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

17 July 2013 by Guest Contributor

In 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

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