The resilience of treason laws and the fight for global abolition

Scholarly and activist efforts to achieve global abolition of the death penalty have generally focused on the workings of the ordinary criminal justice systems – documenting the plight of death row detainees, criticizing unfair proceedings, seeking to exonerate convicted persons and showing how the death penalty does not deter murder. From this perspective, the existence of seldom-enforced laws making treason a capital offence may look trivial. However, rather than an insignificant, archaic, phenomenon, capital treason laws – and what they represent – should be of concern for abolitionists, and may become one of the major factors delaying or preventing full, global abolition. Moreover, the common focus on procedural concerns in contemporary abolitionist efforts may be inadequate in attempts to dismantle such laws, and new strategies would likely be required.

Treason is one of the earliest-defined and most universally punished offences (for example, it is the only criminal offence mentioned in the American constitution). Traditionally, treason has carried the death penalty universally and axiomatically, and during the early modern period the state’s death penalty apparatus was directed at its most ferocious at those convicted of treason. When the scope of capital offence began to be restricted in the mid-nineteenth century, treason proved relatively immune to abolition, and became one of the most common capital offences. These days, according to Delphine Lourtau, “almost all death penalty states deem treason to be deserving of death; after murder it is the most common capital offence.” [i] Many countries abolished the death penalty for murder while retaining it for treason, in some cases (e.g. the UK, Canada, Australia, Ireland) moving to full abolition after a few decades, while in other cases (e.g. Israel, Brazil) maintaining it. In some cases, it is applicable only during wartime. Though executions for treason have become relatively uncommon, they are still part of the contemporary landscape; between 2004 and 2014, 15 states carried out at least one execution for treason.[ii]

In a number of states worldwide, death sentences are passed for treason offences, governments use the threat of capital prosecutions, or the possibility is discussed in the public sphere. For example, following the coup in Myanmar in February 2021, the military regime charged opposition activists with treason, which can attract the death penalty; in Yemen, dozens of people have been sentenced to death for treason since the outbreak of the civil war in 2014, including 35 Parliamentarians who were sentenced to death (in absentia) on treason charges in March 2020; and in Nigeria, several human rights defenders faced treason charges which carry the maximum penalty of death. The December 2019 death sentence (in absentia) for treason imposed by a Pakistani court on the country’s former ruler, Pervez Musharraf, is one recent prominent reminder that in the contemporary world, treason remains an active capital offence.

But perhaps more crucially, even when treason capital laws remain dormant – where no death sentences are imposed over prolonged periods – it still plays a significant role in the death penalty universe. Committed abolitionists often refer reassuringly to such dormant capital laws as “only symbolic,” assuming their existence “on the books” to be insignificant – a temporary phase toward full abolition. The reality, however, can be more complex. First, even when not used, capital treason laws have real consequences on criminal justice systems and political cultures: they can, for example, legitimize life imprisonment as only the second most-severe sanction, provide prosecutors with pressure power to secure plea bargains, stigmatize those accused (judicially or politically) of treason, and so on. More profoundly, they validate the political and moral order in which the death penalty is considered legitimate, and hinder the total rejection of the death penalty as always and inherently unacceptable. With the relative recent successes in dismantling the death penalty for murder, this issue should become of growing concern for those aiming at full global abolition. 

What makes treason so resilient as a capital offence? First, by attaching the ultimate penalty to betrayal of the nation, treason capital laws send important messages about the primacy of national loyalty and identity, still crucial issues for many nation-states. In this context, dormant capital laws are not just symbolic, but have significant symbolic functions. Second, they provide governments with a powerful instrumental tool against opposition and dissent, which many are reluctant to let go off. Third, for those hesitant to concede that there could never be any circumstances in which the death penalty might be used, retaining the death penalty on the books for this exceptional offence – which can be construed as worse than murder by threatening the life of the nation – appear to be a reasonable compromise. Fourth, it is exactly the exceptional nature of the offence – and its prosecution – which leaves it relatively immune to abolition efforts and arguments.

Treason thus exemplifies an important trend of bifurcation in death penalty norms and policies: as the use of the death penalty in the ordinary criminal justice system declines and is increasingly seen as intolerable, it remains entrenched for exceptional political crimes against the state, for offences under military law rather than civilian laws, or during wartime or emergencies rather than during peacetime. This at least partly reflects exceptions in international and regional treaties, such as the Second Optional Protocol to the International Covenant on Civil and Political Rights, which enables parties to make a reservation allowing the death penalty in wartime. What may have appeared as a reasonable compromise at the time, could now become a major obstacle for the ambition to achieve full abolition. That treason still carries the death penalty in many countries might be proven not as a fading vestige of the past but as a major challenge in the next phases of the fight for global abolition.  

What should be the implications for abolitionist efforts? Much of the contemporary arsenal of arguments against the practice of the death penalty may be off-target in this context. Demonstrating that the imposition of the death penalty is inherently arbitrary – central in recent abolitionist efforts in relation to murder, especially in the USA – is not so pertinent in relation to treason laws. Nor are arguments about patterns of racial discrimination, lack of deterrent effects or spiraling financial costs; all are less relevant to the retention of seldom-used treason laws. Considerations of national security, which often underpin treason laws, may also be a harder target for abolitionist efforts than the biases and problems of ordinary criminal justice systems.

In recent decades much (though of course not all) of the abolitionist effort has emphasized pragmatic arguments, sidelining absolute moral opposition while focusing on procedural issues. The assumption has been that the moral debate has been exhausted and a pragmatic orientation is more effective in changing opinion and policies. This position has been proven largely justified on many fronts, but it may need to be revisited when moving to confront capital treason laws, in order to achieve the goal of full global abolition. Ultimately, the absolutist moral arguments against the death penalty may have to move centre-stage again. 

Ron Dudai is a Senior Lecturer at the Department of Sociology & Anthropology, Ben Gurion University. He’s a board member of the Journal of Human Rights Practice, where he was previously co-editor. His work has been published in leading journals including British Journal of Sociology, British Journal of Criminology, Law & Social Inquiry, and Punishment & Society, and his monograph Penality in the Underground: The IRA’s Pursuit of Informers is forthcoming from Oxford University Press. In the past he also worked as a policy advisor at the International Secretariat of Amnesty International, and he currently serves on boards of several human rights organizations.

For further reading on the topic of treason as a capital offence, see Ron Dudai’s recently published article in The British Journal of Criminology:

Ron Dudai, “Exception, Symbolism and Compromise: The Resilience of Treason as a Capital Offence” (2021) 61(6) The British Journal of Criminology 1435.