DPRU Q&As: Professor Jon Yorke, Director of the BCU Centre for Human Rights

In the second of the DPRU’s series of Q&As with death penalty experts from around the world, Jon Yorke, Professor of Human Rights and Director of the Centre for Human Rights at Birmingham City University, tells DPRU Research Officer Daniel Cullen about his involvement in advocacy at the United Nations, his experience of providing international legal advice and his work on litigation in capital cases.

What led you to work on the death penalty?

I first became interested in the death penalty at university, when I took a module on ‘The Politics of the US Supreme Court’. After this, I had the chance to go to the US to work on the death penalty in Oklahoma as a legal intern, which was organised through the charity that is now known as Amicus, working on state cases in the summer of 1996 and federal cases in the summer of 1997.

The internship really impacted me. I will never forget my visits to H-Unit, Oklahoma’s death row, which is constructed partially underground. The inhumanity of this prison really struck me, and I can remember how it made me feel to walk down the long corridor, seeing the rows of cells and then waiting in the interview room for our clients. I can still hear the rattle of the chains.   

Another moving experience was when I attended a candlelit vigil outside the Oklahoma State Capitol Building. It was the night of the execution of Steven Hatch, who was our client and had been convicted of a capital offence even though his accomplice, Glen Ake, committed the murder and subsequently had his sentence commuted by the Supreme Court in the important decision of Ake v. Oklahoma. [1]

At the vigil, we waited for the light to be turned off in the Governor’s Office, indicating the moment of death. When this happened, we knew that Steven had died. A lady, whose name I never knew and who must have been in her eighties, took my hand and said, “Thank you for coming from England to care.” I mention her in my 2008 edited collection, Against the Death Penalty,[2] because in looking back, I see this as a motivation for me to continue to contribute to the global efforts to help bring about a world free of the death penalty.  

After gaining this practical experience in the US, I returned to the UK and completed a PhD on the death penalty at Warwick University. I was fortunate in that Against the Death Penalty included chapters by colleagues I greatly respect and who have been mentors, Professor Bill Schabas and the late Professor Roger Hood. Following on from the publication of this book, I was invited by the Spanish government to advise them on their death penalty proposals within the European Union and United Nations, which led on to a further invitation to draft the original death penalty policies for the European External Action Service within the EU-NGO Forum.  

You’re a member of the UK’s FCDO Pro Bono Lawyers Panel – what has this role involved?

It evolved from my role in the UK Foreign Secretary’s Expert Group on the Death Penalty, which advised the British government under the HMG Strategy on Abolition of the Death Penalty. The Expert Group provided advice on death penalty cases and for appropriate bilateral and multilateral engagement, for example providing input for the discussions in London and New York for the UN General Assembly’s biennial vote on the Resolution on the moratorium on the death penalty.

In the Expert Group, one of the cases I advised on was the case of Meriam Ibrahim in Sudan, which led to me drafting a memo on ‘Islam and the Death Penalty’, that formed the basis for a publication with my colleague Dr Amna Nazir.

The Expert Group was disbanded by Philip Hammond as Foreign Secretary in 2015, as the government adjusted its infrastructure for helping safeguard human rights globally, but in 2014 I was appointed to the UK Foreign, Commonwealth and Development Office’s (FCDO) Pro Bono Lawyers Panel, which is made up mostly of barristers and solicitors, along with some academics and civil society members, who advise the government on the human rights of UK nationals facing criminal proceedings, detained or imprisoned overseas.

As part of my role on the Pro Bono Lawyers Panel, in 2014 I was tasked with organising a brief writing team for the UK’s amicus curiae brief to be filed in the Texas Court of Criminal Appeals on behalf of Linda Carty, a British woman detained on death row in the US. Then in 2018 we filed the government’s brief in support of Linda to the US Supreme Court, raising the international arguments concerning the denial of a fair trial, ineffective assistance of counsel, and prosecutorial misconduct.

How were you involved in supporting the case of Meriam Ibrahim?

This was a moment of serendipity. The case of Meriam Ibrahim became well known around the world in 2014 after she was convicted of apostasy (for refusing to renounce her Christian faith), for which she was sentenced to death, and sexual immorality (due to her being pregnant through her marriage to a Christian man), for which she was sentenced to receive 100 lashes. One of my former students, Elshareef Ali Mohammed, was part of Meriam’s legal team in Sudan. He had studied the LLM in International Human Rights at BCU in 2013, and then returned home to work as a lawyer.

I became involved at the point the case reached the Court of Appeal in Khartoum. Elshareef asked me to provide advice on the international human rights law issues which applied to the case. A petition was presented to the Court, and at the same time the legal team also submitted an application to the African Commission on Human and Peoples’ Rights, given the urgency of the case.[3] A number of other organisations and individuals were closely involved in supporting the case, including the UK-based NGO Redress.

Ultimately, the Court of Appeal commuted Meriam’s sentence. After her release from prison, however, she was arrested again, but managed to leave the country thanks to the political discussions which were taking place and to the intervention of the Italian government, and she is now living in the US.

Following the case we held an event at BCU on 1 October 2014, ‘Meriam Ibrahim: The Case that Gripped the World’. We had previously discussed the case in the Expert Group with Baroness Sayeeda Warsi, who provided a lot of encouragement and support, and at the event Baroness Joyce Anelay, then Minister of State in the House of Lords, provided a speech on the government’s policies that help promote abolition. For his wonderful human rights work in Sudan, Elshareef was presented with the BCU Alumni of the Year award, and we continue to work with him and the Sudanese Human Rights Initiative.

How are you using the UN’s Universal Periodic Review process for death penalty advocacy?

Since 2016, through the Centre for Human Rights at Birmingham City University (BCU), we’ve engaged with the UN’s Universal Periodic Review (UPR). The UPR is a state-driven process under the auspice of the UN Human Rights Council, in which all states’ human rights records are reviewed during a cycle of 4.5 years. We’ve found that the UPR provides some compelling and productive opportunities to promote the worldwide abolition of the death penalty.

My colleagues Dr Alice Storey, Dr Amna Nazir and I lead the BCU UPR Project, through which we’ve filed ‘stakeholder reports’ as part of selected states’ reviews, which has presented many opportunities to sustain the abolitionist agenda.

We’ve adopted a substantial strategy to focus on retentionist countries and make UPR recommendations for them to end executions and abolish the death penalty in line with international standards. This began with our submission for the United States of America’s review, and we’ve now widened our jurisdictional focus, filing reports in the UPRs of: Sudan, South Sudan, Myanmar, Thailand, Papua New Guinea, the Syria Arab Republic, Indonesia and the Philippines.     

We’ve learned a lot from UPR Info, the NGO which organises UPR pre-session meetings for civil society, and have endeavoured to follow their advice, including by making our contributions ‘SMART’ compliant. As such, we have honed our strategy through adopting a specific incremental approach in each report, which meets the state at the stage it is at, but in essence encourages three steps: the adoption of a moratorium and holding internal dialogue on the death penalty; then de jure abolition; and finally the translation of internal abolition into joining the community of states under the Second Optional Protocol to the ICCPR aiming at the abolition of the death penalty.

What has become apparent to us is that the UPR helps to maintain transparency over states that still impose the death penalty, keeping the problem of punishment on the international agenda.

In our 2019 discussions with the Gambia Ministry of Justice and the Gambia Human Rights Commission during their review, for example, it was clear that a consciousness of coming to this UPR had helped them to impose domestic abolition and also to ratify the Second Optional Protocol.

We raised the issue of the death penalty in our UPR stakeholder report for Papua New Guinea in October 2021, and their domestic abolition in January 2022 is consistent with the recommendations on the incremental process proposed to the country and which was also noted by the Working Group on the Universal Periodic Review. We can now use these examples to encourage Papua New Guinea to ratify the Second Optional Protocol.

The UPR is also an excellent way for civil society to engage together, share best practices and create further civil society spaces for collaborations, which can include working with National Human Rights Institutions. The work which is achieved in the domestic settings can then be specifically affirmed in the review in Geneva.

Furthermore, the UPR provides universities with a wonderful opportunity for students to engage in research for stakeholder reports, providing excellent extra-curricular and employability experiences. We have involved LLB, LLM and PhD students in our research and advocacy work at the UN, and it has been fantastic for their career development. They have worked on stakeholder reports which have been cited by the UN Human Rights Council’s Working Group on the UPR, which is a fantastic and interesting experience to discuss with future employers!

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Jon Yorke is Professor of Human Rights and the Director of the BCU Centre for Human Rights at Birmingham City University. He is a member of the UK Foreign, Commonwealth and Development Office’s Pro-Bono Lawyers Panel, in which he advises the British Government on death penalty matters and he has drafted amicus curie briefs for the UK Government’s submissions in US courts. His recent work focuses upon submitting on the death penalty as a violation of international law in Stakeholder Reports to the Universal Periodic Review.