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…