Belarus is an outlier, as the last European state to maintain the death penalty. And, with a recent amendment, they’re doubling down.
In 1997, the last person to be sentenced to death and executed in Europe met their end in Ukraine. For Belarus, keen to join the Council of Europe for alliance-building and legitimacy in the region, its retention of the death penalty remains the biggest obstacle to being fully embraced by its neighbours.
Now, Belarusian President Alexander Lukashenko’s May 2022 intervention to amend the country’s Criminal Code and expand the application of the death penalty to include those found guilty of “attempting an act of terrorism” has alarmed human rights organisations.
In itself, it was a legal overreach, but Amnesty International also fears the amendment’s design and timing could allow the law to become a mallet to bludgeon political dissent — particularly the activism against Belarus’ involvement in Russia’s invasion of Ukraine.
Although Belarus is not an official party to the conflict, it has provided Russia with access to its borders, hospitals and logistics networks. Activist groups in Belarus such as BYPOL, who allegedly attempted to disrupt transportation of Russian weaponry and military personnel to Ukraine in the so-called ‘railway war’, have drawn the government’s ire.
Belarus remains the only state in Europe and Central Asia that still uses the death penalty. The death penalty has been a part of the Belarusian criminal justice system since the country gained independence from the Soviet Union in 1991, but was limited to “especially grave crimes” such as genocide, terrorism, crimes against humanity, and murder committed in aggravating circumstances.
With the amendment, “attempting an act of terrorism” is the 14th crime that can attract the death penalty. Until now, Belarus’ Criminal Code had prevented the death sentence being applied to acts classified as “preparation for a crime” or an “attempted crime”.
Determining how many offenders are sentenced to death and subsequently executed in Belarus is difficult to assess. Between 1994 and 2014, 245 people were officially sentenced to death. Human rights NGOs International Federation for Human Rights and Viasna believe the true number of executions is “largely under-reported and unknown,” owing to Belarus’ “regular execution of people on the basis of unfair trials and in an atmosphere of total secrecy”.
But invoking the death penalty is more than a theoretical or remote possibility.
The International Federation for Human Rights and Viasna estimate that, since 1991, “over 300 people have been sentenced to death and about 400 have been executed”. This odd discrepancy could be explained by the fact that upon gaining independence, Belarus executed offenders who had been sentenced to death by the Soviet Union before 1991.
Domestically, Belarus maintains a strong commitment to retaining the death penalty. But in its dialogue with international organisations and foreign states, Belarus has at times adopted a different tack — showing some openness to law reform in pursuit of improved international standing.
Belarus has sought to be a full member of the Council of Europe since first applying in 1993. The Council of Europe is an international organisation concerned with upholding “human rights, democracy and the rule of law” in the region and boasts 46 member states. For Belarus, joining the Council of Europe would be another step towards legitimacy.
But the Council’s commitment to abolishing the death penalty in the region is a longstanding priority area: it introduced “the first legally-binding instrument abolishing the death penalty in peacetime” in 1982, which was ratified by all current member states. Seven years later, the Council made the abolition of the death penalty a condition of accession for all new member states. Finally, in 2002, the Council of Europe introduced Protocol No 13, requiring all members to maintain complete abolition of capital punishment, including in times of war.
Following Belarus’ unsuccessful application to the Council of Europe in 1993, it was provided ‘special guest status’ to the Parliamentary Assembly. This was subsequently suspended in 1996 after a Belarusian referendum saw the death penalty upheld and other democratic freedoms limited.
In 2009, the Parliamentary Assembly of the Council of Europe suggested Belarus could regain its special guest status if the government would impose a moratorium on the death penalty. In 2010, a Belarusian parliamentary working group was formed to investigate problems associated with the death penalty.
At the time, then-Chairman of the Commission on Foreign Affairs Mikalai Samaseika put forward a pathway to restore the special guest status of Belarus to the Parliamentary Assembly. It was said this pathway to restoration could facilitate “a more effective parliamentary diplomacy in promoting national interests and developing bilateral contacts”. However, the working group failed to file a report into its findings by the end of the government’s term.
To date, Belarus remains outside the Council of Europe and is the last European state not only using the death penalty, but with these recent amendments, expanding its application. The hardening of capital punishment means Belarus now appears further from abolishing the death penalty than it ever has been, but with a renewed geopolitical focus on alliance-building, opportunities to influence remain.
If Belarus is to join its European neighbours in outlawing the death penalty, it may be through deft negotiation and enticement from the countries and institutions that have shunned it to date.
Natalia Antolak-Saper is a Senior Lecturer in the Faculty of Law, Monash University.