NGO-IGO relations: Amnesty International, Council of Europe, and abolition of the death penalty.

Sithole, Kundai

This article draws on the previously unseen archival record to examine Amnesty International's contribution to the abolition of the death penalty in the Council of Europe legal space. The Parliamentary Assembly and the European Court of Human Rights' contributions are widely discussed in scholarly and policy circles alike, but Amnesty International's substantive contribution in the 1970s and in 1989 is less well documented. Political and legal actors in Strasbourg have significant control over the content and timing of international agreements, but in this case Amnesty International was decisive in shifting substantive considerations as to need for regional intervention to prohibit European states from exposing individuals to the death penalty. Of interest to policy students and international relations scholars alike, documenting Amnesty International activity also provides an illustration of nongovernmental actors' contribution to Strasbourg human rights policymaking over time and across a range of political and judicial actors. Keywords: Council of Europe, death penalty, Amnesty International.

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IN THIS ARTICLE, I EXAMINE THE CONTRIBUTION OF THE HUMAN RIGHTS NONGOVERNMENTAL organization Amnesty International (AI) to Council of Europe (CE) efforts to secure the abolition of the death penalty in the constituent member states. The CE was created on 5 May 1949 to provide a framework of shared norms and values to Western European states and societies, and its ideational goals are crystallized in the European Convention on Human Rights (ECHR) of 4 November 1950. The subject of the death penalty has been debated in the CE since 1949, but the key years of change were between 1958 and 2010. While there is ample literature on promotion by the Parliamentary Assembly (hereafter Assembly) of regional legislation to secure domestic abolition of the death penalty, (1) AI's efforts in the CE 1970s abolitionist movement are less well known. Further still, less well documented beyond legal scholarship is that AI's intervention in Soering v. United Kingdom (1989) helped the European Court of Human Rights (hereafter Strasbourg Court) conclude that exposure to the death penalty is contrary to the ECHR.

Central to my argument in this article is that, while the constituent states have significant control over the content and timing of international agreements, international nongovernmental organization (INGO) agency was decisive in shifting the CE members' decision toward drafting in 1981-1982 a regional treaty to secure domestic peacetime abolition of the death penalty. AI agency was also decisive in 1989 in persuading the Strasbourg Court to consider the death penalty as contrary to ECHR Article 3, which protects the individual against exposure to torture or inhuman or degrading treatment or punishment. In either case, AI's calls for appropriate regional legal developments drew on normative changes that were already taking place in the member states. The death penalty had fallen into disuse in CE member states, and to promulgate European legislation to secure its domestic abolition was merely to transpose national developments to the regional level. Taking the long view shows that the significance of these AI interventions was not confined to shaping debate on the death penalty only in the 1970s and in 1989. The Strasbourg Court declared in judgment in its most recent significant death penalty case--Al-Saadoon and Mufdhi v. United Kingdom (2010)--that the individual now possesses the "right not to be subjected to the death penalty." (2) This is a far cry from the ECHR Article 2(1) provision of the state's right to the death penalty alongside the individual's right to life.

In examining how AI led other actors in Strasbourg's efforts to prohibit the member states from exposing individuals to the death penalty, this article is also seminal in demonstrating--albeit tangentially--the CE's utility as a policy venue within which the constituent members, the organization's institutions, and INGOs can, together, further mutual ideational goals. To this end, I begin this article with a framework of INGO participation in international organizations. Empirically, I then draw on the archival records of both organizations for the narrative and analysis of AI's contribution and its use of CE structures in its campaign for regional legislation on the abolition of the death penalty. Appealing to policy students and international relations scholars alike, my study thus provides insight into human rights policy making and policy implementation in this lesser known European regional organization. That said, I do not take AI's contribution to helping to tip the balance toward abolition in a single human rights field to be representative of all INGO activity in some way. Neither do I consider the legitimating effects of INGO participation on CE authority, transparency, and accountability.

International Nongovernmental Organizations as Actors in International Organizations

As with all INGOs, AI's contribution to the abolition of the death penalty in the CE legal space points to wider questions as to the legal personality of non-state actors under international law, (3) and to their contribution to norm development and rule enforcement in international relations. (4) International organizations serve as an arena within which INGOs can express and realize their own normative interests on matters of mutual concern. Within international relations scholarship, INGOs are ideational and instrumental actors that strategically employ ideas and normative frameworks to effect policy change. (5) Research on transnational advocacy also points to nonstate actors shopping policy fora in search of the most conducive alliances with international organizations, or the most credible policy venues from which to best influence domestic normative change. (6) To effect the required policy change, INGO reputation, expertise, and reliable information matter. (7)

For the international organization, INGOs serve as strategic allies through which to realize their own normative goals and help ensure success of intergovernmental activities by such means as information dissemination and awareness raising. Formal methods of cooperation may include rules, procedures, or institutional arrangements for INGO participation. As Jens Steffek notes, while bureaucratic agents may demonstrate a greater willingness to cooperate with INGOs on a single or range of policy issues, it remains incumbent on the constituent members to adopt modalities for formal cooperation through some prescribed voting procedure. (8) As gatekeepers, states thus determine INGO participation at all or different phases of the policy cycle: agenda setting, research and analysis, policy decision, policy formulation, policy implementation, and policy monitoring and evaluation. (9) Distinguishing the different policy cycle phases is also useful so as to identify the tools of influence--protests, lobbying, and "naming and shaming"--INGOs employ to achieve their desired policy outcomes. (10) States also determine the type of benefit that INGOs and the international organization may derive from formal cooperation. (11)

Beyond the functional benefit to cooperative regimes and agreements, the literature on nonstate actors in intergovernmental organizations also points to the legitimating effects of INGO participation in global governance. (12) In the post-Cold War era, INGO participation in international organizations is said to be based on either a belief in the legitimating value of participatory democracy in global governance, or strategic adaptation to this norm for the purpose of organizational legitimation, transparency, and accountability. (13) Recent empirical research by Jonas Tallberg et al. adds to this literature by showing that a commitment to democracy within its constituent members and their willingness to surrender some national sovereignty influence the degree to which an international organization is open to nonstate actor participation. (14) Commitment to domestic democracy as well as state perception of national sovereignty costs help explain some variation in transnational actor access to different international and regional organizations. (15) To this, Darren Hawkins provides some insight into the extent to which the CE is accessible to nonstate actors. (16) Compared with the Organization of American States, the CE is said to display a greater willingness for INGO participation in its policymaking structures. For Hawkins, the resultant effects of higher levels of INGO participation are a greater precision in CE rules, increased monitoring, and, it is hoped, greater state commitment to the obligations into which they have entered. A higher level of institutional permeability is more likely to lead to greater intrusion into, and exert greater constraint on, state behavior.

Amnesty International in the Council of Europe Abolition of the Death Penalty

Amnesty International in the Matter of the Death Penalty

The abolition of capital punishment has been debated in the CE since 1958, when the member states provided a mandate to examine the status of the death penalty in the ordinary laws of Western European states. (17) It was not, however, until 1975-1976 that INGOs that enjoy participatory status with the organization began to take a more public role in calling for the CE to amend ECHR Article 2(1), which provides for the member states' right to the death penalty alongside the individual's right to life. ECHR Article 2(1) reads: "Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law." INGO activity to end judicial executions in the CE legal space followed the Assembly's reticence in 1975 to debate and question the member states' right to end life for capital offenses. (18) Swedish member of parliament and Assembly member Astrid Bergegren had tabled a Motion for a Resolution on the Abolition of the Death Penalty on 16 May 1973. (19) Assembly rapporteur on the death penalty Henrik Lidgard duly concluded a study in 1974 on the status of the death penalty in Western Europe, the results of which favored abolition. (20) Proposing to reject the Lidgard Report, the Assembly's Legal Affairs Committee argued that European public opinion and the intergovernmental Committee of Ministers would rebuff a recommendation whose result was likely to threaten state sovereignty and national security. (21) The main Assembly body thus deliberated in 1975 whether to retain the subject of the death penalty on its agenda. (22) In response, AI led other INGOs that enjoy participatory status with the organization to lobby this CE institution. (23)

Amnesty International was created in the United Kingdom in May 1961, following British lawyer Peter Benenson's appeal for the release of "The Forgotten Prisoners" in The Observer newspaper on 28 May 1961. (24) Amnesty International was then established as a permanent international organization in July 1961. (25) This human rights organization is funded through charitable donations and by its membership of over 7 million individuals who are organized in national sections. (26) AI initially centered its campaigns-based work on a limited set of civil and political rights, (27) notably freedom from torture, freedom of expression, and the release of political prisoners who do not advocate violence. (28) Significant gains and recognition followed its first international campaign against torture of 1972. On 9 December 1975, the United Nations (UN) General Assembly adopted the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. (29) AI was awarded the Nobel Peace Prize on 10 December 1977 for its contribution "to securing the ground for freedom, for justice, and thereby also for peace in the world." (30)

AI's hostility toward the death penalty can be traced back to 1968, when it declared its opposition to the killing of political prisoners. (31) Ann Marie Clark notes that the Crime Prevention and Criminal Justice Office in Vienna provided a UN platform from which AI could campaign against political killings. (32) However, it was not until 1980 that AI launched its own campaign against the state's right to end life for capital offenses. (33) That said, the archival record in Strasbourg shows that AI had been active since 1975-1976 in CE efforts to secure regional legislation to abrogate the member states' right to judicial executions. Why elicit the CE as a policy venue, whose place within the history of European integration is overshadowed by the more ubiquitous European Union? The integration of Europe is marked by the parallel historical development of economic integration in the European Union and its predecessors in Brussels, and human rights cooperation in Strasbourg. In the matter of the death penalty, AI did not "venue shop" in search of the most favorable "institutional locations where authoritative decisions are made concerning a given issue." (34) At that time, its intergovernmental human rights mandate and common normative framework assured the CE as the only policy venue within which AI could pursue its own ideational goals, including that of securing de jure abolition of the death penalty in all Western European states. Indeed, AI's application for consultative status in 1963 identified the CE as the only European organization within which "to persuade Governments by tactful representation that their obligations under the European Convention [on Human Rights] can be maintained without danger to internal security." (35) The Assembly's supportive recommendation then highlighted that "the activities of Amnesty International are of interest to the Council of Europe as this Movement has a wide competence in a major field of the Council of Europe's activities [and that] nothing in the Movement's activities ... could possibly run counter to the general policy of the Council of Europe." (36)

The Committee of Ministers granted AI participatory status with the CE on 22 January 1965, (37) in the year after it had received similar UN status. In the words of Tom Buchanan, so soon after its inception in 1961, "Amnesty [International] had succeeded in establishing itself as an actor on the international stage [and] would be increasingly integrated into the international and nongovernmental machinery for protecting human rights." (38)

Amnesty International in the Council of Europe's Death Penalty Policy Cycle

The degree to which an INGO is able to influence policymaking depends largely on the extent to which the respective international organization, its internal institutions, and the member states are receptive to nonstate actor policy goals. (39) Silke M. Trommer and Raj S. Chari argue that ideational INGOs that seek the CE as a policy venue tend to share the organization's normative preferences and interests. (40) However, the archival records show that unlike AI, and indeed most of its own constituent members at the time, the CE did not have an official position on the death penalty prior to its decision of September 1981 to elaborate ECHR Protocol No. 6 to end judicial executions in peacetime. In May 1966, the Committee of Ministers thwarted CE attempts of 1965 to suggest a gradual end to judicial executions in the member states. (41) Such a recommendation had followed a detailed CE survey between 1958 and 1962 into the status of the death penalty in Western European countries, the results of which the rapporteur Marc Ancel published in his report of 1962. (42) Only after the Cold War was the CE active in securing de jure abolition of the death penalty in the Greater Europe. If anything, AI and other INGOs that enjoy participatory status with the organization provided a significant catalyst at a time when the political climate had become so propitious as to tip the balance in favor of regional legislation to secure an end to capital punishment in peacetime in CE member states.

Although CE cooperation with nonstate actors was formalized in 1952, (43) only in 1976 were self-governing permanent structures created for INGO participation within the organization. (44) The Conference of International Nongovernmental Organisations of the Council of Europe (hereafter Conference of INGOs, or Conference) was created to affirm the political role of civil society within the CE. Currently comprising about 320 INGOs that enjoy participatory status with the organization, the Conference's mandate is thus summarized: represent INGOs that enjoy participatory status, identity policy areas within which to cooperate with other CE institutions, adopt action programs, and ensure there is no hindrance to effective INGO participation in the CE. A liaison committee was also tasked with facilitating relations between INGOs within the Conference with other CE institutions. Concurrently, the CE Directorate of Human Rights introduced its own system of organizing a small meeting during the quarterly Assembly plenary sessions to allow a restricted number of INGOs to participate in its activities. Such meetings were intended to "keep members of the [Directorate's] Committee of Experts on Human Rights informed of the points of view of the NGO representatives." (45) It was within this CE institutional framework that AI was able to pursue its ideational goals, not least in the abolition of the death penalty. AI's letter of 6 September 1976 thus called on INGOs in this newly created Conference to exert pressure on CE institutions so as to precipitate regional legislation to secure an end to judicial executions in the member states 46 However, the most immediate outcome to AI's call for de jure abolition in all Western European states occurred outside of this CE context.

AI's rallying call to action of 1976 culminated at the international conference "Abolition of the Death Penalty" in Stockholm on 10-11 December 1977, coinciding with this INGO's receipt of the Nobel Peace Prize in Oslo. The declaration adopted at the Stockholm conference affirmed the death penalty as "cruel, inhuman and degrading treatment and violates the right to life." (47) Relevant discussions at this international conference confirmed that judicial executions had fallen into disuse in Western Europe. De jure or de facto abolition was maintained in twenty-one of the then twenty-two CE member states: Austria, Belgium, Cyprus, Denmark, Federal Republic of Germany, France, Greece, Iceland, Ireland, Italy, Liechtenstein, Luxembourg, Malta, the Netherlands, Norway, Portugal, San Marino, Spain, Sweden, Switzerland, and the United Kingdom. Only Turkey employed the death penalty until 1984. In view of this domestic trend toward abolition, the AI Stockholm conference's Working Party E on the Death Penalty in International Law and Organization recommended that "the Council of Europe should amend the European Convention on Human Rights so that it ... explicitly prohibits the introduction or re-introduction of the death penalty. This might be done by the removal of the death penalty exception to Article 2 (right to life)." (48) This INGO recommendation at Stockholm thus helped crystallize AI's stance on the need for de jure abolition within the CE legal space. That the trend toward abolition was already in motion in Western Europe helped AI in its use of other interested CE institutions to convince the Committee of Ministers to manifest domestic normative change into a regional treaty to end capital punishment.

Agenda Setting by Amnesty International in the Council of Europe's Abolition of the Death Penalty

Mindful of the Committee of Ministers' position that the death penalty remain a matter for municipal law, AI's agenda-setting strategy between 1977 and 1980 was to appeal to subsidiary organs to push the idea of abolition through to this CE decisionmaking institution. Agenda setting by interest groups and other nonstate actors may allow for marginal issues that are typically met with resistance within the established political arrangements to "break through to create dramatic policy changes." (49) Scholars of transnational advocacy networks have shown that for such policy change to occur, it is necessary for nonstate actors to secure the support of state actors who endorse the norms advocated, and ensure for norm development and rule enactment within domestic and international structures. (50) Support from the Austrian minister of justice Christian Broda led the CE Conference of European Ministers of Justice to debate the death penalty in June 1978. (51) Broda had attended AI's Stockholm conference, where he affirmed the death penalty as inhuman and degrading treatment: (52)

   What else is the execution of the death sentence, if not an inhuman
   and degrading treatment? ... What else is the pronouncement and the
   execution of the death sentence, if not a subjection to cruel
   treatment or punishment? What else is the waiting for the death
   sentence and the execution for a human being, if not the worst
   torture? He [sic] who rejects torture and any inhuman or degrading
   treatment of persons has as well to reject the death penalty. (53)

Representing Austria at the 11th Conference of European Ministers of Justice on 21-22 June 1978, Broda presented this interministerial summit with a "Memorandum on the Question of the Death Penalty." (54) Broda "propose[d] that the European Ministers of Justice join a common endeavour ... to examine the possibilities of moral and practical support for the 'Declaration of Stockholm' [adopted] at the International Conference on the Abolition of the Death Penalty, convened by Amnesty International." (55) To help persuade the Conference of European Ministers of Justice to support this ideational goal, Broda's Austrian Memorandum quoted directly from AI's Stockholm Declaration:

   given the rarity in the use of the death penalty in the few Council
   of Europe member countries that retain it, [participants at the
   Stockholm Conference] urged the Council of Europe to amend the
   European Convention on Human Rights so as to provide unambiguously
   for conformity with the most advanced international position,
   probably by providing that the death penalty exception to Article 2
   (right to life) be removed. (56)

The Conference of European Ministers of Justice helped pave the way for the CE decisionmaking Committee of Ministers to draft regional legislation to secure domestic abolition of the death penalty. (57) Resolution No. 4 adopted on 21 June 1978 at this Conference of European Ministers of Justice called on "the Committee of Ministers of the Council of Europe [to] refer questions concerning the death penalty to the appropriate Council of Europe bodies for study as part of the Council's Work Programme, especially in the light of the Austrian memorandum and the exchange of views at the present Conference. ..." (58) The Committee of Ministers responded on 25 October 1978 with ad hoc terms of reference for the European Committee on Crime Problems (ECCP) and Steering Committee on Human Rights to provide separate opinions on the European Ministers of Justice's Resolution No. 4.59 An excerpt from the ECCP opinion presented to the Committee of Ministers in April 1980 best summarizes the two steering committees' common position that action be taken "to strive for the establishment of new and appropriate European standards which concern the abolition of the death penalty, at least for times of peace, and safeguard against its reintroduction." (60)

Lobbying by AI also helped convince the Assembly to encourage the Committee of Ministers to amend the ECHR Article 2(1) death penalty clause. (61) AI revealed before the Conference of INGOs in January 1980 the most significant achievement in its lobbying of the Assembly: "In August 1979, Amnesty International submitted to the Council of Europe a memorandum on the abolition of the death penalty. This memorandum was subsequently reproduced as a document of the Legal Affairs Committee of the Parliamentary Assembly (doc AS/Jur (31) 12)." (62) Incorporating this AI Memorandum on the death penalty onto its own agenda helped revive previous Assembly efforts of 1973-1975 to debate and question the constituent members' right to the death penalty, at least in peacetime. AI--and, now, the Assembly's Legal Affairs Committee--acknowledged that the "exchange of views" at the "11th Conference of European Ministers of Justice" on "the abolition of the death penalty" had "been referred to the appropriate Council of Europe bodies." (63) Similarly, both recognized that

   there are now several factors which would make steps by the Council
   of Europe for the abolition of the death penalty especially
   timely.... [T]here is a clear trend within the Council of Europe
   community towards the abolition of capital punishment. Action by
   the Council of Europe to codify this trend would strengthen the
   Council as a living institution, and show that it is still
   committed to the humanitarian values it was founded upon thirty
   years ago. (64)

As with AI before it, the Assembly's Legal Affairs Committee appealed to the CE constituent members to "abolish the death penalty for all offences from their legislation," and "amend Article 2 of the European Convention on Human Rights so that it no longer permits the death penalty." (65)

Subsequent to this new remit, and inspired by this AI Memorandum, Assembly rapporteur on the death penalty Carl Lidbom

   drafted a report, a resolution [727] and recommendation [891] by
   which the Parliamentary Assembly would appeal to the member-states
   of the Council of Europe to abolish capital punishment for crimes
   committed in times of peace and would recommend to the Committee of
   Ministers to amend article 2 of the European Convention on Human
   Rights to bring it in line with the resolution. (66)

The Stockholm Declaration and Conference of European Ministers of Justice Resolution No. 4 were appended to this Lidbom Report of March 1980. (67) Overall, conducive internal structures and external normative environment provided AI with the opportunity to take up and lead the campaign for abolition. As Susan Sell and Aseem Prakash note, "Success in influencing policy processes lies ... in the network's superior abilities to create and make the most of political opportunities by exploiting a crisis, constructing a problem, mobilizing a coalition, and grafting its agenda onto policy debates." (68)

Drafting and Implementing Regional Legislation to End Judicial Executions in Peacetime

While proposals for a new treaty or additional protocol to an existing convention may come from any CE institution, conference of specialized ministers, or steering committee, it is consistent with the literature that policy decision and policy implementation remain matters on which only the intergovernmental Committee of Ministers may decide. (69) Indeed, in recommending the abolition of the death penalty, the joint opinions of the ECCP and Steering Committee on Human Rights recognized that such a decision for regional legislation to secure an end to judicial executions in the CE legal space must come from only the highest political echelon. (70) Composed of the foreign ministers of its forty-seven member states, the Committee of Ministers alone decides the CE Programme of Work, including the drafting of human rights treaties for the member states to adopt, ratify, and implement. The Committee of Ministers' meetings are held in private. INGOs have access only to this institution's non-confidential documents. Committee of Ministers' steering committees, expert committees, and other bodies may involve INGOs that enjoy participatory status with the organization to help define CE activities.

Thus, it is to be expected that the archival record does not show AI's--nor indeed any other INGO's--direct contribution to the Committee of Ministers' deliberations on the death penalty during this policy cycle phase. However, anchoring the Steering Committee on Human Rights' subsequent ad hoc terms of reference in the Al-inspired Assembly conclusions, the Committee of Ministers requested

   an opinion on the action which could be taken as part of a work
   programme with a view to the abolition of the death penalty [in
   time of peace] [including on the possibility of elaborating an
   additional Protocol to the European Convention on Human Rights] in
   the light, inter alia, [of Recommendation 891 (1980) and Resolution
   727 (1980) of the Parliamentary Assembly]. (71)

Following internal agreement, the Committee of Ministers requested that the Steering Committee on Human Rights draft ECHR Protocol No. 6 in late 1981 and 1982. (72) The Committee of Ministers adopted this first CE abolitionist treaty on 28 April 1983 for member state adoption. Protocol No. 6 entered into force on 1 March 1985.

Member state adoption of Protocol No. 6 then raises the question of policy implementation. While the Committee of Ministers decides collectively on matters of policy decision and policy formulation, it is for the individual member states to consider incorporation of CE rules into domestic political and legal structures. Individual constituent members are also responsible for ensuring domestic compliance and effectiveness of CE regional obligations into which they have entered. Although this phase of the policy cycle remains at the level of state and government, international and domestic non-state actors may exert pressure on state officials and state institutions to adopt and incorporate external policies and norms. (73) Even with respect to Western European states where judicial executions ceased in 1984, AI was active in attempting to elicit accession by those states that had yet to accede to Protocol No. 6. Coinciding with this treaty's entry into force, AI's Death Penalty Handbook of 1985 comprised guidance notes for its individual members and sections to employ when campaigning for abolition. (74) These guidance notes underscored the Conference of European Ministers of Justice's statement of May 1980, which highlighted that in many CE member states the abolition of the death penalty had not resulted in "any negative consequences in the field of criminal policy." (75) AI's guidance notes also underscored a resolution the European Parliament had adopted in January 1986, calling on retentionist states in the European Community--which were also CE members--to accede to Protocol No. 6. (76) By January 1986, only Austria, Denmark, Luxembourg, Spain, and Sweden had ratified this treaty. Overall, between 1983 and 1989, thirteen members ratified Protocol No. 6. (77) Belgium, Cyprus, Greece, Ireland, Turkey, and the United Kingdom were the last established members to adopt this abolitionist ECHR protocol.

Amnesty International as Amicus Curiae, Soering, and the European Court of Human Rights

Ensuring member state compliance with its policies and treaties--policy monitoring and policy implementation--is a task that befalls CE institutions. However, Protocol No. 6 is a supplement to the main ECHR text of 1950. Unlike other CE treaties, national courts and the Strasbourg Court monitor domestic compliance with the ECHR. (78) Acting in the interest of justice, ECHR Article 36 allows such third parties as AI to assist the Strasbourg Court in this task. Third parties cannot, however, act on behalf of victims. Nonlitigants, including INGOs, may intervene on a specific or general point in a case under review with a view toward providing expert knowledge on a novel or complex area of litigation, furnishing detailed analysis on a point of law, alerting judges to the broader implications of potential unintended consequences of a ruling, or demonstrating a broader range of arguments that the litigants may have strategically or unwittingly ignored. (79) Third parties act on their own initiative to furnish information, which the Strasbourg Court may accept at its own discretion. (80) Rarely does the Strasbourg Court solicit third-party intervention. (81) Third-party contribution may also help open the Strasbourg Court to public opinion and dialogue, represent the public interest, and remind states of their obligations under international law. (82) In the words of Laura Van Den Eynde, third-party intervention before the Strasbourg Court is intended "to challenge national laws, practices and interpretations, to establish precedents, to inform and influence the Court and to extend the interpretation of the Convention." (83)

The seminal case of Soering v. United Kingdom (1989) presented AI with an opportunity to influence normative change in Strasbourg death penalty adjudication. (84) The ECHR mechanisms in Strasbourg had hitherto refused to challenge the member states' right to the death penalty. (85) However, by December 1989 seventeen of the twenty-three CE members had signed Protocol No. 6, (86) and fourteen signatories had ratified it. (87) Despite this, the now former European Commission on Human Rights' (Commission) report in Soering of 1989 considered the death penalty neither a violation of the ECHR Article 3 prohibition on torture or inhuman or degrading treatment or punishment, nor to be in contradiction with present-day normative conditions in Europe. To alert the Strasbourg Court to the broader implications of its rulings in death penalty cases, AI thus employed its previous strategy of framing the need for regional abolition to reflect the absence of judicial executions in the member states. (88)

Following transmission of the Soering case from the Commission to the European Court of Human Rights on 25 January 1989, AI submitted written comments in which it

   considere[d] that it would be unfortunate for the Court to follow
   the Commission on this point.... [W]e submit that the death penalty
   must now be understood to violate Article 3 for the reasons which
   follow.... [I]t is submitted that Western European regional
   standards of penal policy have now evolved so far that what was
   once an exception to general norms protecting the right to life
   and, perhaps, the right not to be subjected to torture or inhuman
   or degrading treatment or punishment must now be held to constitute
   an anachronism in Western Europe, no longer worthy of restricting
   the full scope of the basic norms. (89)

AI's intervention thus continued, and "there is a virtual consensus in Western European legal systems that the death penalty is, under current circumstances, no longer consistent with regional standards of justice and human rights." (90)

Analysis of the European Court of Human Rights' legal reasoning illustrates a fundamental turn from the previous ruling by the Commission. To guide its own interpretation of the ECHR in Soering, it is especially significant that the Strasbourg Court drew substantively on this AI amicus curiae brief. With respect to ECHR Article 3, the Strasbourg Court acknowledged that "Amnesty International in their written comments ... argued that the evolving standards in Western Europe regarding the existence and use of the death penalty required that the death penalty should now be considered as an inhuman and degrading punishment within the meaning of Article 3." (91) Then affirming its own newly formed position as influenced by AI's amicus curiae brief, it stated that "the Court cannot but be influenced by the developments and commonly accepted standards in the penal policy of the member States of the Council of Europe in this field.... De facto the death penalty no longer exists in time of peace in the Contracting States to the Convention." (92) Direct quotation from this INGO brief then served to fully substantiate the Strasbourg Court's final and binding judgment in Soering: "this 'virtual consensus in Western European legal systems that the death penalty is, under current circumstances, no longer consistent with regional standards of justice,' to use the words of Amnesty International, is reflected in Protocol No. 6 (P6) to the Convention." (93) In its summation with respect to ECHR Article 3, the Strasbourg Court considered that overall "present-day attitudes in the Contracting States to capital punishment are relevant for the assessment whether the acceptable threshold of suffering or degradation has been exceeded." (94)

The utility of this AI intervention lay in its ability to help the Strasbourg Court establish and affirm the existence of a European consensus on a particular ECHR guarantee. AI's written comments also alerted the regional court to the increased protection of individual rights by CE member states with respect to the death penalty and the ECHR Article 3 prohibition on torture or inhuman or degrading treatment or punishment. Such third parties as AI hope that such information prompts the Strasbourg Court to revise its stance on or interpretation of a particular human rights policy. Of AI's twenty-two interventions to date, (95) violations were found by the Strasbourg Court in fourteen cases, no ECHR violations were found in three cases, two cases were struck off, and three are pending. (96) AI's amicus curiae intervention in Soering thus provided the foundation from which the Strasbourg Court could adopt a teleological approach in its dynamic interpretation of the ECHR guarantees, such that the individual's "right not to be subjected to the death penalty" would, eventually, trump the member states' historic right to end life for capital offences. (97) As Jon Yorke illustrates, Soering was the Strasbourg Court's first attempt to balance the death penalty provision under ECHR Article 2(1) with the emerging normative conditions in Europe. (98) The CE legal space is now free of the death penalty. Belarus remains the only European country to employ the death penalty and is thus not a CE member. Overall, the Soering case demonstrates AI's significant informational role in influencing the Strasbourg Court to revise substantively its assessment on the death penalty in relation to both domestic norms in CE member states and extradition to third countries that still employ this punishment. It is of no discredit that AI did not provide the CE with substantive expertise on capital punishment before the mid to late 1970s. CE institutions had already published two significant reports on the status of the death penalty in Western Europe: the Ancel Report of 1962 and the Lidgard Report of 1974. (99)

Conclusion

The archival record helped substantiate the argument that, while the constituent members possess significant control over the content and timing of international agreements, INGO agency by AI was central to the shift in CE member states' and the Strasbourg Court's perception as to the state's right to expose individuals to the death penalty. That said, while its agenda-setting contribution in the Assembly and Conference of European Ministers of Justice led to supplementation of ECHR Article 2(1), the final outcome fell short of AI's recommendation in the Stockholm Declaration of 1977 and in its "Memorandum on the Death Penalty" adopted by the Assembly's Legal Affairs Committee in 1979. AI had sought revision to the ECHR such that it "no longer permits the death penalty," (100) and "prohibits the introduction or reintroduction of the death penalty." (101) ECHR Protocol No. 6 secures only the peacetime abolition of the death penalty in the signatory states. It was not until 3 May 2002 that the Committee of Ministers adopted a second abolitionist protocol--ECHR Protocol No. 13--to secure an end to judicial executions in all circumstances. Even this subsequent protocol does not prohibit introduction nor re-introduction of the death penalty in abolitionist states. But prior to this, it was shown that Soering v. United Kingdom provided AI with the opportunity to influence the substantive interpretation of ECHR Article 3 such that the Strasbourg Court's case law prohibits the member states from exposing individuals to the death penalty in Europe and beyond. (102)

AI's contribution to securing regional legislation on the abolition of the death penalty also sheds light on the three levels of human rights policy making within the Convention regime:

1. First, within Council of Europe institutions where broad abstract principles are debated and codified into human rights norms the member states can adopt, implement, and enforce.

2. Second, at the state level where national actors in Strasbourg and domestically deliberate individual state interests in light of the collective obligations the ECHR imposes on CE constituent members.

3. Third, within the European Court of Human Rights where state domestic conduct is subject to qualified judicial review in light of the same CE norms and legislation the member states chose to incorporate into the ECHR framework.

AI's campaign thus illustrates the evolution in INGO activity in Strasbourg human rights policy making over time and across a range of political and judicial actors.

While states and their bureaucratic agents have been willing to accommodate actors such as AI into organizational human rights policy making, members of the Conference of INGOs still depend on other CE institutions to effect INGO policy goals. Even when its arguments for abolition resonated with normative developments already taking place in Western European states, and even when regional prohibition imposed no direct cost to contracting parties, it was still necessaiy for AI to secure the support of subsidiary institutions to press the Committee of Ministers for regional legislation to end judicial executions. That said, although the institutional, political, and legal structures within which they operate mediate nonstate actor participation, AI's influence in CE human rights policy making shows that INGOs have contributed to transforming and recreating the normative structure within which they operate. Overall, AI's contribution to securing the abolition of the death penalty in Europe has helped the CE in its quest to pursue a postwar shared normative framework within which to limit state violence and define appropriate state conduct toward individuals.

Notes

Kundai Sithole was research associate in the Department of Politics and International Studies at the University of Cambridge. Her research focus is on political legitimacy and the Strasbourg human rights regime. She was previously Anglo-German Research Fellow in the Department of Politics and International Relations at the University of Oxford.

(1.) See, for example, Jon Yorke, "The Evolving Human Rights Discourse of the Council of Europe: Renouncing the Sovereign Right of the Death Penalty," in Jon Yorke, ed., Against the Death Penalty: International Initiatives and Implications (Farnham: Ashgate, 2008), pp. 43-73.

(2.) Al-Saadoon and Mufdhi v. the United Kingdom, [2010] ECHR 282 (4 October 2010), par. 115.

(3.) Anna-Karin Lindblom, Non-governmental Organisations in International Law (Cambridge: Cambridge University Press, 2006).

(4.) See, for example, Jens Steffek, "Explaining Cooperation Between IGOs and NGOs--Push Factors, Pull Factors, and the Policy Cycle," Review of International Studies 39, no. 4 (2013): 993-1013; Elizabeth Bloodgood, "The Interest Group Analogy: International Non-governmental Advocacy Organisations in International Politics," Review of International Studies 37, no. 1 (2011): 93-120; Christer Jonsson and Jonas Tallberg, eds., Transnational Actors in Global Governance: Patterns, Explanations and Implications (Basingstoke: Palgrave Macmillan, 2010); Kathryn Sikkink, "Human Rights, Principled Issue-networks, and Sovereignty in Latin America," International Organization 47, no. 3 (1993): 411-441; Kal Raustiala, "States, NGOs and International Environmental Institutions," International Studies Quarterly 41, no. 4 (1997): 719-740.

(5.) Susan Sell and Aseem Prakash, "Using Ideas Strategically: The Contest Between Business and NGO Networks in Intellectual Property Rights," International Studies Quarterly 48, no. 1 (2004): 143-175.

(6.) Bloodgood, "The Interest Group Analogy"; Silke M. Trommer and Raj S. Chari, "The Council of Europe: Interest Groups and Ideological Missions?" West European Politics 29, no. 4 (2006): 665-686.

(7.) Bloodgood, "The Interest Group Analogy."

(8.) Steffek, "Explaining Cooperation Between IGOs and NGOs."

(9.) Ibid.

(10.) Jutta Joachim, Bob Reinalda, and Bertjan Verbeek, "International Organizations and Implementation: Pieces of the Puzzle," in Jutta Joachim, Bob Reinalda, and Bertjan Verbeek, eds., International Organizations and Implementation: Enforcers, Managers, Authorities? (London: Routledge, 2007), pp. 3-18.

(11.) Charli Carpenter, "Governing the Global Agenda: 'Gatekeepers' and 'Issue Adoption' in Transnational Advocacy Networks," in Deborah D. Avant, Martha Finnemore, and Susan K. Sell, eds., Who Governs the Globe? (Cambridge: Cambridge University Press, 2010), pp. 202-237.

(12.) See, for example, Jan-Aart Scholte, ed., Building Global Democracy? Civil Society and Accountable Global Governance (Cambridge: Cambridge University Press, 2011); Lucio Levi, Giovanni Finizio, and Nicola Vallinoto, eds., The Democratisation of International Institutions: First International Democracy Report (Abingdon: Routledge, 2013).

(13.) Jonas Tallberg, Thomas Sommerer, Theresa Squatrito, and Christer Jonsson, The Opening Up of International Organizations: Transnational Access in Global Governance (Cambridge: Cambridge University Press, 2013).

(14.) Ibid.

(15.) Ibid.

(16.) Darren Hawkins, "Protecting Democracy in Europe and the Americas," International Organization 62, no. 3 (2008): 373-403.

(17.) European Committee on Crime Problems, Sub-Committee No. 1, Minutes, CEPC-I (58)1 (14 November 1958).

(18.) Parliamentary Assembly, Report on the Abolition of Capital Punishment (Rapporteur: Mr. Lidbom), Doc. 4509 (18 March 1980).

(19.) Parliamentary Assembly, Resolution 3297(1973) Motion for a Resolution on the Abolition of the Death Penalty (16 May 1973).

(20.) Parliamentary Assembly, Commission des questions juridiques, Pour l'abolition de la peine de mort--note presentee par M. Lidgard rapporteur, AS/Jur (26)6 (14 June 1974).

(21.) Parliamentary Assembly, Minutes (29 January 1975).

(22.) Parliamentary Assembly, Demande de retrait du role de l'Assemblee d'une question inscrite a l 'ordre du jour (Lettre du President de la Commission des questions juridiques au President de l'Assemblee), AS/Bur (26)30 (27 January 1975).

(23.) Conference of International Non-governmental Organisations, Note Presented by Amnesty International Dated 6 September 1976, H/ONG (76)5 (13 September 1976).

(24.) Peter Benenson, "The Forgotten Prisoners," The Observer, 28 May 1961, p. 21.

(25.) Parliamentary Assembly (Legal Affairs Committee), Request for Consultative Status Submitted by "Amnesty International. " Draft Opinion by Mr. Hermod Lannung, Rapporteur, AS/Jur (15)7 (12 August 1963).

(26.) Amnesty International, "Finances and Pay," https://www.amnesty.org/en/about -us/how-were-run/finances-and-pay/, accessed 19 November 2015.

(27.) Amnesty International amended its statute in 2001 to recognize human rights as indivisible and now also campaigns for the realization of economic, social, and cultural rights.

(28.) Caroline Fleay, "Transnational Activism, Amnesty International and Human Rights in China: The Implications of Consistent Civil and Political Rights Framing," International Journal of Human Rights 16, no. 7 (2012): 915-930.

(29.) Ann Marie Clark, Diplomacy of Conscience: Amnesty International and Changing Human Rights Norms (Princeton: Princeton University Press, 2001).

(30.) Amnesty International, "Amnesty International. An Introduction," http://www .amnesty.org.uk/sites/default/files/facilitation_notes_introduction_to_amnesty_in temational_adults_hre.pdf, p. 6, accessed 19 November 2015.

(31.) Clark, "Diplomacy of Conscience."

(32.) Ibid.

(33.) Ibid.

(34.) Frank R. Baumgartner and Bryan D. Jones, Agendas and Instability in American Politics (Chicago: Chicago University Press, 1993), p. 32.

(35.) Parliamentary Assembly (Legal Affairs Committee), Supplementary Memorandum to the Request for Consultative Status Submitted by Amnesty International, AS/Jur (15)10(11 September 1963).

(36.) Parliamentary Assembly (Legal Affairs Committee), Request for Consultative Status Submitted by "Amnesty International. "Draft Opinion by Mr. Hermod Lannung, Rapporteur, AS/Jur (15)7 (12 August 1963).

(37.) Committee of Ministers, Resolution (65)2 on Consultative Status (22 January 1965).

(38.) Tom Buchanan, '"The Truth Will Set You Free': The Making of Amnesty International," Journal of Contemporary History 37, no. 4 (2002): 596.

(39.) Martha Finnemore and Kathryn Sikkink, "International Norm Dynamics and Political Change," International Organization 52, no. 4 (1998): 887-917; Donatella Della Porta and Sidney Tarrow, "Transnational Processes and Social Activism: An Introduction," in Donatella Della Porta and Sidney Tarrow, eds., Transnational Protest and Global Activism (Oxford: Rowman & Littlefield, 2005), pp. 1-17; Hawkins, "Protecting Democracy in Europe and the Americas."

(40.) Trommer and Chari, "The Council of Europe."

(41.) European Committee on Crime Problems, Rapport Sommaire de la reunion du Bureau tenue le 10 aout 1966, DPC/CEPC/B (66)15 (18 October 1966).

(42.) Marc Ancel, The Death Penalty in European Countries: Report (Strasbourg: Council of Europe, 1962).

(43.) Committee of Ministers, Relations with Non-governmental Organisations, CM/12 (52)126 (3 November 1952).

(44.) Committee of Ministers, Relations with International Non-governmental Organisations. Information Memorandum Prepared by the Directorate of Political Affairs, CM (76)183 (12 August 1976).

(45.) Ibid.

(46.) Conference of International Non-governmental Organisations, Note Presented by Amnesty International.

(47.) Amnesty International, Declaration of Stockholm, Conference on the Abolition of the Death Penalty (11 December 1977).

(48.) Amnesty International, Report of the Amnesty International Conference on the Death Penalty, Stockholm, 10-11 December 1977, Doc. AI Index: CDP 02/01/78 (9 August 1978), p. 11.

(49.) Frank R. Baumgartner, Christoffer Green-Pedersen, and Bryan D. Jones, "Comparative Studies of Policy Agendas," Journal of European Public Policy 13, no. 3 (2006): 961.

(50.) Kathryn Sikkink, "Transnational Politics, International Relations Theory, and Human Rights," PS: Political Science and Politics 31, no. 3 (1998): 516-523; Della Porta and Tarrow, "Transnational Processes and Social Activism."

(51.) Conference of European Ministers of Justice, The Question of the Death Penalty. Memorandum Submitted by the Austrian Delegation, CMJ (78)7 (21-22 June 1978).

(52.) Ibid. It is worth noting that Christian Broda was awarded the Council of Europe European Human Rights Prize in 1986 for "an exceptional contribution to the cause of human rights," see Committee of Ministers, Resolution (86) 20 on the Award of the European Rights Prize (27 June 1986).

(53.) Amnesty International, Report of the Amnesty International Conference on the Death Penalty, p. 4.

(54.) Conference of European Ministers of Justice, The Question of the Death Penalty.

(55.) Ibid., pp. 2-3.

(56.) Ibid., p. 1.

(57.) Conference of European Ministers of Justice, Conclusions and Resolutions of the Eleventh Conference, Copenhagen, 21 to 22 June 1978, CMJ (78) Concl (21-22 June 1978).

(58.) Ibid.

(59.) Comite Directeur pour les Droits de l'Homme (Steering Committee on Human Rights), Avis a donner sur la Resolution No. 4 adoptee par IIe Conference des Ministres de la Justice, quant a la peine de mort. Note du Secretariat General preparee par la Direction des Droits de l'Homme, CDDH (79)9 (10 April 1979).

(60.) European Committee on Crime Problems, Opinion on the Death Penalty. Final Activity Report, CM (80)110 (2 April 1980).

(61.) Parliamentary Assembly (Legal Affairs Committee), Abolition of the Death Penalty, Memorandum Submitted by Amnesty International, AS/Jur (31)12 (14 September 1979).

(62.) Conference of International Non-governmental Organisations, Abolition of the Death Penalty. Document Prepared by Amnesty International, 28 January 1980. H/ONG (80)4 (31 January 1980), emphasis added.

(63.) Parliamentary Affairs (Legal Affairs Committee), Abolition of the Death Penalty, Memorandum Submitted by Amnesty International.

(64.) Ibid., p. 3.

(65.) Ibid., p. 4.

(66.) Conference of International Non-governmental Organisations, Abolition of the Death Penalty. Document Prepared by Amnesty International, p. 2.

(67.) Parliamentary Assembly, Report on the Abolition of Capital Punishment (Rapporteur: Mr. Lidbom).

(68.) Sell and Prakash, "Using Ideas Strategically," p. 149.

(69.) See Tallberg et al., The Opening Up of International Organizations.

(70.) Comite Europeen pour les Problemes Criminels (ECCP) and Comite Directeur pour les Droits de l'Homme (Steering Committee on Human Rights), La peine de mort. Note du Secretariat General preparee par la Direction des Affaires Juridiques et part la Direction de Droits de l'Homme, CEPC-BU (80)12/CDDH-BU (80)8 (13 November 1980).

(71.) Committee of Ministers, The Death Penalty. Secretariat Memorandum Prepared by the Directorate of Political Affairs and the Directorate of Legal Affairs, Appendix VII, CM (80) 257 (22 October 1980)--insertions in original.

(72.) Committee of Ministers Deputies, Conclusions, Concl. (81)337 (21-25 September 1981).

(73.) Joachim, Reinalda, and Verbeek, "International Organizations and Implementation."

(74.) Amnesty International, Death Penalty Dossiers. A Guide for Groups, ACT 52/01/85 (July 1985).

(75.) Conference of European Ministers of Justice, Conclusions and Resolutions of the 12th Conference, Luxembourg 20-21 May 1980. Appendix III: Resolution No. 4 on the Death Penalty, MJU-12 (80) Concl (17 July 1980).

(76.) European Parliament, Resolution on the Abolition of the Death Penalty and the Accession to the Sixth Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms (17 January 1986).

(77.) Austria, Denmark, France, Germany, Iceland, Italy, Luxembourg, the Netherlands, Norway, Portugal, Spain, Sweden, and Switzerland.

(78.) The Council of Europe European Commissioner on Human Rights and the Parliamentary Assembly exercise diplomatic oversight.

(79.) Abdelsalam A. Mohamed, "Individual and NGO Participation in Human Rights Litigation Before the African Court of Human and People's Rights: Lessons from the European and Inter-American Courts of Human Rights," Journal of African Law 43, no. 2 (1999): 201-213; Ludovic Hennebel, "Le role des amici curiae devant la cour europeenne des droits de l'homme," Revue Trimestrielle des Droits de l'Homme 71 (2007): 641-668; Laura Van Den Eynde, "An Empirical Look at the Amicus Curiae Practice of Human Rights NGOs Before the European Court of Human Rights," Netherlands Human Rights Quarterly 31, no. 3 (2013): 271-313.

(80.) Van Den Eynde, "An Empirical Look at the Amicus Curiae Practice of Human Rights NGOs."

(81.) Ibid.

(82.) Ibid.

(83.) Ibid, p. 275.

(84.) Soering v. United Kingdom, (1989) 11 EHRR439 (7 July 1989).

(85.) Deweer v. Belgium, (1980) 2 EHRR 439 (27 February 1980), par. 53.

(86.) Austria, Belgium, Denmark, Finland, France, Germany, Greece, Iceland, Italy, Luxembourg, the Netherlands, Norway, Portugal, San Marino, Spain, Sweden, and Switzerland. In turn, Cyprus, Liechtenstein, Ireland, Malta, Turkey, and the United Kingdom signed Protocol No. 6 after 1989.

(87.) Austria, Denmark, France, Germany, Iceland, Italy, Luxembourg, the Netherlands, Norway, Portugal, San Marino, Spain, Sweden, and Switzerland. In turn, Belgium, Cyprus, Finland, Greece, Liechtenstein, Ireland, Malta, Turkey, and the United Kingdom ratified Protocol No. 6 after 1989.

(88.) Amnesty International, Comments Submitted to the European Court of Human Rights on the Soering Case (1/1989/161/217) (12 April 1989).

(89.) Ibid., pp. 3-4.

(90.) Ibid., p. 6.

(91.) Soering v. United Kingdom, par. 101.

(92.) Ibid., par. 102.

(93.) Ibid.

(94.) Ibid., par. 104.

(95.) Amnesty International tends to intervene with respect to the following ECHR guarantees: right to life (Article 2), prohibition of torture (Article 3), right to liberty and security of the person (Article 5), right to a fair trial (Article 6), and right to respect for private and family life (Article 8).

(96.) Van Den Eynde, "An Empirical Look at the Amicus Curiae Practice of Human Rights NGOs."

(97.) Al-Saadoon and Mufdhi v. the United Kingdom, par. 115.

(98.) Jon Yorke, "Inhuman Punishment and the Abolition of the Death Penalty in the Council of Europe," European Public Law 13, no. 3 (2010): 77--104.

(99.) Ancel, The Death Penalty in European Countries; Parliamentary Assembly, Commission des questions juridiques, Pour l 'abolition de la peine de mort--note presentee par M. Lidgard rapporteur.

(100.) Conference of International Non-governmental Organisations, Abolition of the Death Penalty. Document Prepared by Amnesty International.

(101.) Amnesty International, Report of the Amnesty International Conference on the Death Penalty, pp. 10-11.

(102.) Other seminal cases include: Ocalan v. Turkey, 12 May 2005 [GC], ECHR 2005-IV; and Al-Saadoon and Mufdhi v. the United Kingdom.