Thoughts Lead To Appreciation
In International Human Rights Law: Prospects And Challenges, an online Coursera course by Duke University, a question was posed.
Laurence Helfer, the professor, asked whether the ban on the death penalty meets the requirements for Customary International Law.
Customary International Law is adopted by the United Nations when a practice is consistently widespread and observed as a legal obligation.
140 nations have either removed the death penalty as a form of punishment, restricted its implementation only for the most serious crimes or placed a moratorium on the practice, as of 2012.
58 other nations still employ the death penalty as a legal framework.
Seventy-one percent [71%] – more than two-thirds [2/3] – of the members of the United Nations General Assembly have proscribed the death penalty.
However, that practice has not yet attained the status of Customary International Law.
The reasons are twofold:
1~ The high figure might very well be because of the intimidation tactics of western government officials and non-government organisations to elicit compliance.
Customary International Law cannot be based on a legal practice no matter how widespread that is borne out of coercion, not if freedom is fundamental to human rights.
2~ Moratorium or suspension of the death penalty is a temporary measure.
That was discernible from the speed with which Pakistan reversed the moratorium and embarked on mass executions of Pakistani Taliban.
In the same knee-jerk reaction, Jordan lifted its moratorium on the death penalty and executed Sajida Mubarak Atrous Al-Rishawi, an Al-Qaedah-linked prisoner.
Both nullifications of the decisions on death penalty were in retaliation to the outrage on murders of own citizens by militants.
3~ The condition that Customary International Law be a widespread practice must be accompanied with consistency.
That is the practice must be continuously widespread devoid of interruptions.
Hence, the element of being widespread is not just in the number of States Parties that have adopted the practice, but also that have consistently over time maintained that practice.
4~ It is one thing for a State to ban the death penalty within own territory, maintaining that in overseas operations is another matter entirely.
Dropping bombs on elderly women working on farms qualify not just as extrajudicial killings but also as capital punishment for the charge of being of another race or nationality.
Executions of children throwing stones come under this category.
The same goes for shooting to death migrants trying to cross borders.
Nations may have a proclivity for abolition of the death penalty for convicts, the same States Parties unmistakably have no respect for the right to life of persons who have never been put through a judicial process.
Add all other instances where the right to life is respected only on paper especially for foreign nationals, by outlaw State Parties and the two rules of Customary International Law crumble.