Is complicity with the death penalty illegal? – Dr Bharat Malkani

17 July 2013 by

Texas-death-chamber-007In a previous blog post on these pages, the case of Lindsay Sandiford was examined. Sandiford – a British citizen facing the death penalty in Indonesia – had asked the UK Government for funding to help her appeal, but was refused financial help. The Court of Appeal ruled in favour of the Government, stating that the decision to provide legal aid to a British citizen abroad is a discretionary matter for the executive.

Regardless of whether one agrees with the decisions of the Government and the Court, the case raises interesting questions about the obligations that are imposed on states that have abolished the death penalty. The primary duty on states is to simply refrain from imposing the death penalty, but it is possible to detect an emerging secondary obligation to refrain from facilitating the use of the death penalty elsewhere. This issue is particularly relevant to the UK, because although the UK takes a leading role internationally in campaigning for the abolition of the death penalty, there is evidence that the UK has on occasion aided the use of capital punishment elsewhere.

One example of complicity in the death penalty arises in the field of extradition law. In Al-Saadoon v UK – decided in 2010 – the European Court of Human Rights made it clear that member states are not permitted to extradite individuals to states where there is a real risk that they will face the death penalty. The United Nations has also made it clear that abolitionist states must not expose individuals within their jurisdiction to the risk of being executed. To do so would be tantamount to assisting a practice that is forbidden.

This line of reasoning raises the question of whether other types of complicity in the death penalty are forbidden by European and international human rights law. It is argued here that wider obligations to refrain from being complicit in the death penalty can indeed be extrapolated from Al-Saadoon and other relevant authorities.

Mutual legal assistance

Extradition is simply one form of mutual legal assistance between states. The UK, for example, regularly offers assistance to law enforcement agencies in other countries, and it is arguable that such assistance should also be subject to the Al-Saadoon rule, namely, that assistance must only be provided when assurances have been received that the death penalty will not be on the table in any conviction that results from such assistance. Although the Government currently has some guidelines on when officials should decline to offer assistance, these guidelines are vague on the matter of the death penalty, and in any event are not binding. This is not a hypothetical point either, as there are cases in which British authorities have provided assistance to foreign authorities without first seeking assurances that the death penalty will not be sought or imposed. As reported elsewhere, two men in Antigua only narrowly avoided the death penalty after British police helped authorities there track them down and arrest them.

Other types of assistance also facilitate the use of the death penalty elsewhere. The UK, and other abolitionist states, provide resources and intelligence to countries that are at the forefront of counter-narcotics work. Although countries like Iran and Pakistan have genuine problems with drug-trafficking, these countries are also notorious for imposing the death penalty for drug-trafficking offences, contrary to international law. Harm Reduction International has provided examples of how resources and assistance from abolitionist countries have led to the executions of drug-traffickers, rendering these donor states complicit in the use of the death penalty. The Observer has also reported on the link between British funding and the execution of drug traffickers.

Most funding for counter-narcotics work goes through the United Nations Office on Drugs and Crime (UNODC). The UN routinely calls for the abolition of the death penalty, and thus the UNODC has recognised the incompatibility of providing support for counter-narcotics work with its duty to respect fundamental human rights. Just last year, it issued a position paper that explicitly states:

‘If . . . a country actively continues to apply the death penalty for drug offences, UNODC places itself in a very vulnerable position vis-à-vis its responsibility to respect human rights if it maintains support to law enforcement units, prosecutors or courts within the criminal justice system.’ (pg. 10)

Although an obligation to withhold assistance has not yet been identified by any court, it is clear that these cases pose a legal conundrum.

Finally, the legal charity Reprieve has highlighted how abolitionist states have facilitated executions by allowing pharmaceutical companies to provide the drugs required for lethal injections. As a result of Reprieve’s innovative and strategic campaigning, many of these companies have stopped providing the means for executions. The UK Government and the European Commission have enacted stricter controls to ensure that goods exported to retentionist states are not used for the purposes of capital punishment.

As pointed out in the blog about Lindsay Sandiford, it could even be argued that the decision to not grant legal aid has increased the chances of her being executed, thus making it arguable that the Government has indirectly facilitated the imposition of the death penalty in this case. This is debateable, but clearly there is work to be done to ensure that the UK and other abolitionist countries are not inadvertently complicit in the use of the death penalty abroad.

Dr Bharat Malkani is Lecturer and Pro Bono Coordinator at Birmingham Law School. This post draws on the author’s article ‘The Obligation to Refrain from Assisting the Use of the Death Penalty’ (2013) 62(3) International & Comparative Law Quarterly 523-556

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:


  1. cidermaker says:

    It strikes me that this is unjustified interference in sovereign countries’ legal systems. If a country chooses to retain the death penalty so be it. I see no reason why a criminal should not be extradited to face the death penalty if that is the Law in the country in which the crime is committed. With reference to Lindsay Sandiford, she knew, or should have known the penalty for drug smuggling in Indonesia. Effectively she was peddling death to countless others by her activities.

  2. If the executive will not exercise their discretion to grant legal aid to a citizen who is facing the death penalty, when will they? And who polices such life or death discretion, if the courts will not?

Comments are closed.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals Anne Sacoolas anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board care homes Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy diplomatic relations disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control hague convention Harry Dunn Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy procurement Professional Discipline Property proportionality prosecutions prostituton Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation refugee rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism The Round Up tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Weekly Round-up Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: