Recently, the International Court of Justice pronounced its verdict in the matter of the detention and trial of an Indian National, Kulbhushan Jadhav, who was sentenced to death by a military court in Pakistan. In its final verdict, the ICJ held that Pakistan breached the obligations incumbent upon it under Article 36 of the Vienna Convention on Consular Relations and that the appropriate reparation in this case would be for Pakistan “to provide, by the means of its own choosing, effective review and reconsideration of the conviction and sentence of Mr. Kulbhushan Jadhav (…).” Judge Trindade, who authored a separate opinion in the matter, noted that a mere review and reconsideration was manifestly insufficient. He suggested that there is not only evidence of an evolving rule of CIL prohibiting the death penalty, but that the ICJ as “the principal judicial organ of the United Nations” (Article 92 of its Charter) has a duty to uphold such progressive development in international law.
Jurists, philosophers and writers have consistently expressed a deep detestation for this mode of punishment. Cesare Beccaria found it absurd that laws, in an attempt to separate citizens from an intention to kill, could order a public murder. These intellectuals argue that law and justice are inseparable. The retributive punishment of the death penalty, which derives from the ancient principle of lex talionis, fails to respect the just aspect, which should be inherent in any law. As a result, with every pronouncement of death penalty, there is an abstraction of justice at the hands of law.
Death Penalty and Customary International Law
Article 38 of the Vienna Convention on the Law of Treaties provides that a non-party to a treaty containing a particular norm can still be bound to it if the norm is found in customary international law (CIL). The determination of the rule of CIL, as it is defined in Article 38(1)(b) of the Statute of the International Court of Justice (ICJ), requires the existence of two elements: state practice and opinio juris.
In the Asylum case, the ICJ declared that a customary rule must be ‘in accordance with a constant and uniform usage practiced by the states in question’. In the case of prohibition of death penalty, there is ample evidence suggestive of the increasing consensus on its abolition, found in the signing and ratification of treaties and votes and resolutions of policy decision-making bodies. A large majority of the Member States of the UN has already abolished the death penalty or observes a legal or defacto moratorium on its use.
Article 6 of the ICCPR provides every human being with the inherent right to life. It allows for this right to be suspended only for the most serious crimes, pursuant to a final judgement rendered by a competent court, and explicitly states that nothing in it shall prevent the abolition of capital punishment by any state party to the present covenant, among other conditions. In 1939, the UN adopted a Second Optional Protocol to the ICCPR, with an aim to abolish death penalty, which has been ratified by 85 States.
The Council of Europe has two major instruments for the abolition of death penalty, namely protocol 6, which prohibits the use of the death penalty during peacetime, and protocol 13, which prohibits it in all circumstances. No member of the Council, except for Belarus, has carried out an execution in the 21st century. The Council has turned its attention towards non-member states, especially observer states, leading to an inexorable trend towards abolishing the death penalty witnessed in the past years.
Even the Organisation of American States has consistently worked towards the abolition of the death penalty. Articles 4(2) to 4(6) of the 1969 American Convention on Human Rights strictly limit its imposition with an aim to put an end to it. In addition to this, the 1989 Protocol to the American Convention on Human Rights expressly seeks its abolition.
It is also pertinent to show that the abolition of death penalty is a result of legal obligations. Valid expression of opinio juris come in the form of judicial decisions, which have routinely condemned death penalty. In Soering v. United Kingdom 1989, the European Court of Human Rights held that the extradition of a man accused of murder to the US, where he could face death penalty, would violate the prohibition against torture, because of the emotional and mental distress induced by way of the long time spent on death row in extreme conditions. In Al-Saadoon and Mufdhi v. the United Kingdom 2010, the court went a step further and observed that over time the right to life had been amended so as to prohibit the use of the death penalty altogether.
Despite commendable progress, the abolition of death penalty is not uniformly observed. Data compiled by Amnesty International for the year 2018 indicates that for the 10th consecutive year, the US remains the only country in the Americas to carry out executions. The question then arises whether the fact that the death penalty continues to exist in a number of countries would hinder the acceptance of its abolition as a CIL.
Absolute conformity has never been a necessary condition when considering the emergence of a CIL. In Nicaragua v. United States, the ICJ clarified that the practice in question did not have to be ‘in absolute rigorous conformity’ with the purported customary rule. Countries like the US, a key dissenting country, should not set the trend and should neither be allowed to hinder the movement towards the acceptance of the abolition of death penalty as CIL. Joan Fitzpatrick argues that “If supporting practice must be purposive and accompanied by opinio juris, it is hard to see why the mere fact of inconsistent practice should create an exception, especially where that practice occurs after the crystallisation of the norm.”
Additionally, a new approach is developing where states accept norms of CIL that protect human rights because they ought to agree to them, even when these norms are not legally binding, which is necessary under the traditional definition of opinio juris. Brian D. Lepard challenges the application of the traditional doctrine of opinio juris for this reason. He proposes an alternative definition, which “looks to opinio juris as the core of customary law and also re-envisions opinio juris as a forward-looking belief regarding what the law ought to be, now or in the near future, not merely what it is.” He has advanced this view in Customary International Law: A New Theory With Practical Applications.
The death penalty also constitutes torture and cruel, inhumane and degrading treatment (CIDT). Article 1.1 of the Convention Against Torture defines torture as “any act by which there is severe pain and suffering, whether physical or mental suffering.” The ECtHR has held in the past that death penalty constitutes CIDT or even torture, regardless of the circumstances of implementation, or the particular individuals upon whom it is imposed. The African Commission on Human Rights has followed suit, and this idea is also reflected in the dissenting opinion of US Supreme Court Justice William J. Brennan in Gregg v. Georgia. He argued that “the State, even as it punishes, must treat its citizens in a manner consistent with their intrinsic worth as human beings – a punishment must not be so severe as to be degrading to human dignity.”
The prohibition on the use of the death penalty is not only emerging as a norm of CIL, but there is also an evolving standard in international law, whereby all cases of death penalty are seen as a violation per se of the prohibition of torture and CIDT. The “death row phenomenon” has emerged in the context of the implementation of death penalty and the prohibition of torture and CIDT. It refers to a combination of circumstances which induce severe mental trauma and physical suffering in prisoners awaiting execution, especially when such periods are spent in solitary confinement with poor prison conditions and a lack of educational and recreational activities. This evolving state practice and international opinion highlights the extreme difficulty of implementing the death penalty without violating the prohibition of torture and CIDT in particular.
The keen observations made by Judge Trindade in the Kulbhushan Jadhav are reflective of his commitment towards achieving the abolition of death penalty, and his disappointment with the failure of the majority judgement in the case to condemn the death penalty. They are by no means unwarranted. Albert Camus, in his penetrating Reflections on the Guillotine, said that if murder is in the nature of man, “the law is not made to reproduce or imitate that nature”, but to correct it. Regardless of factors such as the crime committed, the individual who committed the crime, and the circumstance in which it was committed, the death penalty can never be anything more than a means of retribution, and ought to be abolished.