By Professor Donald Rothwell
While the legal arguments being made on behalf of Andrew Chan and Myuran Sukumaran before the Indonesian courts have focused on Indonesian law, there is also an international law dimension to the imposition of capital punishment which is of equal importance.
Over the weekend Indonesian Foreign Ministry spokesman Armantha Nasir indicated that capital punishment is "still in line with the context of international law … where capital punishment can be used for the more serious of crimes". Nasir went on to assert that "drug trafficking and distribution is a serious crime for Indonesia".
Indonesia is ... in a distinctive positon. It has accepted the International Covenant on Civil and Political Rights, retains the death penalty, and applies it to drug crimes.
Irrespective of what Indonesian law may say on the matter, and irrespective of the imposition of the death penalty in some countries for the most serious categories of murder, the imposition of capital punishment for drug crimes is not permissible under international law to which Indonesia is subject.
In this respect, the 1966 International Covenant on Civil and Political Rights, which Indonesia joined in 2006, is the pivotal treaty. The covenant was drafted in the recognition that, at the time of its conclusion, the death penalty was not illegal per se but that its application should be severely limited. Article 6 (2) states: "In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime."
Indonesia would have been well aware of this obligation when it accepted the covenant, and the limitations the treaty imposes on its imposition of the death penalty for anything but the most serious crimes. As a party to the covenant, Indonesia is obliged under international law to perform its treaty obligations in good faith, respecting its solemn commitment to abide by its international legal obligations. This is especially the case when the human rights of foreign citizens are at stake.
There is considerable legal authority to suggest that drug trafficking does not fall into the category of the "most serious crimes".
For example, in 1982 the UN Human Rights Committee emphasised that the right to life is not to be interpreted narrowly. With particular reference to the death penalty, the committee emphasised that states "are obliged to limit its use and, in particular, to abolish it for other than the most serious crimes".
The expression "most serious crimes" was in the view of the committee to be read "restrictively to mean that the death penalty should be a quite exceptional measure". A similarly restricted reading of Article 6 (2) came in 1984, when the UN Economic and Social Council adopted the "Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty", later endorsed by the UN General Assembly.
Those safeguards provided that: "In countries which have not abolished the death penalty, capital punishment may be imposed only for the most serious crimes, it being understood that their scope should not go beyond intentional crimes with lethal or other extremely grave consequences."
Further, in a 2005 resolution of the UN Commission on Human Rights, this matter was revisited: "To ensure also that the notion of 'most serious crimes' does not go beyond intentional crimes with lethal or extremely grave consequences and that the death penalty is not imposed for non-violent acts."
In addition to Indonesia's obligations under the International Covenant on Civil and Political Rights, the UN has in recent years called for a moratorium on the imposition of the death penalty, including UN General Assembly resolutions in 2007, and in 2008. Until recently Indonesia was practising this moratorium, however its executions by firing squad of six people on January 18 reversed that trend.
Indonesia has pointed to the fact that a number of states retain capital punishment, but those countries are not parties to the covenant. And if, like the United States, they are signatories to the covenant, they do not retain the death penalty for drug crimes. Indonesia is therefore in a distinctive position. It has accepted the International Covenant on Civil and Political Rights, retains the death penalty, and applies it to drug crimes.
Much has been made in recent weeks of Indonesia being a sovereign state, of the need to respect the Indonesian legal system, and accepting that Indonesia has much tougher drug laws than many countries. This is all true, but importantly in this case Indonesia has also made the decision to accept and abide by the covenant, which is one of the foundational legal instruments upon which international human rights law is based. Here Indonesia differs from some of its neighbours like Singapore or Malaysia which have not adopted the covenant and retain capital punishment.
Ultimately, for Indonesia this now becomes a rule of law matter. In accepting the International Covenant on Civil and Political Rights, Indonesia has stated to the rest of the world its commitment to international human rights, consistent with its position as a free and democratic society, and respect for binding international legal obligations. Indonesia's imposition of the death penalty upon Chan and Sukumaran for their drug crimes is not consistent with international law.
Donald Rothwell is professor of International Law at the ANU College of Law, Australian National University. In 2005 he advised the legal team representing Nguyen Tuong Van, the last Australian to be executed overseas. This article was originally published on The Age.