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Article 77 of the Rome Statute provides that, subject to article 110, the Court may impose one of the following penalties on a person convicted of a crime referred to in article 5 of this Statute:
(a) Imprisonment for a specified number of years, which may not exceed a maximum of 30 years; or
(b) A term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person.
In addition to imprisonment, the Court may order:
(a) A fine under the criteria provided for in the Rules of Procedure and Evidence;
(b) A forfeiture of proceeds, property and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties.
No one should be surprised about the clear absence of death penalty provision in the ICC Treaty. The wording of Article 6 of the ICCPR, although short of abolition of the death penalty, left a clear signal that international law considers the abolition of the death penalty to be a desirable end. Hence, the 2nd Optional Protocol to ICCPR abolished the death penalty stating clearly in Article 1 that no one within the jurisdiction of state party shall be executed. The preamble to this Protocol is a must read for anyone desirous to find justification for the abrogation of this unusual punishment of death.
Another forward looking Treaty is the European Convention on Human Rights (ECHR). Although Article 2 of ECHR did not abolish the death penalty, Protocol No 6 of ECHR abolishes the death penalty in peace time and protocol 13 abolishes it in all circumstances. It is the policy of the Council of Europe to require that all new member states undertake to abolition the death penalty as a condition for admission into the European Union. For further discussion on the abolitionist stand, please, see:
• “When the State Kills: A Human Rights Issue” Amnesty (1989)
• W Schabas: The Death Penalty as Cruel Treatment and Torture: Capital Punishment Challenged in the World Court (1996)
• W Schabas: The Abolition of Death Penalty n International Law (2nd edition; 1997
See also, the deep reflection of Justice Chalskalson in State v. Mekwanyane, Constitutional. Court of the Republic of South Africa, 1995 Case No CCT/3/94, (1995) 1 LRC 269; Pratt v. Attorney General for Jamaica (1994) 2 AC 1, 1993 4 ALL ER 769; Catholic Commission for Justice and Peace in Zimbabwe v. AG SC OF Z 1993 Judgment no SC73/93 14 HUM. RTS LJ 323 (1993).
From the foregoing, it easy to see that, increasingly retention or abolition of capital sentence is becoming the clear yardstick for separating open societies from closed ones. There is a clear nexus between dictatorship and continued retention of capital sentence. Singapore and Iraq are illustrative.
The Flaws in Singapore’s Death Penalty Jurisdiction and why we believe that Tochi was murdered:
Transparency is a key to assessing whether or not any country’s criminal justice system could be trusted to deliver the level of fair trial in any trial involving the irreversible decimation of a human being. Although Singapore insists on its right to decide how to handle criminals, they cannot shy away from the obligation of transparency imposed by Article 14 of the ICCPR.
It is an open secret that Singapore emasculates freedom of the press, hence making it impossible for the public to have the essential information needed to monitor the application of the death penalty. In a recent report by the UN’s Economic and Social Council, written by the celebrated professor Phillip Alston, and titled “Transparency and the Imposition of the death Penalty”, Singapore’s culture of secrecy about key issues involving death penalty statistics was mentioned as a case study. The Report concluded rightly, that the public is unable to make an informed decision about death penalty in absence of key information; hence the public, ie democratic citizens know little or nothing about punishment being dished out in their name. Secrecy and fair trial are strange bed fellows and that is why Article 14 insists on fair and public trial. Amnesty International also wrote an interesting Report in 2004 about the Hidden Toll of Execution in Singapore and opened up several flaws in the country’s death penalty jurisprudence.
It is also important that a connection is drawn between absence of fair trial and breach of a country’s obligation under the ICCPR. Article 6, of the ICCPR, earlier referred to, limits the application of death penalty, insisting that countries that still wish to continue with the death penalty regime, must limit its use to the most serious offences and ensure that it is not being applied arbitrarily. The question that the committee on ICCPR have had to decide is what is meant by arbitrary application.
In Guerrero v. Columbia, Communication No R. 11/45 (5 Feb. 1979) UN Doc. Supp. No. 40 (A/37/40) at 137 (1982), the ICCPR Committee was called upon to interpret what is meant by “arbitrary.” In this case, the Colombian Police, in search of kidnappers, shot and killed seven people, who had no knowledge of the crime. The State sought to justify the police action, using the Country’s Legislative Decree No 0070. But the ICCPR Committee held that the police action cannot be justified merely by evoking national legislation. The Committee noted that the mere fact that the taking of life is lawful under national law does not by itself prevent it from being “arbitrary”.
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Wilfred Mamah
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yes Chucks Evuka | Feb 27th, 2007
Death panality is total misreguard to humanity,why must evil be paid for evil,giving warnings is accepted but deathpanalty no.it is time to change for good and stop the olden days method of handling issues. thans
chuks
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