Narcotics, international law and the death penalty: The way forward

By Dr Christopher Ward and Professor Donald Rothwell

The tragic execution of Andrew Chan and Myuran Sukumaran and before that, Nguyen Tuong Van in Singapore in December 2005, have highlighted the limited avenues available to a government that seeks to avoid the unjust imposition of the death penalty upon one of its citizens. 

The events in Indonesia have also highlighted the arbitrary and capricious nature of the application of the death penalty with last-minute reprieves for Mary Jane Veloso and Serge Atlaoui being granted while Chan and Sukumaran were executed when serious and fundamental questions remained over their sentencing process.

The application of the death penalty in the Asia Pacific is frequently inconsistent with international law. While international law does not necessarily prohibit the death penalty in all cases, there are a number of significant treaties and other international rules that expressly limit its application. In particular, the imposition of capital punishment for drug crimes is not permissible under international law to which Indonesia, and many other Asia Pacific countries, are subject.

Indonesia is a party to the 1966 International Covenant on Civil and Political Rights. The covenant was drafted in the recognition that, at the time of its conclusion, the death penalty was not prohibited by international law but that its application should be severely limited. It limits the application of the death penalty to "the most serious crimes".

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Although drug trafficking is clearly "a" serious crime, it cannot be characterised as "the most serious crime". It does not inevitably lead to lethal consequences. The United Nations Human Rights Committee has made clear that only exceptional crimes may carry the death penalty, and the United Nations Economic and Social Council has defined the relevant crimes to be those which necessarily lead to lethal consequences as constituting a most serious crime. Narcotics control treaties in force throughout the Asia Pacific refer to lengthy imprisonment as the most appropriate punishment for drug crime.

In the case of Chan and Sukumaran, the fact that the drugs involved were to be trafficked to Australia, and not within Indonesia, meant that no Indonesian citizen faced any grave or lethal consequence as a result of their actions, and constituted a powerful basis to object to the application of a penalty of death.

The blanket rejection of clemency bids by President Joko Widodo without any consideration of individual circumstances, the rush to arbitrary execution while substantial and fundamental legal issues remained before Indonesian courts and tribunals, and the determination to execute after 10 years of imprisonment are additional reasons that Indonesia's conduct failed to comply with its most basic international legal obligations.

Despite the clear inconsistencies between international law and Indonesia's conduct, no international tribunal was able to rule on these matters. As Foreign Minister Julie Bishop has publicly stated, Australia unsuccessfully sought Indonesia's agreement to resolve these international legal issues before the International Court of Justice. 

The lack of compulsory international dispute-settlement processes in these cases renders it imperative that Australia now take a leadership role in seeking a regional moratorium on the application of capital punishment for narcotics offences, if not more generally.

Amnesty International, which has maintained a lengthy campaign against the death penalty, has identified that well over half the countries in the world have now abolished the death penalty entirely.  Abolitionist countries in the Asia Pacific now include Australia, Cambodia, Kiribati, Marshall Islands, Mauritius,  Micronesia, New Zealand, Niue, Palau, Philippines,  Samoa, Seychelles, Solomon Islands, South Africa, East Timor, Tuvalu, and Vanuatu.  Of other countries in this region, Cook Islands, Fiji, Brunei Darussalam, Maldives, Myanmar, Nauru, and Tonga have essentially abolished the death penalty in all but the most exceptional cases.

That leaves a much smaller number of regional countries which retain the death penalty, of which China is the most prominent. Alarmingly, Papua New Guinea is actively considering reintroducing the death penalty.

 A bipartisan consensus has emerged in recent days for Australia to do more to abolish the death penalty. A good place to start is within our region. Efforts must be directed at engagement through ASEAN and other regional fora. Our politicians and diplomats must speak with one voice, and with consistency, on the issue. Inconsistency limits Australia's ability to speak out on behalf of Australians abroad by removing the most powerful tool in the diplomatic armoury, Australia's consistent and implacable opposition to the death penalty.

The example of rehabilitation of Chan and Sukumaran and their ability to speak to future generations of youth is something which Indonesia should today be celebrating. Instead, it faces justified international condemnation, increased friction with its neighbours and a much diminished place in the world community.  Whatever Widodo may think, that is not in Indonesia's national interest.

The time has come for Australia to seek to exercise real regional leadership on this issue and mount a sustained campaign for the abolition of the death penalty. That will ensure an ongoing legacy for these two Australians executed in Indonesia.

Dr Christopher Ward (barrister and ANU College of Law Adjunct Professor) and Professor Donald R. Rothwell (ANU College of Law) were advisers on international law to Andrew Chan and Myuran Sukumaran.

Updated:  10 August 2015/Responsible Officer:  College General Manager, ANU College of Law/Page Contact:  Law Marketing Team