[TitoGrey]

Hello guys,

I have been recently very interested in the death penalty topic. However my interests are strictly legal and I keep away from any moral and religious discussion about that issue, maybe because it usually does lead to nowhere. I am personally against the death penalty because I find such kind of punishment as violating the most basic human right; this is the right to life. Over all these years that I have been interested in that issue I heard only one good argument worth consideration in favor for death penalty and it was the argumentation that the death penalty allows to restore the balance between the offender and the victim destroyed by the act of committing a crime (usually resulting in a death of the victim).

Here is an article devoted to legal aspects of death penalty under international law:
http://www.europeancourier.org/DeathPenalty.htm

And here is also another interesting article, which I recommend, this time about international influence on the application of death penalty in the USA:
http://www.deathpenaltyinfo.org/article ... 17&did=806

Take care,

[Zagadka]

Well, basically, there is no such thing as international law, only agreements between nations, which, even if broken, really can only be enforced by signatories. Thus, the UN's first and instantly fatal wound, the non-ratification of the Universal Declaration of Human Rights. Without the member nations being signatory, they are not subject to any of it, and it is just more UN fluff speak that holds no real meaning outside of idealism.

With the failure of the UDHR, or more specifically, the failure of the UN to have the balls to enforce it as binding to all countries, pretty much all international law on human rights fell/falls apart... and the UN becomes all the more pointless.

[Einherjar]

I have been recently very interested in the death penalty topic. However my interests are strictly legal and I keep away from any moral and religious discussion about that issue, maybe because it usually does lead to nowhere. I am personally against the death penalty because I find such kind of punishment as violating the most basic human right; this is the right to life.

What is the difference between a moral belief, a religious conviction and a right? All are human constructs, which have been essentially pulled from nowhere and based on nothing.

[Der Freiheitsucher]

However my interests are strictly legal and I keep away from any moral and religious discussion about that issue

I don't know if it's possible to discuss law without thinking of morality.

However, I think it's pretty much established that the death penalty goes against the Universal Declaration of Human Rights. It pretty much goes against human rights treaties, but they are treaties that the US doesn't adhere to. If they don't adhere to it, they are not binded by them.

the argumentation that the death penalty allows to restore the balance between the offender and the victim destroyed by the act of committing a crime

I think this is perhaps one of the lousiest arguments, based on some christian view of the law. I think the first thing that I disagree with is the idea that there is a balance to begin with. I don't think that when there is a crime committed, a balance tilts one way or another. I don't think that these are prizes or valuable items - I don't think that you can put a tag on the subject of a crime, it simply isn't compatible. Secondly, I think that "balancing out" the equation, even though as I said before I don't even think there's a balance, is simply vengeance. Law should not serve vengeance either, and this would be a great way to feed disorder. It's sort of the first step to letting people take the law into their own hands. If it's just to balance it out, why not just go yourself and rob the man who robbed you? There are a lot of sociological elements of the procedure of law that have a massive effect on society, and law cannot simply be reduced to a balance.

Well, basically, there is no such thing as international law

Huh?

only agreements between nations

Not really, and this is a traditional mistake. The sources of international law are best found in Article 38 of the Statute of the International Court of Justice:

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

This means that treaties are a part of international law, but there's a lot more to it. I'll wait to see what it is that you mean by "there is no such thing as international law", because various things in your paragraph are... Weird. You're just being ignorantly simplistic with your generalizations on the subject.

What is the difference between a moral belief, a religious conviction and a right? All are human constructs, which have been essentially pulled from nowhere and based on nothing.

Hmmm? I wont try to answer the first question, not only because it's obvious, but because this isn't the forum and the answer could be longer than what I want to invest in this post. I think, however, that you'll find that you're quite wrong with the second bit of your post, since these "human constructs" haven't been "essentially pulled from nowhere and based on nothing". These "human constructs" have hundreds of years of theory and philosophy behind them, and it's not like someone one day decided that we would rights from now on, and this was just because he decided this. Perhaps I don't know what you mean, because again, this seems ignorantly and overtly simplistic.

[Zagadka]

Not really, and this is a traditional mistake. The sources of international law are best found in Article 38 of the Statute of the International Court of Justice:

Which is funny, because the ICJ is itself a treaty that has to be ratified by the nation before it applies. The reason the ICJ and ICC are ineffectual is because countries 1) don't want to surrender their own criminal citizens to face international law, and 2) want to punish the people they capture on their own terms, a la the Gitmo military tribunals. In ICC/ICJ, the vast majority of those prisoners would be free, but the US isn't a party to it and refuses to cooperate with it, rendering it impotent.

[Wilhelm]

DF:

International Law is not 'law' in a strict sense, as it can be followed or ignored at the free will of the states.

For instance. The Inter-American Court of Human Rights received a petition from the Inter-American Comission, in which it was asked to declare that the rights of Mr. Winston Caesar, a citizen of Trinidad and Tobago, had been violated.

Mr. Caesar had been convicted of rape, and sentenced to flogging with a cat o' nine tails. In order to avoid the penalty that would be imposed on them, Trinidad and Tobago withdrew from the American Convention of Human Rights. This, to the Court, did not matter, because the violation of human rights had occured before Trinidad had withdrawn its acceptance of the jurisdiction of the Court.

The Court held, unanimously, that Mr. Caesar had been subjected to degrading punishment, in violation of the Convention. The country was ordered to pay 50.000 dollars to Mr. Caesar, and provide medical and psychological attention, in order to repair the damages caused to him.

However, it seems that Trinidad and Tobago will not comply with the judgement, as they do not recognize it as a legitimate judgement.

Judge Antonio Cancado Trindade, in his separate opinion, stated the following:

68. Despite its non-appearance , Trinidad and Tobago remains bound by the Court's Judgments in all these cases: though rendered after its denunciation of the American Convention, they pertain to acts taken by the State before the denunciation, in accordance with the terms of Article 78 of the American Convention. Together with the subsequent Judgments on the merits and reparations, the Court's decisions remain all binding upon the respondent State, and an eventual failure of this latter to comply with the Court's Judgments on the merits and reparations in those previous cases and with the present Judgment in the Caesar case, would amount to an additional violation of the American Convention (Article 68), as well as of general international law (pacta sunt servanda), with all the juridical consequences attached thereto.

Now, what are those juridical consequences? More judgements coming from the Court? What happens if Trinidad simply decides to ignore the Court and keep on flogging its people? Absolutely nothing, as there is no physical force to back up the decisions made by the Court, which differs from 'national' law in which the consequences can also be physical. For instance, in Colombia, if one does not comply with a tutela judgement, one can be arrested and sent to prison.

Another example: Guantanamo. What would have happened if the United States Supreme Court had ruled the other way in Hamdan v. Rumsfeld? The United States would have kept on violating International Law (Geneva Convention and the like) unpunished. Only political pressure, in the form of rhetoric, would have served to stop human rights violations, and that is very different from law enforcement.

What about the Iraq war? It was an illegal war, seeing as the UN Security Council did not approve the invasion. But, who stopped the US from invading?

International law only exists insofar as the states will find it convenient to comply with it. The efectiveness of International Law relies on the good will of the states.

Therefore, I agree on the following:

there is no such thing as international law, only agreements between nations, which, even if broken, really can only be enforced by signatories

Also, as Zagadka said, bear in mind that the ICJ statute is an international treaty from which the system of sources you just described comes from. The existence of jus cogens, as a binding international custom, is derived from treaties such as the Vienna Convention and the Statute of the ICJ. Therefore, the the validity of International law derives from some basic treaties, and International Law can be reduced to such treaties. Proof of that is your argumentation based on the text of the Statute of the ICJ and nothing else.

To me, International Law is more political rhetoric than law.

Now, going on to the original post.

I am personally against the death penalty because I find such kind of punishment as violating the most basic human right; this is the right to life.

That is a weak argument. If held ad absurdum you could easily conclude that criminal punishment is wrong, because it violates another basic human right: liberty.

Your statement comes from an underlying assumption of human rights as legal rules. They are not rules but principles. The difference is that a rule is followed or broken, whereas a principle is fulfilled to its maximum extent.

Constitutional law and Human Rights law is all about balancing out the principles, as principles tend to collide with each other. So you have a murderer's right to live, and you have a whole society's right to be protected from crime. One useful way to protect from crime would be to implement the death penalty in order to deter future criminals.

There is no easy answer to this, and the search for an answer would take us to a political, sociological and economical debate, which is not what the Law Forum is about. So, we'll just take for an answer that the individual's right of life tends to prevail, based on the dispositions of international law, and the national law of many states.

Death penalty was found unconstitutional in South Africa:

[144] The rights to life and dignity are the most important of all human rights, and the source of all other personal rights in Chapter Three. By committing ourselves to a society founded on the recognition of human rights we are required to value these two rights above all others. And this must be demonstrated by the State in everything that it does, including the way it punishes criminals. This is not achieved by objectifying murderers and putting them to death to serve as an example to others in the expectation that they might possibly be deterred thereby.
[145] In the balancing process the principal factors that have to be weighed are on the one hand the destruction of life and dignity that is a consequence of the implementation of the death sentence, the elements of arbitrariness and the possibility of error in the enforcement of capital punishment, and the existence of a severe alternative punishment (life imprisonment) and, on the other, the claim that the death sentence is a greater deterrent to murder, and will more effectively prevent its commission, than would a sentence of life imprisonment, and that there is a public demand for retributive justice to be imposed on murderers, which only the death sentence can meet.
[146] Retribution cannot be accorded the same weight under our Constitution as the rights to life and dignity, which are the most important of all the rights in Chapter Three. It has not been shown that the death sentence would be materially more effective to deter or prevent murder than the alternative sentence of life imprisonment would be. Taking these factors into account, as well as the elements of arbitrariness and the possibility of error in enforcing the death penalty, the clear and convincing case that is required to justify the death sentence as a penalty for murder, has not been made out.

It later held that no one could be extradited to another country that does impose the death penalty, without a safeguard against the implementation of it.

The European Court of Human Rights has held that the death penalty can be applied, as long as it is preceded by a fair trial, and is applied restrictively, in the fashion of the Protocols signed by the members of the EU. See Ocalan v. Turkey.

Just as the South African court did in the cited case, the European Court, in the case of Soering v. The United Kingdom, protected a German citizen from being extradited to the United States, as there were no effective safeguards to prevent him from suffering the death row phenomenon.

There is a general trend in abolishing the death penalty, but some States, such as the USA, continue to give it a widespread use, which is just proof of what I wrote before about the ineffectiveness of international law.

[Der Freiheitsucher]

Which is funny, because the ICJ is itself a treaty that has to be ratified by the nation before it applies.

Proof of that is your argumentation based on the text of the Statute of the ICJ and nothing else.

I thought that quoting the Article might be confusing. I'm not quoting Article 38 to say "see? this is what it says!". What I wrote above is that the sources can be found there. Article 38 is just the traditional way of international lawyers to point out what the sources are, independent from the ICJ. You can find these sources elsewhere, but Article 38 just summarized them.

Now, okay... Step by step...

The reason the ICJ and ICC are ineffectual is because countries 1) don't want to surrender their own criminal citizens to face international law, and 2) want to punish the people they capture on their own terms, a la the Gitmo military tribunals. In ICC/ICJ, the vast majority of those prisoners would be free, but the US isn't a party to it and refuses to cooperate with it, rendering it impotent.

There's a massive correction to be made here - First of all, the ICJ doesn't try people. The subjects of the ICJ are States. I'll come back to this. Second, the ICC hasn't entered into force yet, so no person has ever been requested by the ICC either. I don't see how the things you pointed out are the reason that both courts are ineffective, while they don't even apply.

Now, about the ICJ that is into force. You'll be surprised to know that the Court's rulings are always followed. They are usually about geographical dispute, and in this way they are usually followed. It is in country's best interest to suscribe to the ICJ, and hence they obey their sentences. I can hardly see how all of this makes the ICJ impotent.

International Law is not 'law' in a strict sense, as it can be followed or ignored at the free will of the states.

Quite the contrary - International law is law in the strict, formal sense. It's in the material sense that it tends not to be. But not because of these reasons - A country cannot ignore a treaty or act freewillingly about it. That is the idea behind pacta sunt servanda. What you mean is that if he breaks a treaty, there will be no way to force him. Two things to say about this. The first is that countries that break agreements are reprimanded in the vast majority of cases. Secondly, that international treaties are followed and complied with in the vast majority of cases.

What happens if Trinidad simply decides to ignore the Court and keep on flogging its people?

I seriously don't know... I hope it has legal sociological consequences, though.

International law only exists insofar as the states will find it convenient to comply with it. The efectiveness of International Law relies on the good will of the states

I see this paragraph as internally contradictory. While the first part I compleely agree with, the second part is wrong in most cases. Countries find it convenient to comply with international law in most cases, and this convenience has nothing to do with "good will", and in some cases, it has to do with the contrary. What you're trying to say is that international law has no way of physically enforcing itself, which somewhat true, but this just means that it lacks an international ius puniendi. This has nothing to do with the existance of the law itself, its validity or the responsability it conveys.

Therefore, the the validity of International law derives from some basic treaties, and International Law can be reduced to such treaties.

This is quite wrong. I don't know if you understood from my previous post that the sources of IL for the Court were the following. Again, such sources are simply stated briefly and concizely in the Article, so international lawyers just use it as reference. It has nothing to do with the ICJ itself. Though a big part of international law are treaties, it would simply be wrong to "reduce" it to them.

To me, International Law is more political rhetoric than law.

To me, it's more economics than law. However, people like to cite dramatic examples of States violating treaties such as the Iraq war because these seem plentiful and powerful. International law is far more effective than what Zagadka or you think, and there's certainly a lot of imprecisions and errors in his assessment of IL.

The question has never been whether international law works or not, it's clear that it works for the vast majority of cases (hey - the same can be said for any type of law), the question should be why international law works. This would be a lot more interesting.

[Wilhelm]

Second, the ICC hasn't entered into force yet, so no person has ever been requested by the ICC either.

Yes it has. It entered into force in 1998. The Prosecution has already started four investigations: Darfur, Congo, Central African Republic and Uganda. And the first arrest warrant ever to be issued by the ICC is about to not be carried out. The warrant has been issued against the leader of the LRA in Uganda, and he has threatened to break off the peace negotiations if he is arrested and sent to the ICC. Aside from this internal discussion, what do you think will happen if Uganda does not comply with the arrest warrant?

I see this paragraph as internally contradictory. While the first part I compleely agree with, the second part is wrong in most cases. Countries find it convenient to comply with international law in most cases, and this convenience has nothing to do with "good will", and in some cases, it has to do with the contrary. What you're trying to say is that international law has no way of physically enforcing itself, which somewhat true, but this just means that it lacks an international ius puniendi. This has nothing to do with the existance of the law itself, its validity or the responsability it conveys.

I find that contradictory. How is it that the absence of physical force has 'nothing to do' with the responsibility it conveys?

The question has never been whether international law works or not, it's clear that it works for the vast majority of cases (hey - the same can be said for any type of law)

The vast majority of cases being 'easy' cases. If a weak state does not comply with a treaty, they'll be reprimanded, they can even be threatened with sanctions and war. They will be under international rule of law. But what happens when a strong one violates international law? It depends. If it finds it convenient to comply, it will accept some economical consequences and the like. Otherwise, it can simply ignore it.

people like to cite dramatic examples of States violating treaties such as the Iraq war because these seem plentiful and powerful

The example is plentiful and powerful. It tested how really effective could International Law be. In the past, it has 'worked', because its contents are in accordance with the political will of many States. But it cannot work in the cases where its working would be most important. If the strong ones can simply brush the law aside, it cannot be called 'law'. The whole point of the law is about being neutral, impartial, and dominating individual interests, avoiding private justice and enforcing itself through physical coercion if needs be.

Sure, it works in 'most' cases. Most cases are about third-world countries fighting over boundaries. But that is not enough, because that whole appearance of an 'effective' International Law is broken when the powerful ones decide to break it without any consequences to it.

In those cases, it is no more law than a Sunday sermon at a church is.

[Der Freiheitsucher]

Yes it has. It entered into force in 1998.

No. It was finished in 1998, but it couldn't enter into force until at least 60 countries signed it, something which didn't happen until 2002. However, this same year the USA withdrew its signature and practically killed the Rome Statute.

This means that right now there's a lot of confusion on whether the ICC is legitimate or not. Furthermore, any investigation on its hands has been passed on by other tribunals. The ICC has "lived" for 4 years and has done nothing of its nature.

To be honest this surprises me, I honestly though that the ICC was still a dead fish. I guess it's working, though, and although it has no relevance to the point, it does have relevance to this:

The vast majority of cases being 'easy' cases.

The vast majority of cases in any legal system are "easy" cases. This doesn't mean that any other legal system doesn't have difficult ones, and resolves them, just as the ICJ has done. It's not an argument to say that the ICJ only solves easy cases, because it's simply not true, and it's quite subjective, and while it's true that most of its cases could be seen as "easy", it's as true for any other legal system.

Otherwise, it can simply ignore it.

Yes. This has been obvious all the time. However, I still can't see why people attck international law when one State, such as the USA, refuses to comply with a treaty. This kind of thing exists in every other legal system, in one way or another. International law is simply more mediatic and gets more headlines. International law is as effective as municipal law. It would be terribly naive to assume that municipal law all over the world is flawless, just, precise and punishes everyone. Like I said, this shouldn't be the question, but why it is should be the point of discussion.

The example is plentiful and powerful. It tested how really effective could International Law be.

It seems rather silly to discard international law as a whole simply because the USA went to war. This "simply" may sound quite big to you, but it's just that the issue gets a lot more press. That's just a sociological issue. In strict legal terms, law is a lot more effective, and just because in one case they went over some treaty it doesn't mean that international law doesn't work. I should also point out that the war in iraq was arguably legal, and they USA says it was legal, so I don't even see how this is a case to discard international law.

All these responses seem rather naive at how law works in municipal courts. International law is as effective as municipal law, and both have their flaws. Why attack the former as if it was special, and not criticize the procedure of law as a whole? This isn't a problem of international law, it's a problem of international lawyers who apply it.

I find that contradictory. How is it that the absence of physical force has 'nothing to do' with the responsibility it conveys?

Because of you rob a bank, you're guilty whether they catch you or not. It's ilegal even if there is no physical way to reprimand it.

[Wilhelm]

It would be terribly naive to assume that municipal law all over the world is flawless, just, precise and punishes everyone.

Sure, no law is 100% effective, but national law works at a much higher degree than international law.

Because of you rob a bank, you're guilty whether they catch you or not. It's ilegal even if there is no physical way to reprimand it.

Well, if you have pre-marital sex, it is immoral even if God does not really exist, and even if you are not really going to hell.

Law is non-existent if it does not enforce itself. In that case, it can only be seen as an amount of moral guidelines that you can choose to follow or not.

[daniel86]

I don't think it is possible to discuss about death penalty only on juridical basis.
Anyway I want to say what I think about this topic.
Death penalty in my opinion should be abolished, punishment should be a way to change people, to let them become different human beings not a revenge