The legality of the death penalty under international law

On Wednesday, April 29th, seven foreign drug smugglers,  Australian nationals Myuran Sukumaran and Andrew Chan, Brazilian Rodrigo Gularte, Nigerians Sylvester Obiekwe Nwolise, Raheem Agbaje Salami, Okwudili Oyatanze, and Ghanaian Martin Anderson, were executed in Indonesia, which caused outrage across all the prisoners’ home states. The states tried to plea for clemency but were not heard by Indonesia which claimed that they need to solve the drug problem in the country and must end this war on drugs once and for all. Australian Prime Minister said, “We respect Indonesia’s sovereignty but we do deplore what’s been done and this cannot be simply business as usual.” Brazil and the Netherlands have recalled their ambassadors since the executions in Indonesia earlier this year.

The question to ask here is whether Indonesia has the right to execute these foreigners under International Law. Firstly, the death penalty is not prohibited under article 6 of the International Covenant on Civil and Political Rights (ICCPR), which says “that it can only be imposed for the most serious crimes and cannot be imposed if ;

  • a fair trial has not been granted, other ICCPR rights have been violated,
  • the crime was not punishable by the death penalty at the time it was committed,
  • the offender is not entitled to seek pardon or a lesser sentence, the offender is under the age of 18,
  • the offender is pregnant.”

The  UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions claimed that the death penalty should be eliminated for drug-related offences, but not all states complied with this, among them Indonesia, because they do not take the death penalty to be the biggest problem they face. They take it to be a solution to the drug problem in the country. They want to be able to get rid of the drug smugglers throughout the country. They even have many more drug smugglers on death row and many of them are also foreigners.

The Death Penalty should be completely abolished from every state around the world. Even though 133 states finally agreed to abolish the death penalty, there are still many states that have death penalties in force. The UN is trying to push all these states to completely abolish the death penalty because they believe it is against human rights, particularly the right to life. No person deserves to have their life taken away from them. The biggest problem with the death penalty is that many people are convicted and executed, only later to be found innocent. Therefore the UN has been creating resolutions  to abolish the death sentence, they could be imprisoned for life but should not be executed.

Even the EU only allows states to become members if they abolish the death penalty because they want this practice to end all around the world so the least they could do for the time-being is prevent it from happening  in the member states.

The other problem that the death penalty could cause is conflicts between two states, for example Indonesia and Australia. Once Indonesia executed the two Australian nationals, Australia was outraged and felt that this could affect their future relations. Because the two states have trade relations, once the Prime Minister of Australia’s pleas for clemency for the two Australian citizens were ignored, he said “I want to stress that this is a very important relationship between Australia and Indonesia but it has suffered as a result of what’s been done over the last few hours.” Australia was put in a very difficult position because they cannot do much other than recall their ambassador to return until deciding what to do next. The tension could escalate if both states are not careful.

Many states are against the death penalty and have stopped this practice, because they believe that imposing the death penalty is a violation to the right to life. But the difference between these states and Indonesia is that Indonesia is a Muslim country and it follows the Islamic Shariaa. Under the Shariaa the death penalty is permitted. According to one view, known as the cultural relativist view, if a state abides by a certain religion, the international community should not intervene in such a case because each state has its own sovereignty. But what the UN is trying to call for, is to make the death penalty a universal violation of human rights.

Another view argues that Indonesia’s death penalty is illegal because Indonesia has been a party to the ICCPR ever since 1966. Under article 10 of the ICCPR, states may only impose the death penalty for the “most serious crimes” and drug smuggling does not seem to fulfill this description. Therefore Indonesia has breached the treaty. Indonesia is also a party to the Convention on Narcotic Drugs which states in Article 36(1) that any sort of drug smuggling or action in contravention of the Convention shall be punished by imprisonment or any penalties of deprivation of liberty . This alone proves that Indonesia has breached two different treaties and that executing the seven foreigners was illegal.

In conclusion, Indonesia has been criticized by various parties. The first view pointed out several reasons why international treaties were breached by Indonesia, while the other view argues that Indonesia has sovereignty and should be capable of following its own law without international intervention. As a party to a treaty Indonesia must abide by its international obligations and change its domestic laws accordingly.

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3 Responses to The legality of the death penalty under international law

  1. shazaelewa says:

    There are a group of activists who call for prohibiting the death penalty in Egypt by the way. As for your blog, I believe what Indonesia did was really strange! Indonesia could have just sent them back to their countries. Since that person is not a citizen of Indonesia, then he might not know the laws of this countries, simply trading in drugs can be legal in other countries. Another point is that it is not only about sovereignty, It is also about Human Rights as you said. Sovereignty is a concept that can be changed in the future for any reason, it is just a political theory that can be updated or developed, but Human Rights is a concept that is bound to human existence.

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  2. engyadham101 says:

    This kind of conflict is very expected in a legal environment that is general, loose and not precise. Although there are mechanisms to regulate the relation and function of local laws in relevance to international treaties and UN covenants, power struggle may take the lead. There is an ongoing debate in the politics of human rights addressing universality and cultural rights. The UN covenants for civil, political, economic and cultural rights aim at spreading the universal principles of human rights. Simultaneously, they left space for adding reservations to protect the cultural fabric of a society. To sustain the purpose of the treaty, they made sure this reservation doe not violate the core and purpose of the treaty. Although the death penalty is prohibited under the ICCPR, Shari’a law violates the core of the treaty, so who rules then? I believe that the executing the Australian drug smugglers is a violation and Indonesia should be held accountable to that act. Coming from a different nationality, they shouldn’t be subject to the local laws of Indonesia for many reasons. First, they are not Indonesian and he crime of drug smuggling doesn’t fulfill the exceptions of Article 6 of the ICCPR, which Indonesia signed.

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  3. yasminehafez says:

    The domestic law overcomes the international law. So, in this case, Indonesia would be entitled to apply the death penalty to Australians.
    However, from the other side, I believe that human rights activists should pressure the state to stop this practice and use the treaties and conventions that Indonesia had used.

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