Emerging Voices: Does International Law Forbid Complicity in the Death Penalty?

[Bharat Malkani is a lecturer at Birmingham Law School, University of Birmingham, where he also runs the Birmingham Law School Pro Bono Group. You can also follow him on Twitter @bharatmalkani]

Recently, Ali Babitu Kololo was sentenced to death by a Kenyan court for his role in the murder of David Tebbutt, and the kidnapping of David’s wife, Judith, in September 2011. David and Judith were British holidaymakers in Kenya at the time of their ordeal, and British police were heavily involved in the investigation into these crimes. Officers from the Met’s Counter Terrorism Command (SO15) travelled to Kenya and played a major role in securing the arrest and conviction of Kololo. The officers provided forensic expertise, assistance with preparing the prosecution’s case, and also provided support to the victims’ family. Commander Richard Walton, the Head of the Met’s Counter Terrorism Command, said: “The investigation team, led by Detective Superintendent Neil Hibberd, have… shown great skill and tenacity in assisting this Kenyan investigation.”

It is only right that British authorities should help to bring the killers and kidnappers of British citizens to justice, and Kololo should be punished severely for the crimes he committed. But it is questionable whether the British authorities should contribute to the imposition of the death penalty. The UK has long rejected capital punishment for even the most serious of crimes, and the UK currently plays a leading role in promoting abolition of the death penalty in other countries. At the very least, it is starkly hypocritical for the UK to condemn other countries for using the death penalty on the one hand, while on the other hand actually assisting those countries like Kenya impose the death penalty.

Moreover, though, it might actually be illegal for British authorities to be complicit in the death penalty. It is arguable that, under international law, a norm is emerging that prohibits states that have abolished the death penalty from assisting its use elsewhere, comparable to the prohibition on complicity in torture and the prohibition on complicity in other internationally wrongful acts (Article 16 of the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts) .

The starting point for this claim can be found in extradition law. Both the European Court of Human Rights and the United Nations have made it clear that abolitionist states are forbidden from extraditing individuals to states where there is a real risk that they will face the death penalty. The principle behind this prohibition is simple: to do otherwise would be tantamount to aiding and assisting a practice that is forbidden.

Wider obligations to refrain from being complicit in the death penalty can be extrapolated from this principle. Extradition, remember, is just one form of mutual legal assistance, and it is odd that extradition to face the death penalty is prohibited, but providing police support to arrest, convict and sentence a person to death is not prohibited.

There are other ways in which abolitionist states can contribute to the imposition of the death penalty. Some states provide assistance to countries that struggle with drug-trafficking. The UN Office on Drugs and Crime (UNODC) – which is funded in part by abolitionist countries – regularly provides resources and intelligence to the likes of Pakistan and Iran to help with their counter-narcotics efforts, but these countries are notorious for imposing the death penalty for drug-trafficking offences, contrary to international law. Harm Reduction International has issued a report that explains in detail how resources and assistance from abolitionist countries have led to the executions of drug-traffickers. The Observer newspaper has also reported on the link between British funding and the execution of drug traffickers.

The UN routinely calls for the abolition of the death penalty, and the UNODC has actually recognised its potential complicity in the use of the death penalty. In 2012, 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)

The legal charity Reprieve, which is based in the UK, has also highlighted how some abolitionist states have enabled executions by allowing pharmaceutical companies to provide the drugs that are needed for lethal injections, particularly in the United States. Reprieve’s campaigning on this point has led to many of these companies ceasing the provision of such drugs, and the UK Government and the European Commission have put in place stricter controls to ensure that goods exported to retentionist states are not used for the purposes of capital punishment. State practice, in this area at least, therefore also indicates a move towards refraining from being complicit in the death penalty elsewhere.

Kenya has not carried out an execution since 1987, and it has been reported that the UK Foreign Office is confident that the death penalty won’t actually be carried out in this case. However, there are still others to be arrested in connection with this offence, and it would surely be better for the UK to only provide assistance on the proviso that no death sentences are handed down as a result of their investigations. Although no court has identified an obligation to withhold assistance without such assurances, the actions of governments and inter-governmental organisations like the UNODC suggest that an obligation is emerging in international law.

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.