firm in its conviction to maintain capital punishment.

The law, as articulated in articles 9 and 11 of the Japanese Penal Code, grounds the practice in its utility to fight the most violent and atrocious crimes. According to the statement of the Japanese Government, the three executed prisoners were a 65-year-old man convicted for the murder of seven people back in 2004 and two other men, aged 44 and 54, convicted of double killing in 2003. Justice Minister Yoshihisa Furukawa commented at the margins of the recent executions that, given the appalling nature of the acts perpetrated by the inmates, the punishment was appropriate. Further, the Jiang, Pilot and Saito 2005 study highlights majority support for the death penalty among the Japanese people; capital punishment is widely perceived across the country to effectively fulfil the deterrent purposes enshrined in the criminal response.

INADEQUATE NOTICE OF EXECUTIONS

Japan’s resumption of executions constitutes a dismaying indicator of tensions in the country’s human rights record while the methods used to deliver death penalties are of great concern. Human rights organisations, including Amnesty International, have long condemned Japan’s failure to provide adequate notice ahead of executions. Death row inmates generally receive only a few hours’ notice before their death sentences are executed, whereas some other prisoners are not given any notice at all. Moreover, families report being informed of their loved one’s execution only after the sentence is carried out. The inadequacy in Japan’s warning and notice of executions highlight an array of convicted peoples’ rights violations.

INTERNATIONAL INSTRUMENTS PROTECTING PRISONERS’ HUMAN RIGHTS

The UN General Assembly Resolution 45/111, adopted in 1990, establishes basic principles on the treatment of prisoners. While the resolution does not contain an explicit prohibition of capital punishment, article 1 confers that people deprived of liberty shall always be respected and guaranteed the protection of their dignity as human beings. Further, article 5 provides that all prisoners shall enjoy the human rights set out in the entire framework outlined by the UN Conventions. Amongst these, article 5 of the Universal Declaration of Human Rights  (UDHR) forbids torture or any other inhuman or degrading treatment and punishment. Under a general prohibition for people deprived of their personal liberty, article 10 of the International Covenant on Civil and Political Rights (ICCPR) proclaims that prisoners shall, in all circumstances, be treated according to the elementary principles of humanity.

Inadequate notice of one's prescribed death does not enable a death row inmate to appropriately contemplate and adequately prepare, exposing them to chronic psychological stress. Therefore, it is argued that same day-notice of executions amounts to a violation in that the practice affects prisoners’ mental health. Additionally, notifying death row inmates’ relatives after execution represents a severe interference with the relationship between prisoners and families by preventing practices of closure, contravening the principles stated in article 12 of the UDHR.

DOMESTIC LAWSUIT OVER SAME-DAY NOTICE AS A TOOL FOR REFORM

Delayed notice of execution prevents death row inmates from the opportunity to file an objection to their execution order. By restricting an objection to be filed and heard, delayed notice infringes on a prisoner’s right to a fair trial in all the phases of the criminal procedure, as recommended by article 10 of the UDHR and article 14 of the ICCPR and enshrined in the Japanese Constitution. On these grounds, last November two death row inmates sued the Japanese government before a district court in Osaka over the same-day notice system, pointing the finger against its unlawful, unconstitutional and inhumane nature. The government defended the practice as a means to shield prisoners from the suffering, which they claim would ensue from the knowledge of their execution day. Yet Yutaka Ueda, the lawyer representing the two death row inmates in this case, flagged the unreasonableness of the measure, urging the government to adopt substantial changes, and seeking an award of 22 million yen ($193,594) to his clients.

The 2021 Osaka inmate case represents a rare opportunity to shed light on Japan’s death row inmates’ realities, to exert pressure on the government, and remind Japanese society of the humanity of prisoners sentenced to death. The hope is that a human rights approach will gain enough momentum to eradicate modern society’s most rigid death penalty practices in Japan.

Gianpaolo Mascaro is a Law graduate, specialized in International Development and Human Rights Law. His fields of main interest are International Criminal and Humanitarian Law, with the particular motivation to uncover the intersection between legal and social issues giving rise to violations of human rights worldwide.

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