Sunday, 6 May 2007

Drug penalty violates international law

Applying the death penalty for drug-related offences is a breach of international law, according to analysis by a leading human rights adviser to the United Nations.

Professor Philip Alston, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, said where it is used, the death penalty should be restricted to the "most serious crimes".

In a detailed analysis in his latest annual report to the Human Rights Council, he concluded the death penalty "must be limited to the most serious crimes, in cases where it can be shown that there was an intention to kill which resulted in the loss of life".

The offences considered to be among the "most serious crimes" did not include those relating to drugs.

The death penalty is widely used across Asia for drug offences, including in China, Viet Nam, Indonesia, Malaysia and Singapore, where it is a mandatory sentence for a large number of drug crimes.

The 'most serious' issue
Professor Alston's report said the International Covenant on Civil and Political Rights (ICCPR) first introduced the "basic requirement" restricting the application of the death penalty.

Article 6(1) states that: "Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life."

This right is elaborated by Article 6(2), which specificies that: "In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes..."

He said the term was not defined in human rights treaties, but its meaning had been clarified over time through debate, principles of interpretation and the practice of international human rights bodies.

The UN Secretary-General and the Commission on Human Rights have stated and reinforced this principle, and it has also been elaborated through a large number of specific cases decided by the Human Rights Committee.

These developments "have all combined to clarify the meaning and significance of the phrase", which is now taken to refer to crimes where there is a deliberate loss of life.

'Not up to governments'
The report argued that it should be international law, rather than the laws or views of individual governments, which decides the crimes that are "most serious" and therefore liable to the death penalty.

Professor Alston said "a vast array of offences might understandably be classified by any given individual or Government as being among the "most serious"."

He cited work by a previous Special Rapporteur, which found death sentences had been imposed for offences and conduct ranging from corruption, drug possession and blasphemy, to prostitution, 'speculation' and vaguely defined 'crimes against the State'.

While these death sentences may have been considered legal within the country's criminal code and sentencing practices, he said it was not acceptable to leave individual governments to take a "subjective approach" to the issue.

Leaving it to governments to decide the meaning of the term was "not viable".

He said "such an approach would render the relevant international law standard meaningless".

The report found in its summary that, after a wide-ranging survey of legal principles and practice, "if it is to comply with the most serious crimes restriction, the death penalty can only be imposed in cases where it can be shown that there was an intention to kill which resulted in the loss of life".

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