Should those imposing the death penalty be prosecuted for grave violations of international humanitarian law? Too many states, from Iran, Saudi Arabia, China to the US, still execute persons, and frequently for crimes that under international law are not considered "most serious crimes."
Can the governments of such states be themselves accused of systematic criminal norms under international law codified in treaty and norms adopted by representatives of such countries? While there has been sharp drop in the number of states that still execute persons, unfortunately most of the globe's population lives within jurisdictions that still practice the death penalty, and too frequently with arbitrary application.
Perhaps it is time to press the end of the death penalty but not only pleading for the lives of the convicted but also bringing into question the legality and criminality of those responsible for the practice, the jurisdiction but perhaps also the politician, judge, prosecutor and executioner?
"War on Drugs" & Complicity in Death Penalty
The death penalty has been evidenced to be neither effective deterrent nor, rather obviously, as a form of rehabilitation. On the other hand, execution is employed as punishment too frequently for crimes that do not involve the minimum standard of violence, particularly narcotics/drug offenses.
According to the UN, around 1,000 executions a year are related to alleged drug crimes: "The International Covenant on Civil and Political Rights prohibits the imposition of the death penalty for any but the 'most serious' crimes. Drug offences, according to the Covenant, cannot meet this threshold, comparing to the crimes involving international killing, which is the 'most serious.'... Concerned that some global efforts to combat drug crime would inadvertently be contributing to unlawful executions, Mr. Heyns, (UN's Special Rapporteur on extrajudicial, summary or arbitrary executions), urged abolitionist states to ensure that they are not complicit in the use of the death penalty in other states under any circumstances. Meanwhile, he stressed to international agencies and States providing bilateral technical assistance to combat drug crime that, they "must ensure that the programmes to which they contribute do not ultimately result in violations of the right to life."
Death Penalty as Torture?
The death penalty is also frequently applied in an arbitrary manner, that targets minority and/or disadvantaged members of society. The death penalty may also be applied as means of imposing political agendas or authority rather than as as an exercise in the rule of law or justice.
Regardless of underlying motive, the death penalty under international law has a higher standard requiring the most serious violation now increasingly defined as "intentional killing." According to Juan E. Mendez, the UN Special Rapporteur on Torture: "Certain States that persistently and openly flout this international standard are also acting contrary to an emerging customary norm that the imposition and enforcement of the death penalty, in breach of those standards, is a violation per se of the prohibition of torture or cruel, inhuman or degrading treatment."
If the death penalty serves no real purpose beyond retribution, can it be logically as well as morally seen as anything other than torture? It is evident in the rhetoric of politicians, prosecutors and judges advocating and imposing the death penalty that punishment of the accused is the primary motive, and this is not merely limited to states with a historically flawed judicial system.
There was an effective moratorium on executions in the US for a couple of decades of the last century. However, now the US is among those states that impose the death penalty most frequently, including executions of mentally deficient persons and minors, (or at least those charged of committing the crime as a minor.) The US has also ignored the rulings of international courts and appeals of human rights institutions in carrying out executions. The evident and acknowledged remorse, rehabilitation and/or positive contributions to society by the condemned person post conviction have not been enough to stop execution. Again, we must ask the question then what is the purpose, beyond the obvious of vengeance?
Some of the presumed moral foundation for the death penalty may be associated with the theology of "an eye for an eye" linked to the major monotheistic traditions. However, religion has been employed as camouflage for politics, authoritarianism and the perpetuation of the ruling elite. In the US, the history of lynchings as well as exploitation of Native Americans, African Americans and Asians was promoted in part on basis of selective readings of theology. (See: "Legacy of Police on Black Violence Pre & Post 'Selma Bloody Sunday'?") Perhaps instead of retribution, organized religion can emphasize not only mercy but redemption, which apparently has not as yet pierced the national moral consciousness in some Islamic, Christian, Buddhist majority societies.
No Death Penalty for Genocide
Perhaps the worst crime that we can envision deserving the death penalty is genocide, as it goes beyond "intentional killing" to indiscriminate murder including the youngest in the targeted group. Faced with the recent evidence of such gravest violations of international humanitarian law, international tribunals mandated to deliver justice for the crimes committed against the citizens of Bosnia & Herzegovina, Cambodia and Rwanda rejected the option of the death penalty for the perpetrators. For the victims, while clearly some saw the death penalty as warranted, it was the certainty of judgment of the perpetrators that delivered what they seek.
As one of those involved in the drafting of the Rome Statute in 1998 establishing the International Criminal Court, we rejected the notion of death penalty as serving justice. Rather, seeking more tangible remedies for victims as well as certainty of judgment we understood such as most relevant. The death penalty did not add to either satisfaction or dignity but could be seen as detracting from it even while recalling that some Nazi and Imperial Japanese offenders had been executed for their crimes at the conclusion of WW II. The evolution of the law as well as humanity that stands behind such needs to be responsive and respectful of life, if the major stated purpose is to protect life.
Is Death Penalty an International Crime?
Stripped of its previously presumed preventive rationale, ritualism, moralizing and mythology, the death penalty stands out as torture, (or, employing terminology applied by a significant segment of US Courts, as "cruel and unusual punishment.") From direct contact and relationship with those that have been condemned to be executed, I have no doubt that redemption is possible and has been achieved even if they remain incarcerated for the remainder of their lives. Having represented the targets of genocide, it is the certainty of judgment and with consequences in remedying/reversing the consequences of such crime(s) that is the most critical, at least as a form of empowering the victims. Then we must ask again, why the death penalty?
As some previous practices that at one time in the history of humanity appeared to be legitimized by some tradition or even divine inspiration, including slavery, subjugation of women and even genocide, the death penalty not only should be discouraged but perhaps criminalized. For those of us who are offended by the practice particularly when done in the name of our society, we must take responsibility to help the change. As global citizens as well as Americans or other nationalities, the death penalty obfuscates our shared values and efforts to promote a political/diplomatic culture of respect for life. Is it time no longer to plead for life but turn the table on those who would confiscate it from another, absence of urgency and justification of self-defense? Will the death penalty itself become recognized as a grave violation of international humanitarian law?
"The Gallows Pole" performed originally by American Blues singer Leadbelly almost a century earlier reflects the moral decadence as well as economic injustice behind the death penalty. Since, it has been covered by many music artists including Bob Dylan and Led Zeppelin. Below links to the story behind and music of Leadbelly: