International law experts at the ANU have released legal advice on Indonesia's death penalty and found the punishment for drug offences breaches international law.
The legal advice was prepared by Professor Donald Rothwell from the ANU College of Law, and Dr Chris Ward, a Sydney barrister and Adjunct Professor at ANU, for the legal team representing Australians Andrew Chan and Myuran Sukamaran, who are on death row in Indonesia.
The legal advice is being released publicly after Indonesian officials gave official notification of the pending executions of the two men, alongside eight other prisoners from Brazil, Nigeria and the Philippines.
Australia's government has made regular calls for Indonesia to stop the executions and UN Secretary General Ban Ki-moon has appealed to Indonesia to spare the group from execution.
"This legal advice was originally prepared in 2007 and explores international legal arguments regarding Indonesia's imposition of the death penalty for drug offences," Professor Rothwell said.
"The United Nations Secretary-General on 25 April released a statement observing that Indonesia's imposition of the death penalty for drug-related offences is contrary to international law. This legal advice agrees with that position.
"As a signatory to the 1966 International Covenant on Civil and Political Rights, Indonesia may only impose the death penalty for the 'most serious crimes'. International law does not recognise drug trafficking as meeting this threshold.
"Indonesia must uphold the international legal obligations it has agreed to. These obligations are especially owed to those countries whose nationals are listed for execution including Australia and those other countries whose citizens are on death row including Brazil, France and the Philippines."
Chan and Sukamaran were convicted and sentenced to death in 2006 for their part in the so-called Bali Nine drug smuggling operation.
Legal appeals and calls for clemency to Indonesia's President Joko Widodo have so far failed.
A summary of the legal advice is attached below.
A SUMMARY OF INTERNATIONAL LAW ISSUES REGARDING AUSTRALIAN CITIZENS ON DEATH ROW IN INDONESIA
This note describes in summary form the main international legal arguments that arise from the proposed execution by Indonesia of Mr Sukumaran and Mr Chan. It is based on earlier work done on behalf of Mr Sukumaran and Mr Chan, and proceeds on the basis that all local remedies available to those Australians facing the death penalty in Indonesia have been exhausted. As such, Australia is now in a position to exercise diplomatic protection on behalf of its citizens, whose rights under international law would be violated if sentence of execution was carried out.
In summary, the proposed execution of Mr Sukumaran and Mr Chan is clearly inconsistent with Indonesia's treaty obligations to Australia and the international community.
1966 INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS
- Australia and Indonesia are both parties to the 1966 International Covenant on Civil and Political Rights (ICCPR). The ICCPR 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.
- Article 6 of the ICCPR relevantly provides as follows (emphasis added):
(1) 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.
(2) In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court.
- Although drug trafficking is clearly "a" serious crime, it cannot be characterized as "the most serious crime".
- As a party to the ICCPR, Indonesia is obliged under international law (including the general obligations of the 1969 Vienna Convention on the Law of Treaties (Article 26) and related customary international law) to perform its treaty obligations in good faith. It must perform its treaty obligations in a manner consistent with the fundamental international legal doctrine of pacta sunt servanda, and must interpret treaties "in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose" (Vienna Convention Article 31 (1)).
- In addition to these principles of treaty interpretation, an understanding of how Article 6 of the Covenant is to be interpreted can be found in the work of the UN Human Rights Committee. Human Rights Committee General Comment 6 (1982) emphasised that the right to life is not to be interpreted narrowly. With particular reference to the death penalty, General Comment 6 notes:
6. While it follows from article 6 (2) to (6) that State parties are not obliged to abolish the death penalty totally they are obliged to limit its use and, in particular, to abolish it for other than the "most serious crimes". Accordingly, they ought to consider reviewing their criminal laws in this light, and in any event, are obliged to restrict the application of the death penalty to the "most serious crimes". ...
7. The Committee is of the opinion that the expression "most serious crimes" must be read restrictively to mean that the death penalty should be a quite exceptional measure.
- In 1984, the UN Economic & Social Council adopted the "Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty" (endorsed by the UN General Assembly in resolution 39/118, adopted without a vote on 14 December 1984) which included the following:
- The view of the Human Rights Committee that the term should be interpreted restrictively confirms our opinion that drug trafficking does not constitute such a crime when it involves no prima facie harm or violence to another person. We concede that one of the possible consequences of the trafficking of drugs is self-abuse of the drug, possibly resulting in death. However, this is an event which is considerably removed from the actual trafficking of the drugs and ultimately involves an act of self-choice by the drug user.
- This argument is further strengthened when the drug trafficking at issue in this matter relates to a conspiracy to export drugs from Indonesia to Australia. There is in this instance such a considerable level of remoteness from the acts for which the accused have been convicted and the potential consequences of human harm and even possibly death that it is not possible to legitimately classify these acts as the most serious of crimes.
- In addition to the points noted above, it is strongly arguable that the proposed form of execution and the treatment of Mr Sukumaran and Mr Chan over time represents cruel, inhuman and degrading treatment contrary to Article 7 of the ICCPR. It is strongly arguable that the method of proposed execution, by firing squad, in a massed group of convicts and with large numbers of executioners, is cruel, inhuman and degrading. It is cruel and inhuman because it is an inherently painful method of execution with a serious risk of prolonged suffering (apparently requiring the possibility of a further single bullet to the head some minutes after the initial shots are fired). It is degrading because of the extraordinary process of execution in large groups, described by Indonesia as 'batches' in the presence of each other and before a massed group of executioners.
1. In countries which have not abolished the death penalty, capital punishment may be imposed only for the most serious crimes, it being understood that their scope should not go beyond intentional crimes with lethal or other extremely grave consequences.
2. Capital punishment may be imposed only for a crime for which the death penalty is prescribed by law at the time of its commission, it being understood that if, subsequent to the commission of the crime, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.
- Additionally, the treatment of Mr Sukumaran and Mr Chan, who have been subjected to prolonged suspense as to their status, and who have been given a period of ten years in which their execution was not a realistic possibility and during which time they have clearly and successfully rehabilitated themselves, is for that reason alone cruel inhuman and degrading. It also appears to be inconsistent with Indonesia's obligations under Article 10 of the ICCPR.
- Since early February 2015 Mr Sukumaran and Mr Chan have been faced with repeated public statements by the Attorney General that their execution is "imminent", "will not be delayed", may be "this week", and that "on-going legal processes would not be respected and would make no difference to their imminent execution." Those repeated statements have the cumulative effect of rendering the execution cruel or inhuman (Pratt & Morgan v A-G of Jamaica  2 AC 1 at 33; Supreme Court of India, Sher Singh & Others v State of Punjab  2 SCR 583).
- The proposed execution of Mr Sukumaran and Mr Chan when there remain two legal processes unresolved is in clear breach of Indonesia's obligations under Article 6 of the ICCPR.
- First, because the allegation of bribery that is yet to be resolved by the Indonesian Judicial Commission fundamentally affects the process of sentence upon which the proposed execution is based, in conflict with the obligation imposed by ICCPR Article 6(2) requiring a trial by a fair and impartial Court. No execution in accordance with ICCPR Article 6(2) could occur while that issue remains to be resolved.
- Secondly because Article 6(4) of the ICCPR requires that a process of commutation or pardon must be available to anyone sentenced to death. That right to commutation and pardon must be available in "all cases".
- It is entirely clear that the blanket refusal of pardon or commutation of sentence without reference to individual circumstances is inconsistent with Article 6(4). Mr Sukumaran and Mr Chan challenge the refusal by President Widodo to grant clemency without consideration of their circumstances in proceedings now before the Constitutional Court of Indonesia. Not only is the refusal to consider pardon a breach of Article 6(4), but the rush to execution before resolution of the Constitutional Court proceedings appears to be inconsistent with the rights guaranteed by Article 6(2).
ADDITIONAL LEGAL ARGUMENTS REGARDING THE DEATH PENALTY AND DRUG TRAFFICKING
- Australia has additional legal arguments that can challenge the imposition of the death penalty for drug trafficking based on the 1961 Single Convention on Narcotic Drugs. In addition, it is also arguable that the imposition of the death penalty in these circumstances is independently contrary to customary international law. Such an argument requires a broader assessment of the status of international human rights law, developments in international human rights law prohibiting the death penalty, and relevant state practice in the area.
- Australia and Indonesia are parties to the 1961 Single Convention on Narcotic Drugs. The 1961 Single Convention provides in Article 36(1) that:
"(a) Subject to its constitutional limitations, each Party shall adopt such measures as will ensure that cultivation, production, manufacture, extraction, preparation, possession, offering, offering for sale, distribution, purchase, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation and exportation of drugs contrary to the provisions of this Convention, and any other action which in the opinion of such Party may be contrary to the provisions of this Convention, shall be punishable offences when committed intentionally, and that serious offences shall be liable to adequate punishment particularly by imprisonment or other penalties of deprivation of liberty."
- In our view, the proper interpretation of the Convention is inconsistent with the imposition of the death penalty for serious offences as defined. Whilst it is clearly intended that the commission of a serious offence shall be the subject of an appropriately grave sanction, the repeated reference to the sanction of imprisonment or deprivation of liberty, consistent through the history of the 1961 Single Convention but also the related 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, leads to an overwhelming inference that the imposition of the death penalty is an inappropriate punishment.
That position is not affected by the traveaux preparatoire, which make it clear that it was the intention of the parties that narcotics trafficking be the subject of serious penalties which would adequately deter narcotics trafficking. Whilst it may well be the case that some of the parties to the Convention did, in 1961, retain the death penalty for narcotics offences, it does not follow that the Convention is capable of an interpretation permitting, today, the imposition of the death penalty for narcotics offences.