THE DEATH PENALTY AND INTERNATIONAL LAW:
A CASE OF CONFLICT TRANSFORMATION THROUGH KNOWLEDGE
By
Simon P. Smith
Abstract
Understanding the deeper systematic issues behind a conflict is the crucial first step in
transforming it… Conflict over extradition treaties between the US and its allies is a symptom of
a larger conflict over the US’s refusal to abide by international human rights norms in regard to
the death penalty. Trends in both international law and practice reveal that abolition of the death
penalty to be both an international norm and human rights issue. Conflict over extradition’s can
only be solved by understanding deeper issue of the US’s refusal to abide by norms regarding the
death penalty. Only abolition can solve the deeper issue behind extradition conflict.
Introduction
The United States current death penalty policy puts it in conflict with most of its traditional
allies. To date, that conflict has manifested itself in the area of extradition conflict. Countries
without the death penalty1 have refused to extradite criminals to the United States unless they
receive assurances that the defendant will not be subjected to capital punishment. In turn, the
United States has consistently agreed not to seek the death penalty in cases involving extradition.
However, this uneasy truce does little to solve the underlying conflict. The death penalty is a far
deeper issue than extradition treaties and law. Rather, it is symbolic of the United State’s refusal
to abide by international law and norms. It my goal in this paper to argue for a transformation of
the conflict as an example of conflict transformation, to look at the conflict in the terms of a the
United State’s broader refusal to abide by international norms. Only once the deeper conflict is
understood can it be transformed. Understanding a conflict is the crucial first step in
transforming it. To this end, relevant international law will be examined, trends in international
1
The entire European Union, Mexico, et cetera.
2
norms will be analyzed, extradition examined, and finally, an argument for a way to solve the
fundamental root of the conflict will be introduced.
On November 20th 2008 the United Nations Human Rights committee2 voted 105-48 in
favor of a non-binding resolution urging the abolition of the death penalty.3 Pressure has steadily
grown on the United States since the advent of international human rights law to abolish the
death penalty. Support has grown steadily as international legal norms pertaining to human rights
have evolved. In 2007, only last year, a similar resolution passed by a slightly lower vote of 10458.4 In the 1990’s comparable resolutions failed to pass the General Assembly5 yet in 2007 and
2008 enjoyed majority support in the General Assembly. The United States meanwhile has
retained the death penalty since World War II and continues to utilize it at a rate high enough to
place in the rankings in terms of executions per year.6
The United State’s policy on the death penalty, which is to essentially ignore most
international norms and treaty obligations, places it into an odd group of nations for the US to be
aligned with. The top five nations in terms of executions per year are China, Iran, Saudi Arabia,
Pakistan and the United States.7 A truly unusual top five for the US to be in considering it is the
only consolidated democracy in the group, not to mention the lack of respect for human rights in
the other four countries. As Wyman writes “With the exception of Japan, however, the United
2
While this does not represent the final vote, all members of the UN GA did have the
opportunity to vote on the action of the committee in approving the resolution for a vote in the
General Assembly.
3
John Heilprin. “UN vote shows growing support of death penalty ban” The Associated Press.
November 21st 2008.
4
Daniel Bases. “UN Assembly calls for moratorium on the Death Penalty” Reuters. December
19th 2007.
5
Heliprin, Ibid.
6
Amnesty International. “Death Sentences and Executions in 2007” Amnesty International.
Website [amnesty.org] April 15th 2008. Accessed Nov. 20th 2008.
7
Amnesty International, Ibid.
3
States is the only well-established democracy that has not abolished the death penalty either de
facto or de jure.8” This isolationist policy has created conflict with many of our closest allies,
allies with which we share our paradigm of values and goals. 9 Under ever increasing pressure
from some of our closest allies, it is time for the US to rethink it’s policy in regards to capital
punishment. The United States must abolish the death penalty in order to truly resolve its conflict
with its allies around the world.
Trends in Relevant International Law
It is particularly important to examine relevant international law in regards to the death penalty
due to the gradual evolution of international laws since the advent of human rights law. A
systematic examination will reveal that international law has gradually emphasized the abolition
of the death penalty with stronger and stronger overtones over time, eventually concluding that
abolition has become a norm by both practice and evolution. While this cannot be a completely
exhaustive review of all applicable law due to space constraints, it does review most important
applicable laws and regional systems applying to the death penalty.
Universal Declaration of Human Rights
The United Nation’s Universal Declaration of Human Rights (UDHR), adopted December 10th
1948, established that “everyone has the right to life, liberty, and the security of person. 10”
While the resolution is non-binding it is seen as a “common standard of achievement” or set of
James H. Wyman. “Vengeance is Whose?: The Death Penalty and Cultural Relativism in
International Law” 6 Journal of Transnational Law and Policy, 543. Summer of 1997.
9
William A. Schabas. “Lead Article: International Law, the United States of America and
Capital Punishment.” 31st Suffolk Transnational Law Review. 377. Symposium, 2008.
10
Universal Declaration of Human Rights, United Nations General Assembly Resolution 217A
(III) December 10th 1948.
8
4
goals for humanity.11 In the drafting stages, Eleanor Roosevelt and V. Kortesky12 both
recognized the trend of abolition in regards to the death penalty, and suggested any exception to
the right to life be left out.13 At the time of the declarations drafting, the exception for the death
penalty was widely excepted, yet by its exclusion from the document we infer that the eventual
abolition of the death penalty was a goal of international community. 14 Further evidence can be
found in the subsequent human rights documents that followed the UDHR and lent further
relevance to it.15 While the UDHR in no way abolished, or even gave the pretense of abolishing,
the death penalty, it did set the foundation for most future human rights law and the future
evolution of abolition as a international norm, especially in democracies that respect human
rights.
International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights (ICCPR)16 is the result of the UDHR.
Designed to afford individuals with clearly defined rights, it does explicitly address the issue of
capital punishment in Article 6. While some states pushed for abolition as part of the covenant a
compromise was eventually struck whereby abolitionist language was included in Paragraphs 2
and 6 of Article 6.17 Article 6 of the ICCPR dealt specifically with the death penalty and most
notably established that “Every human being has the inherent right to life. This right shall be
Anthony N. Bishop. “The Death Penalty in the United States: An International Human Rights
Perspective.” 43rd South Texas Law Review, 1115. Fall 2002.
12
Soviet representative
13
Wyman, Ibid
14
Wyman, Ibid.
15
William A. Schabas. “Abolition of the Death Penalty in International Law.” (Cambridge
University Press, 2002) p. 43.
16
International Covenant on Civil and Political Rights, UN General Assembly Resolution 2200A
(XXI), passed December 16th 1966 and entered into force on the 23rd of March 1976.
17
Wyman, Ibid. 2
11
5
protected by law. No one shall be arbitrarily deprived of his life. 18” Article 6 also included
provisions banning execution of those under 18 or those with child.19 Article 6 allows the death
penalty for only the most serious offenses and necessitates the sentencing from a court, and the
possibility of pardon or commutation2021. Article 7 of the ICCPR prohibits individuals being
subjected to “torture or to cruel, inhuman or degrading treatment or punishment.22"
ICCPR is
particularly important, as it was the first such document to recognize the death penalty as a
human rights issue. Incidentally, special UN rapporteur Bacre Waly Ndiaye condemned the US
after a two-week investigation for making reservations to the extent that the US’s signing of the
ICCPR was “incompatible” with the treaty.23
In 1989, in the UN definitely put forth its
abolitionist policy with the Second Option Protocol to the International on Civil and Political
Rights aimed at the abolition of the death penalty, which definitively abolishes the death penalty
in all parties to the protocol, although signing it is optional, an option the US exercise. 24 As of
September 29th 2008 the Second Protocol has 68 state parties.25 In summery, the ICCPR is draws
its significance to the issue of death penalty as it was the international law document to explicitly
recognize the death penalty as a human rights issue, the first to restrict it, and the first to allow
states to agree to abolish it as part of international law by signing the second Protocol.
Organization of American States
18
ICCPR, Ibid. Article 6 paragraph 1.
ICCPR, Ibid, Article 6 paragraph 5.
20
The UN Economic and Social Council resolution 1984/50 “Safeguards guaranteeing protection
of the rights of those facing the death penalty” somewhat redundantly re-stated the rights found
in the ICCPR. It serves best as a summary list.
21
ICCPR, Ibid, Article 6, paragraphs 2 and 4.
22
ICCPR, Ibid, Article 7
23
William A. Schabas. “Lead Article: International Law” Ibid. 394
24
Wyman, Ibid.
25
Office of the United Nations High Commissioner for Human Rights, Second Optional Protocol
to the ICCPR. Ratification Status Page.
< http://www2.ohchr.org/english/bodies/ratification/12.htm>
19
6
The Organization of American States, the first regional human rights system, was established in
1948.26 The American Declaration of the Rights and Duties of Man was adopted as part of the
charter of the OAS in 1948 as well, and predates the similar UN declaration by a few months.27
Article 1 of the American Declaration of the Rights and Duties of Man, establishes the right
every human has the right to life, liberty, and security of person. In 1960 the Inter-American
Commission on Human Rights was established.28 The US is a party to the OAS charter and thus
subject to the Commission. In 1969 the OAS adopted a Convention modeled closely after the
ICCPR. The American Convention on Human Rights, adopted in 1969, is similar to the ICCPR
in nature as it recognizes the death penalty as a human rights issue, prohibits the execution of
minors among others, establishes guidelines for application, and bans abolitionist nations from
re-adopting the death penalty.29 In order to affirm the eventual goal and intent of the Convention
in a concrete manner the Additional Protocol to the American Convention on Human Rights to
Abolish the Death Penalty was opened for signatures on June 8th 1990,30 the Protocol explicitly
sought the abolition of the death penalty in any state that signed it. The US is neither a ratified
party to the American Convention or the Second Protocol.31 The US has signed the Convention32
but has not ratified it. According to the Vienna Convention states that have signed a treaty
without ratifying it are still responsible to the intents and purposes of the treaty, although,
because it has not ratified the American Convention the US is not under the jurisdiction of the
26
Bishob, Ibid. p 11
The Declaration, as part of the charter, was originally non-binding. In 1969 however the
charter was amended to increase the clout of the Declaration by making it legally binding.
28
Richard J. Wilson. “International Law in Death Penalty Defense” 31st Hofstra Law Review n.
1195, Summer 2003
29
Bishop, Ibid. p 11.
30
Bishop, Ibid, p 11.
31
Countries, for example as Canada has contemplated it in the past, can be a party to only the
Additional Protocol, and not the entire American convention.
32
Jimmy Carter signed the Convention in 1977
27
7
Inter-American Court on Human Rights.33 It is a contradiction and deep flaw that the United
States, a champion of human rights,34 is not a party to the principle human rights system in the
Western Hemisphere. In comparison, throughout most of the America’s the use of the death
penalty has been abolished either de facto or de jure.35
The European System
The unanimous trend in Europe is abolition, a trend reflected in the Human Rights law specific
to Europe.36 Abolition of the death penalty in a state has become a l membership requirement for
both the Council of Europe and the European Union.37 Protocol 6 of the European Convention
for the Protection of Human Rights and Fundamental Freedoms, Concerning the Abolition of the
Death Penalty is a foremost document in regards to the abolition of the death penalty in Europe.
The protocol bans the death penalty for any crime except during times of war. 38 A united
European front against the United State’s stance on the death penalty, as a human rights issue,
could be particularly worrisome as the European Union grows in both economic and military
strength.
Trends in Practice
As treaties and practice relating to human rights have evolved since World War II the overall
trend in regards to the death penalty is abolition. Approximately two thirds of states have
Schabas “Lead Article: International Law” p 13
For example, the US has used human rights issues (among others) to justify military action,
such at Operation Iraqi Freedom
35
Amnesty International. “Abolitionist and Retentionist Countries”
<http://www.amnesty.org/en/death-penalty/abolitionist-and-retentionist-countries>
Accessed November 22nd 2008.
36
Roger Hood. “Capital Punishment: A global perspective” Punishment and Society, 2001; 3;
331. All Souls College, University of Oxford. p. 331
37
Schabas, “Abolition of the Death Penalty in International Law” p. 308
38
Rebecca Trail. “The Future of Capital Punishment in the United States: Effects of the
International Trends Towards the Abolition of the Death Penalty.” 26th Suffolk Transnational
Law Review 105, Winter 2002.
33
34
8
abolished the death penalty, and more important the trend is positive in the direction of abolition
and has not expanded in use significantly.39 Europe and the America’s have almost completely
ceased using the death penalty with the exception of a few states, the most crucial being the US,
and Africa has leaned towards abolition as well.40 The strongest indicator of an international
trend towards abolition is the sheer number of countries that have abolished it either de facto or
de jure, 137, as compared to those who retain it, 6041. Furthermore, only 24 states carried out
executions in 2007.42 Interestingly, with the exception of Japan and the US the other twenty-two
countries that executed defendants are known to have a low regard for human rights as well as
being mostly Muslim. As the analysis of current international law in regards to the death penalty
exhibited, international law norms have also evolved towards abolition as a majority of states
have followed suit in practice and have ceased using the death penalty. 43 Trail wrote, “The
United States must realize that the world has shifted its view on the death penalty, and the United
States must conform to that view because its position as a world power could be affected by its
stance on capital punishment.44” This trend has had an effect on US diplomatic efforts, leaving
the US in conflict with some of the nations most closely aligned with out values and goals. 45 The
US stands very isolated as a democracy in claiming that the death penalty does violate
international norms.
Legitimacy as a Moral Leader
Closely related to the growing trend towards abolition is the United States position in the
39
Wilson, Ibid. p 6
Bishop, Ibid p 13
41
Amnesty International, Ibid “Abolitionist and Rententionist Countries”
42
Amnesty International, Ibid “Death Penalty: Death Sentences and Executions in 2007”
43
Bishop, Ibid, p 4
44
Trail, Ibid p. 4
45
Schabas. “Lead Article: International Law” p 17
40
9
international system as a moral leader and proponent of Human Rights. The US has a long
standing history of defending and advocating human rights dating back to our Constitution, yet
our current policy puts us in the company not of like minded democracies but tyrants renowned
for human rights abuses.46 The US is not a party, sans reservations, to any major human rights
treaty. Roth argues “As other governments increasingly see through this [isolationist policy
regarding human rights law] short-sighted view of international human rights law, it weakens
America’s voice as the principled defender of human rights around the world and diminishes
American’s moral influence and stature.47” The use could very well jeopardize its status as a
world power in regards to its place in the international system if it continues its isolationist
policy in regards to human rights law.48 Other countries base their perceived exemptions from
international human rights law on the United State’s decision to exempt itself.49 It is tragic when
the United States find’s its closest allies on an issue international law only those from the Arab
world of shari’a law and tyrannical regimes, but it is irreprehensible for the United State’s policy
to give those nations an argument for their disregard of international human rights law and
norms. The United States attitude has decreased our support on the international scene as well.50
The US approach is best characterized as a “a la carte” approach – an approach other
governments are tiring of.51 The United States cannot continue to preach the universal
importance of human rights, and use them to justify actions and condemn others while excluding
46
China, Syria, Saudi Arabia, Iran, North Korea, Egypt to name a few.
Kenneth Roth. “AEI Conference Trends in Global Governance: Do they Threaten American
Sovereignty?” Chicago Journal of International Law 347, Fall 2000
48
Trail, Ibid.
49
Roger Hood. “Capital Punishment: A global perspective” Punishment and Society, 2001; 3;
331. All Souls College, University of Oxford. p. 343
50
Roth. Ibid. In March 200 the US government received a weak response to its desire to pass a
resolution condemning China’s human rights record due to inconsistent US policy on
international human rights laws.
51
Roth, Ibid.
47
10
ourselves of any responsibility under international human rights law in regards to the death
penalty.
The European Angle
As discussed earlier, the European community, including both the Council of Europe and the
European Union oppose the death penalty. Trail notes “Walter Schwimmer identified the United
States over an third world nation as the Council of Europe’s ‘greatest concern’ for human rights
violations.52” Likewise, the European Union began its drive53 to abolish the death penalty
worldwide in 1999 and aimed its sights squarely at the United States.54 The European Union will
only continue to grow in both economic and political strength. The possibility that the European
Union could level sanctions against those who fail to abide by international human rights norms
is certainly conceivable as their economic power grows.55 The European Union, unlike any
single nation which values human rights, is hypothetically capable of standing up to the United
States if the United States fails to comply with a ruling of the International Court of Justice. 56 It
is important to recognize why the presence of the EU is important. The European Union is by no
means the first entity, nation state or regional system, to oppose the United State’s stance on the
death penalty, rather it may well be the first to become strong enough to force some kind of
change from the United States. In order for the United States to retain its position as the worlds
superpower, it would be more beneficial to at least seem to make the decision on our own to
comply with the international norms rather than waiting to be forced and in doing so lose face.
52
Trail, Ibid p. 1
While it is pure speculation, it could be that the EU is attempting to size up its own power and
clout in the international system by picking a issue to challenge the US with.
54
Trail, Ibid p. 1
55
Especially in light of the recent US economic woes in comparison to the smaller shock
absorbed by the EU countries.
56
Trail, Ibid p 5
53
11
Extradition and Consular Relations
Conflicts over extradition began are a symptom of the United States violation of evolved
international legal norms. Extradition, in comparison to previous issues discussed is largely
technical and symbolic in nature. Rather than being an actual issue it is a symptom of a larger
issue of the United State’s failure to abide by international norms. Since our allies, and the world
at large, are currently incapable of directly challenging the United States on the issue, they object
in a manner symptomatic of the larger problem. The death penalty has become a constant
obstacle in our ability to seek extraditions of criminals wanted in the United States to the United
States to be prosecuted. The conflict over extraditions started in in 1989 with Soering v. United
Kingdom in which the European Court on Human Rights ruled that the UK could not extradite
the defendant to the United States unless it received sufficient assurances that the death penalty
would not be sought57. Henceforth, member nations of the European Union have refused to
extradite defendants who could face the death penalty without assurances that they will not as the
court finds it a violation of the Protocol 6.58 Extraditions have become an increasingly important
part of enforcing the law as borders have become more fluid with the increased integration of
countries, making it easier for fugitives to cross borders.59 The United States has violated its
obligations under the Vienna Convention on Consular Relations on many occasions. In Beard v.
Green the United States not only denied the defendant of his right to consular notification and
advice but also ignored a stay of execution issued by the International Court of Justice. 60 The
United State’s compliance with the Vienna Convention on the local level is also suspect leading
Daniel J. Sharfstein. “European Courts, American Rights: Extradition and Prison Conditions.”
67 Brooklyn Law Review 719, Spring 2002.
58
Trail, Ibid p. 5
59
Sharfstein, Ibid. p. 3
60
Michael Cokley. “Whatever Happened to that Old Saying “Thou shall Not Kill?”: A plea for
the abolition of the death penalty” 2 Loyola Journal of Public Interest Law 67 Spring, 2001.
57
12
to further complications.61 Consequently, in 1999 the European parliament sharply rebuked the
United States for its lack of compliance with the Vienna Convention on Consular Relations.62
Recently Mexico has refused to extradite not only those facing the death penalty but those facing
life sentences as well.63 A particularly potent illustration of European resolve on extradition is
their refusal to extradite even terrorists, including those involved in 9/11, without assurances that
they would not face the death penalty.64 Continuing conflicts over extradition will only build
further friction in an already heated environment.
Conclusion
The current conflict over extradition is an extraordinary example of the way governments
conflict publicly on a limited issue rather than the more systematic issue at hand. The United
States, one of their first champions of human rights, must reform its death penalty policy towards
more of an abolitionist directed policy in order to resolve the conflict with its allies. If the US is
to retain, or perhaps even reclaim, its place as a champion of human rights and standard-bearer of
such, it must begin to comply with the human rights law and norms it helped establish. The US,
by continuing to execute criminals, isolates itself from its closest allies, complicates extradition
internationally, and loses credibility to condemn other nations for human rights abuses. The US
can ill afford to make enemies out of friends. The European Union, comprised of some of our
closest allies traditionally, will prove to be a force to be reckoned with, both politically and
militarily, if we continue to isolate ourselves on human rights issues by claiming the death
penalty to be an exception. With the US already defending multiple fronts internationally, it
cannot risk isolating itself from some of its closest traditional allies. It is high time for the US to
61
Wilson, Ibid p 1.
Schabas, Ibid. “Lead Article: International Law”
63
Wilson, Ibid. p. 3
64
Trail, Ibid p. 5
62
13
reverse its hypocritical policy in regards to human rights and become a part of the systems 65 it
helped create. It is time for the United States to comply with international norms by both signing
onto existing human rights conventions and drafting abolitionist legislation domestically. By
abolishing the death penalty the United States could both improve its place in the international
system and ward off future conflict. In short, the United States should abolish the death penalty
in order to retain and improve its place in the international system. In conclusion, while at first
hand the conflicts over extradition appear to be only a conflict of Consular relations, knowledge
transforms this conflict, allowing us to see it for what it truly is: A systematic conflict over
respect for the international system. Knowledge, or understanding a conflict, is the crucial step
necessary to transform it.
65
The Organization of American States, The United Nations, ICCPR, et cetera.
14
Bibliography
Amnesty International. “Abolitionist and Retentionist Countries” Amnesty International
Website. Accessed November 22nd 2008.
<http://www.amnesty.org/en/death-penalty/abolitionist-and-retentionist-countries>
Amnesty International. “Death Sentences and Executions in 2007” Amnesty International
Website. [amnesty.org] April 15th 2008. Accessed Nov. 20th 2008.
Bases, Daniel. “UN Assembly calls for moratorium on the Death Penalty” Reuters. December
19th 2007.
Bishop, Anthony N. “The Death Penalty in the United States: An International Human Rights
Perspective.” 43rd South Texas Law Review Fall 2002. 1115
Boulanger, Christian and Sarat, Austin. The Cultural Lives of Capital Punishment: Comparative
Perspectives. Stanford University Press, Stanford California. 2005
Cokley, Michael. “Whatever Happened to that Old Saying “Thou shall Not Kill?”: A plea for the
abolition of the death penalty” 2 Loyola Journal of Public Interest Law 67 Spring, 2001.
Heilprin, John. “UN vote shows growing support of death penalty ban The Associated Press.
November 21st 2008.
Hood, Roger “Capital Punishment: A global perspective” Punishment and Society, 2001; 3; 331.
All Souls College, University of Oxford
Roth, Kenneth. “AEI Conference Trends in Global Governance: Do they Threaten American
Sovereignty?” Chicago Journal of International Law 347, Fall 200
Schabas, William A. Abolition of the Death Penalty in International Law. Cambridge University
Press. New York, New York. 2002.
Schabas, William A. “Lead Article: International Law, the United States of America and Capital
Punishment.” 31st Suffolk Transnational Law Review. p 377. Symposium, 2008.
Sharfstein, Daniel J. “European Courts, American Rights: Extradition and Prison Conditions.” 67
Brooklyn Law Review 719, Spring 2002.
The United Nations Economic and Social Council Resolution 1984/50 “Safeguards guaranteeing
protection of the rights of those facing the death penalty
Trail, Rebecca. “The Future of Capital Punishment in the United States: Effects of the
International Trends Towards the Abolition of the Death Penalty.” 26th Suffolk Transnational
Law Review 105, Winter 2002.
15
United Nations General Assembly Resolution, “International Covenant on Civil and Political
Rights” Resolution 2200A (XXI) December 16th 1966
United Nations General Assembly Resolution, Universal Declaration of Human Rights,
Resolution 217A (III) December 10th 1948.
Wilson, Richard J. “International Law in Death Penalty Defense” 31st Hofstra Law Review n.
1195, Summer 2003
Wyman, James H. “Vengeance is Whose?: The Death Penalty and Cultural Relativism in
International Law” 6 Journal of Transnational Law and Policy, 543. Summer of 1997.
16