Progress towards Death Penalty Abolition is Slow but Steady

On 5 October 2016, The Hague Institute and Doughty Street International hosted the third instalment of their lecture series ‘International Justice in Practice’. This event was organized with support from the Slovak Embassy, and centered on the tensions between the death penalty and international law. Hague Institute Distinguished Fellow Nikola Dimitrov gave the opening remarks, and the panel discussion was moderated by senior researcher Dr. Aaron Matta.

The first expert to speak was Edward Fitzgerald, joint head of Doughty Street Chambers, who has extensive experience with death penalty cases around the world. He sees that the incompatibility of the death penalty with human rights is widely acknowledged, but actively challenging the death penalty in retentionist states remains problematic. Article 6(2) of the International Covenant on Civil and Political Rights makes challenges to capital punishment based on human rights arguments difficult. The death penalty thus “must be attacked laterally,” according to Fitzgerald, for example by focusing on the method of execution as cruel and inhuman rather than the lawfulness of the death penalty itself.

Sadakat Kadri, author and barrister at Doughty Street Chambers, has written extensively on Sharia Law, and on this panel commented on the mandatory death penalty. The mandatory death penalty is largely found in common law jurisdictions, former colonies that inherited their legal systems from Britain before mandatory capital punishment for murder convictions was abolished, and in Muslim-majority countries. In these countries, said Kadri, Islam is often used as justification for the imposition of the death penalty, even in response to specific offenses for which the Koran does not explicitly prescribe it. Although the principle of “an eye for an eye” can be invoked by the victim’s next of kin, and hadiths do justify the death penalty, the Koran itself encourages forgiveness. Additionally, Kadri pointed out that there is not one single version of Sharia law that is applied consistently across the Muslim world.

Professor Jennifer Trahan, Associate Professor at NYU, elaborated on the linkage between the death penalty and the International Criminal Court (ICC). The admissibility of cases at the ICC depends largely on the complementarity principle outlined in article 17 of the Rome Statute, which states that cases are inadmissible unless countries are unwilling or unable to carry out the investigation or prosecution.

Providing the example of Abdallah al-Senussi, Professor Trahan argued that situations where states are “all too willing” to try an individual should also be taken into account by the ICC. The ICC must act in accordance with human rights, and the fact that the ICC would send someone to be tried in a state that is likely to impose the death penalty is therefore problematic. Currently the ICC will only take on a case if a domestic trial completely lacks any due process. This is too strict a condition, according to Professor Trahan, considering even some very flawed trials might not meet this standard but could still result in the arbitrary application of the death penalty.

To adequately redress the linkage between the ICC and executions, in the long term, Professor Trahan is of the opinion that the Rome Statute should be amended. Until this is feasible, however, a temporary solution would be for the Assembly of States Parties of the Court to adopt the policy to consistently request diplomatic assurances that the death penalty will not be imposed. A third alternative is to have judicial panels or other ad hoc processes decide on a case-by-case basis.

Maya Foa, Director of Reprieve’s Death Penalty team, is involved in efforts to challenge the death penalty in, amongst others, the United States. She explained how Reprieve has worked to undermine the supply chain of lethal injection drugs by (successfully) arguing for export controls in the EU. Ms. Foa showed that, even where the death penalty is unlikely to be abolished, significant progress can still be made by combating capital punishment from a different, more pragmatic, angle.

Mr. Fitzgerald added that political pressure can be applied to the same effect. Citing cases from Asia, he explained how “regional, emphatic and economic” pressure can be effective where legal avenues have failed. “You always have to marry the political and the legal,” Ms. Foa agreed. The death penalty is often used as a political tool, e.g. in Saudi Arabia, and UN reports and public attention for these kinds of practices can convince other countries to raise the political cost for a regime carrying out these sentences. Mr. Fitzgerald also added, citing an example from Trinidad and Tobago, that he was of the opinion that applying the death penalty in cases involving mentally challenged individuals is against customary international law and perhaps even ius cogens.

Finally, there are other tactics in addition to the non-extradition principles referenced by Professor Trahan. Ms. Foa argued that cooperation with retentionist states on counter-narcotics operations is a prime example of how abolitionist countries take on some of the responsibility for death sentences, as the number of arrests is related to the number of death sentences in those cases. Abolitionist states can find the leverage to challenge the death penalty if they refuse to accept any complicity in executions abroad.

In spite of the recent spike in executions, acceptance of the death penalty is slowly in decline. 2015 saw the highest number of people executed since 1989, yet the majority of executions took place in just three countries. The expert panel did not predict an end to the struggle in the short term, but the global trend moves steadily towards abolition. According to Mr. Fitzgerald, “It’s just a matter of time.”

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