capital punishment comparing vietnamese and singapore criminal law

The scope of application of the death penalty has beennarrowed.1 However, the practical application of the death penalty in Viet Nam and theimpact of the process of international integra

Joint Swedish-Vietnamese Master’s Programme

MASTER’S THESIS

Capital Punishment: Comparing Vietnamese and Singapore

Criminal Law

S UPERVISORS :

P ROFESSOR NGUYEN NGOC HOA

P ROFESSOR P ER OLE TRASKMAN

H ANOI 2009

I thank my family above all for their love and care; they have all helped me become theperson I am today I thank the Hanoi Law University, the Faculty of Law, University of Lundand the Swedish International Development Cooperation Agancy (Sida) for giving me theopportunity to advance my education More specifically, I greatly thank all the professors inthe Faculty of Law, University of Lund and the Hanoi Law University, who enthusiasticallytaught me during this course I especially thank Professor Nguyen Ngoc Hoa and ProfessorPer Ole Traskman, who were patient in their supervision and supported me as I worked onthis thesis

Table of Content

Page

Acknowledments

Table of Contents

Executive Summary

2 3 4 1 1.1 1.2 1.3 1.4 2 2.1 2.2 2.3 3 3.1 3.2 4 4.1 4.2 5 Introduction

Rational

Research purpose and scope

Statement of the problem ………

Methodology

An overview of capital punishment Capital punishment: some questions of theory

The international law on capital punishment

Trends of regulations on capital punishment in the criminal law of countries ………

Comparing regulations of the Vietnamese Criminal Law with regulations of the Singapore Criminal Law on the death penalty Comparing general regulations on capital punishment …

Comparing regulations of the Vietnamese Criminal Law with regulations of the Singapore Criminal Law regarding the death penalty The practice of application the death penalty in Viet Nam and Singapore and recommendations for Viet Nam ……….

The practice of application the death penalty in Viet Nam and Singapore………

Some recommendations for Viet Nam

Conclusion ……….

Table of legal Instruments and Judical Practices ………

Bibliography ………

5 5 5 6 6 7 7 15 20 25

25 31 40 40

42 44 46 47

Executive Summary

The question of the death penalty presents some of the most interesting issues in criminallaw It is important to study such legal questions as whether the use of the death penalty is aviolation of international law or not? Or what can we do to ensure Vietnamese Criminal Law

is in harmony with the laws of other countries and regions on the death penalty? Thesequestions will be studied in this thesis

I review the theories of capital punishment: key notions, features, and purposes andwill identify arguments for and against the death penalty

I analyze international law on the death penalty This part will show how internationallaw does indeed regulate the death penalty I will consider whether international law prohibitsthe use of the death penalty or not?

I examine trends regarding the regulation of capital punishment in the criminal law ofother countries Is the trend towards abolition becoming international customary law or not?

I study conditions on the application of the death penalty and exceptions to its use Ofcourse, I focus on comparing the regulations of the Vietnamese Criminal Law with theregulations of the Singapore Criminal Law on the death penalty in criminal

The thesis examined the situations of application on the death penalty in Viet Namand Singapore Moreover, I also try to identify some problems on the application of the deathpenalty in Viet Nam

Final, my thesis recommends some proposals for reforming Vietnamese CriminalLaw on the death with a view to limiting the use of the death penalty in Vietnam

be limited in its scope and use In the field of legislation the number of regulations that carrythe death penalty has reduced by 33% (from 44 Articles in the Penal Code 1985 to 29

Articles in the Penal Code 1999) The scope of application of the death penalty has beennarrowed.1 However, the practical application of the death penalty in Viet Nam and theimpact of the process of international integration, have raised issues that may entail a need toreform the criminal law so as to limit use of the death penalty and perhaps abolish it entirely

in the future

The death penalty has been used a great deal in Southeast Asia but now many

countries, such as the Philippines, Laos, Brunei and Cambodia are abolishing the death

penalty The tendencies to maintain and abolish the death penalty seem to be equally

balanced in the region To find out more about the death penalty in Viet Nam it helps to look

at the criminal law of a country that also maintains the death penalty, namely, Singapore Thecomparison between Vietnamese and Singapore Criminal Law is especially useful becausethe cultural and social backgrounds of Vietnam and Singapore are similar By making thecomparison, we can better understand the criminal law of Viet Nam, reform it and make itsprovisions consistent with international law and laws in other countries in the region andelsewhere in the world

1.2 Research Purpose and Scope

The purpose of this thesis is to propose some recommendations for Vietnam as it goes aboutreforming its criminal law It will study the theories supporting the death penalty, argumentsfor and against it and international law on the death penalty The focus is on comparing theVietnamese with the Singapore Criminal Law and the international law so far as relates to thedeath penalty After this comparison and examination of the practice of the death penalty inVietnam, this thesis will draw some conclusions

For the provisions of the Vietnamese Criminal Law, we study the Vietnamese PenalCode (1999) For the provisions of the Singapore Criminal Law, we study the Penal Code, theMisuse of Drugs Act, the Arm Offences Act, the Internal Security Act, the Kidnapping Actand the Criminal Procedure Code For international law, we review international laws andregional agreements on the death penalty

1 Article 35 of the Vietnamese Penal Code

Statement of the Problem

The death penalty has been used commonly in most countries but there are now differentopinions on this class of punishment Since the 18th century the there have been two trends,one for and one against capital punishment The conflict between those trends is severe and isbecoming more and more so The main questions that arise in this conflict, are (1) should weapply the death penalty at all? (2) If so, how should we use the death penalty?

In Vietnam, the process of reforming criminal law is to continue Questions on thedeath penalty are of interest It is important to study such questions as whether the use of thedeath penalty is a violation of international law or not? Or is Vietnamese Criminal Law isharmonious with the laws of other countries and areas on the death penalty? These questionswill be studied in this thesis

It is not easy to deal clearly with the questions Answers depend on many elements:awareness of the role of capital punishment, cultural values, and specific conditions in eachcountry To deal with these issues, the thesis considers five questions: first, study the deathpenalty in theory; second, examine international law on the death penalty; then, examine thetrends regarding the death penalty; next, compare Vietnamese Criminal Law with the

Singapore Criminal Law on capital punishment; and finally, draw conclusions and proposereform to Vietnamese Criminal Law regarding the death penalty.

1.4 Methodology

The main methodologies used in this thesis are logical analysis and the comparative method.Logical analysis is used to identify the concept of the death penalty and its features and toargue for or against the death penalty The thesis then analyzes provisions of internationallaws to find out whether they prohibit the use of the death penalty For this, the method ofinterpretation was used to find the true purpose of the legal documents studied

This thesis concentrates on the comparative method when compare the regulations ofthe Vietnamese Criminal Law and those of the Singapore Criminal Law, and of internationallaw on the death penalty The comparisons focus on the scope of the use of the death penalty,exceptions to the use of the death penalty and capital crimes The thesis finds differences andsimilarities between Vietnamese Criminal Law, Singapore Criminal Law and internationalLaw The thesis tries to explain these differences and similarities The thesis ends with someconclusions and other remarks

2.1

An Overview of Capital Punishment

Capital Punishment: Some Questions of Theory

2.1.1 The Definition of Capital Punishment

Capital punishment has existed for many centuries In ancient times, several Eastern statesused capital punishment as can be seen from the Hammurapi Code (Babylon) and the ManuCode (Indian) In the West, it was provided for in the Roman Law of the Twelve Tablets Inmedieval times, capital punishment was used commonly in such diverse places as China,Vietnam, the Europena states,2 etc The death penalty was applied far and wide; it seemed away to take a just revenge on offenders

In modern times, there has been a major change since the French bourgeois

Revolution of 1789 The scope of application of capital punishment was reduced and it wasonly applied for the most serious crimes

Today, although the worldwide movement towards abolition has proceeded at anincreasing pace; it is not only the trend in the world There are 91 countries which are

abolitionists for all crimes, 11 are abolitionists for ordinary crimes, 33 are abolitionist defacto while 62 countries retain the death penalty.3

Although the death penalty has been widely applied, there is no single perspective onthe death penalty According to the US Supreme Court, it penalizes those convicted ofcertain classes of crimes by killing them.4 This emphasized the substance of the death

penalty: offenders die The death penalty is a punishment that can take away the life ofoffenders Anther view of the death penalty assumes that “the penalty of death for a personconvicted of a serious crime, such as intentional murder, is called capital punishment”.5 Thisconcerns both the scope and the consequence of the death penalty it makes clear that thereshould be some proportionality between offence and penalty

In Vietnam, the Penal Code (1999) does not provide any view regarding the deathpenalty It only provides for its scope and exceptions to its application.6 Thus, there areseveral ways to define the notion of the death penalty In general, the death penalty means apunishment that is the strictest punishment in system of punishment, provided in penal code,applied by courts and only for the particular serious crimes to take away the life of

2

3 E.f., the Hittite Code

The Death Penalty Information Centre:

offenders.7 According to Dr Pham Loi, “Capital punishment is the strictest punishment insystem of punishment, provided in Penal Code, applied by courts and only for the particularserious crimes to take away the life of offenders.”8

This notion of capital punishment is large It include general feature of punishment and

particular feature of capital punishment.

Dr Pham Van Beo assumes that the death penalty is a special punishment, the

strictest punishment It takes the life of offenders and is only applied to offenders that are themost dangerous for society We see these views only concern particular features of the deathpenalty such as that it is for particularly serious crimes, and takes away the life of offenders

So we can see that the notion of capital punishment was consider mainly as a specialpunishment It has some particular features

2.1.2 Features of the Death Penalty

When comparing the death penalty with other punishments such as fines, imprisonment, lifeimprisonment etc, we can easily find differences between them It can be shown that thedeath penalty is a special punishment but it still has advantages and disadvantages like otherpunishments

First of all, the death penalty is the strictest punishment in the system of

punishment Other punishments take away the property or freedom of offenders but the deathpenalty takes away their right to life, the most important right a person Thus, the deathpenalty is the most terrible punishment for offenders though it is a consequence that

offenders have to face when they commit heinous crimes

Caesar Beccaria (1738-1794) assumed that the death penalty is not in fact the

strictest punishment and that perpetual slavery is harder than capital punishment It wouldthen be a more effective deterrent than capital punishment

“A steady example over a long period of time is more effective in creating moral habits

than is a single shocking example of an execution Beccaria argues that perpetual slavery

is a more effective deterrent than capital punishment From the spectator’s

perspective, observing perpetual slavery will have a more lasting impression than capital

punishment Perpetual slavery will also seem more terrible from the vantage of the

spectator, than from the criminal himself” 9

The facts show the opposite of what Caesar Beccaria said The right to life is primaryand the most important for most people Everyone is afraid of execution Many offenders stopcommitting heinous crimes when recalling the death penalty

7

8

9

The Textbooks Vietnamese Criminal Law (2003), p.189

The death penalty and execution under Vietnamese Law (2001), p 20

The internet Encyclopaedia of Philosophy:

http://www.iep.utm.edu/b/beccaria.htm#Against%20Capital%20Punishment (accessed 02/10/2008)

Second, even in retention countries, the death penalty is only applied for “the mostserious crimes” There are several ways to interpret what are “the most serious crimes”;10each state governed by law should have the freedom to determine for itself what those crimesare.

Third, the death penalty deters crime Although there are many arguments against thedeterrence effect of the death penalty, many countries that maintain the death penalty believethat the deterrent effect is very strong The deterrent effect of the death penalty has two sides,individual and general deterrence

Individual deterrence means that the death penalty prevents with 100% efficiency theperpetrator from committing more crimes A dead criminal can do no harm to any otherhuman being No more murders or violent crimes, rapes or robberies or any other devilish act

in this world And if every murderer were arrested after the first murder and sentenced todeath, there would no longer be any serial killers No country will of course achieve this ortry to But if a country introduces capital punishment and applies it fairly, serial killers andviolent criminals will be fewer This is an unavoidable fact

Someone may object and say that this is also the case with lifetime in prison Butthis is wrong In most countries life never really means life, but a certain number of years inprison and relapse after release is common Moreover, escapes usually lead to new crimes;sometimes acts of violence and murder take place during leaves or even in prison Example,the Vietnamese Penal Code (1999) Article 58 (3) provides that:

“A person may be entitled to many reductions but have to execute half of the declared

penalty For persons sentenced to life imprisonment, the sentence shall be commuted for the

first time to thirty years of imprisonment and despite reductions, the actual duration of

penalty served must be a minimum of twenty years”

There are many retention countries, which believe that the death penalty deterssome people from committing heinous crimes.11 This is the general deterrent effect of thedeath penalty Executing offenders has an effect on other people: they receive a warning -unless they refrain from heinous crimes they may face the death penalty This warningprevents some people from committing serious crimes However, far from everyone will bedeterred because of the death penalty.12 Abolitionists focused on this feature of the deathpenalty and they assume that there is no evidence of the general deterrent effect of the deathpenalty.13

10 In recommendations of The Human Rights Committee of the ICCPR (HRC) and in “Safeguards

guaranteeing protection of the rights of those facing the death penalty” adopted by Economic and Social Council resolution 1984/50 of 25 May 1984.

Donohue, John J And Wolfers, Justin, The Death Penalty: No Evidence for Deterrence, 2006,

Economics’ Voice, www.bepress.com/ev/vol3/iss5/art3/ ( accessed 28/11/2008)

Finally, we have to face the virtual certainty that genuinely innocent people mayexecuted and that there is no possible way of compensating them for this miscarriage ofjustice There is also another significant but much less realised danger here A person

convicted of murder may have actually killed the victim and may even admit having done sobut does not agree that the killing was murder Often the only people who know what reallyhappened are the accused and the deceased It then comes down to the skill of the prosecutionand defence lawyers as to whether there will be a conviction for murder or for manslaughter

It is thus highly probable that people are convicted of murder when they should really havebeen convicted of manslaughter only So the death penalty has risks even when applied toactual offenders That is a disadvantage of the death penalty The abolitionist always relies onthis aspect of the death penalty

We view the death penalty as we do other punishments It has advantages and

disadvantages However, people who are against the death penalty only focus on the

disadvantages while people who for it only focus on the advantages If this were correct, itwould seem both of them are wrong We must be able to argue both for and against the deathpenalty

2.1.3 Grounds For and Against the Death Penalty

Since the 18th century, opinions regarding the death penalty have been in conflict; somefavoured abolition, others retention There were many grounds raised when arguing for andagainst the death penalty but the key ones were based on philosophical and practical

foundations The right to life and the right to punish were the two main philosophical

foundation The practical foundations focussed on its deterrent and brutalizing effect

The right to life

The right to life is a fundamental right and surely the most significant right a personhas It is received largely in every countries However, it is not easy to understand what theright to life is The right to life was usually understood in two ways

First, the right to life is a natural right It cannot be taken away by anyone, that is, it

is conceived of largely negatively as right not to be deprived of life According to HugoAdam Bedau, all such live have value even the live of murderers and a murderer as having alife to live that is on balance more valueable than not.14 People opposed to the death penaltyassume that the right to life is "an inalienable attribute of human beings" and the "supremevalue in the international hierarchy of human rights" and this is guaranteed by legally bindingstandards at universal and regional level"15

14Bedau, H A., “Abolish the death penalty even for the worst murderers” in The Killing State, Oxford,

1999, pp 41, 42

15 Explanatory Report to Protocol No 13 to European Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the abolition of the death penalty in all circumstances (1)

http://conventions.coe.int/Treaty/en/reports/Html/187.htm

Right to life become a negative right It means that life is protected from any

deprivation of life Oppositionists believe that “life is a gift that the Lord has given us, and

we must protect it from conception until nature death God has given us life and only Godcan take it away the death sentence is not a natural death”.16 So the use of the death penalty

is a violation of the right to life This opinion was received in Europe and some countries thatabolished the death penalty

Second, right to life can be seen as a positive right.17 It is not a complete right Thisright to life must then be protected from being arbitrarily taken If a state governed by lawvalues man - the victim of a crime - with the highest level of respect, then any actions thattake it away illegally must be punished The punishments may even include the application

of the death penalty to capital offenders Thus, the right to life of offenders is limited orforfeited so as to save the right to life of other people So, the right to life is not unqualified

Thus, the right to life is not an absolute right without limitations The right to life istalked by State (under their laws) if offenders commit the most serious crimes In this case,

we can say that offenders took their own right to life themselves John Locke assumed thateven if the right to life is “natural” and inviolate, the murderer forfeits his life and so

putting him to death at most infringes.18They took their own lives themselves; they have noright to life when they commit capital crimes

The death penalty corresponds to what such capital offenders have done And thedeath penalty has deterrent effect crimes In this case, it seems that the death penalty, as aninstrument, serves to protect the right to life Anderson argues, "Through the death penaltythe respect for man's inviolable value is kept".19 It is worth to use the death penalty if we cansave more than live of people in society

We can see that whether one supports or opposes the death penalty depends on howone understands the right to life If a person assumes the right to life is always inviolable, he

or she will be against the death penalty If they assume the right to life is limited, they will befor the death penalty These differences are also linked to the different backgrounds, culturesand interests of different countries

The right to punish

The right to punish is the right of states to punish offender including by way of

execution The right to punish stands in opposition to the right to life when states apply thedeath penalty To protect the interests of the community, the order of society and justice,states have the right to punish any offender In capital cases, states can apply the death

penalty to them Offenders have to bear the judgment of their state They lose their life ifthey commit capital crimes.

Why do states have the right to punish? The source of this right is the sovereignty ofthe state Under a social contract theory, as part of the contract that was entered into betweenpeople in a society, states represent the people and administer society Thus, states havesovereignty and can punish offenders Under the social contract, people want to protect theirlife by way of laws, and states can even execute people who are capital offenders JeanJacques Rousseau wrote that:

"People generally want to be protected in their life by states, they will sacrifice their life

when necessary Execution seems to work like this If people do not want to become

victims of murderers, they should be executed when they kill others." 20

People that are against the death penalty assume that the death penalty could not becontained in an original civil contract.21 If this were so, the use of the death penalty would not

be legitimate On this question, Rousseau assumes that although there are no specific clausesthat states can execute capital offenders, people have to agree to this if they want to protecttheir life.22

In Viet Nam, under the theories of Marxism - Leninism, laws express the will of thedominant class Laws are generally the instruments of the dominant class to help them

dominate society and protect their interests first.23 In fact, the death penalty is an instrument

of dominant class to maintain their domination

I Kant (1724-1804) believed that states need to punish offenders to protect justice.The death penalty is necessary to save society "It is better that one man should die than thatthe whole people should perish For if justice and righteousness perish, human life would nolonger have any value in the world."24 So he seems to value the interests of the communityabove the individual

The degree of punishment must be proportionate to the crime This is the principle ofequality "If you slander another, you slander yourself; if you steal from other, you steal fromyourself; if you strike another, you strike yourself; if your kill another, you kill yourself."25 If

a person engages in capital crimes he should thus be executed This is the right of retaliation(jus talionis)

Textbook of Theories of State and Laws (2001), pp 61, 62

See: Kant, I http://web.telia.com/~u15509119/ny_sida_9.htm

See: Kant, I http://web.telia.com/~u15509119/ny_sida_9.htm

However, this principle is not that of meeting "like with like" States do not do exactlywhat offenders did For example: hurt to offender when he hurt another or cut his hand if hesteals But state must use the death penalty for murderer to restore justice.

The retribution of states is different from the revenge of an individual According toNozick's retributivism,26 there are six differences between retribution and revenge: (i)

retribution is done for a wrong, while revenge may be done for an injury or harm that neednot be a wrong, (ii) retribution sets an internal limit to the amount of punishment, according

to the seriousness of the wrong, but revenge need set no limit, (iii) revenge is personal butretribution is governmental, (iv) revenge involves a particular emotional tone, pleasure in thesuffering of another but this is not so in the case of retribution, (v) revenge need not be

general in that it does not commit the revenger to avenging again in similar circumstances,(vi) retribution is only applied to the guilty but revenge can be applied to innocents

This point likes opinions that are common in Vietnam and Singapore Communityinterests are prioritized over individual rights, translated into development-oriented goals,with assertions that Singapore “has always weighted group interests more heavily than

individual ones”.27 This is deferent point between the Oriented Countries and the West

Countries In West Countries, they weighted individual right and assume that the sovereign ofstate should not infringe individual rights

The Deterrent Effect

According to the theory of punishment, punishment has the purpose of preventing crime andrehabilitating offenders The death penalty does not not the purpose of rehabilitation, but thedeath penalty (for those who support it) has the highest deterrent effect It is only providedfor in criminal law because of this deterrent effect However, this effect can be weak andsometimes does not even exist.28 The effect of prevention has two aspects: individual

prevention and general prevention

It is clear to see that the effect of the death penalty on an individual is maximal.Offenders that are executed have no chance to commit any further crimes Some people, whoagainst the death penalty assume that the life imprisonment without pardon and the deathpenalty are the same so far as individual deterrence is concerned This is not necessarily thecase We cannot be sure that offenders, who are in prison, will not to commit crimes again.They can be released and then commit crimes or they can harm staff and inmates while inprison The death penalty is the only kind of punishments that can absolutely deter the

offender from committing any further crimes and is thus the greatest specific deterrence

General deterrence is the most important reason for using the death penalty The idea

is that executing persons, who are capital offenders, prevents other similarly disposed

individuals from doing the same Jeremy Bentham was its chief proponent, and he startedfrom the position that all punishment is pain and should therefore be avoided However,punishment might be justified if the benefits (in terms of general deterrence) would outweighthe pain inflicted on the offender punished assuming lesser punishments would not be

sufficient to deter others from committing this kind of offence The assumption is that

citizens are rational being, who will adjust their conduct according to the disincentives

provided by sentencing law The same assumption leads to a belief in marginal deterrence –increasing penalty levels by a certain amount will result in a decline in offending.29

Economists such as Isaac Ehrlich, Richard Posner, and Ronald Clarke have developed

a model crime theory This theory explains crime as a process of rational choice by a personbetween legal and illegal behavior These choices are influenced by how law enforcementreacts to illegal activities Rationality, Ehrlich argued, would influence would-be offenders toavoid punishment and forego crime.30Punishment is one of the risks that people have to bearwhen they commit crimes They compare the results of possible punishment to their owninterests before they decide to commit a crime or not If punishments are strict they will notcommit crimes So, the death penalty forces other peoples to avoid capital crimes Ehrlichassumes that “One execution saves eight innocent lives.” 31

Haag argues about deterrence and how it can be used to support the death penalty InHaag's view, deterrence derives a positive from negative The negative is that a guilty personshall die The positive is innocent persons shall live.32 This is so because someone else whowanted to commit the same crime will now be afraid to go though with it, because of theharsh punishment

In Vietnam, most people assume that it is necessary to maintain the death penalty.33Article 27 of the Penal Code (1999) stipulated: “Penalties also aim to educate other people torespect laws and prevent and combat crimes." According to Prof Nguyen Ngoc Hoa,

punishments (including the death penalty) generally prevent crimes in two ways First, forpeople inclined to commit offences, punishments warn them and prevent them from actuallyengaging crime It educates them to see the need to abide by the rules of social life thatattempts to remove offenders or more careful in the hearing to avoid the hearing into histreatment of offenders Secondly, for others people, punishment has the educational purpose

of improving awareness of the law and encouraging people to struggle against and preventcrimes.34

Hubpages Inc : http://hubpages.com/hub/Death-Penalty

The death penalty and execution under Vietnamese, Pham Loi (editor), 2001, p 74

Prof Nguyen Ngoc Hoa (1999), p 11

In Singapore, warnings about the death penalty appear in public place to warn peopleoff http://en.wikipedia.org/wiki/Image:Singapore_Embarkation_Card.pngThe Singaporeembarkation card contains a warning to visitors about the death penalty for drug trafficking.The warning may consist of "warning: death for drug traffickers under Singapore law".Warning signs can also be found at the Johor - Singapore Causeway and other border

entries.35

The Brutalization Hypothesis

People opposed to the death penalty often argue that there is not enough evidence ofany deterrent effect has been found in studies conducted on it In fact, they suggest the

possible existence of an opposite reaction to the practice of capital punishment - brutalization.Whereas the deterrenct theory argue that the death penalty prevents violence from occuring,the brutalization theory assume that it in fact creates more violence

The brutalizing effect of the death penalty was recognized many years ago In 1764,Caesar Beccaria observed that "the death penalty cannot be useful because of the example ofbarbarity it gives men etc It is absurd that laws which are an expression of public opinionthat is opposed to homicide, should commit it and that to deter citizens from murder theyorder a public one" Nothing in the succeeding years has detracted from the truth of thatstatement.36 Other persons – such as Hans von Hentig, a distinguished German criminologist,say in respect to corporal punishment "there are no certain and lasting deterrent effect on theperpetrator The only thing certain is the brutalization of the punished, the inflictors of thepunishment, the public officials in their public capacity, and especially of the population."

The brutalization concept says that executions devalue human life and legitimizeviolence against people who appear to deserve it In other words, the hypothesis is that

executions subconsciously legitimize killing in the minds of offenders and the occurrence of

an execution is more likely to increase violence rates The theory of the brutalization effectassumes that when an execution occurs, there is an increase in violent thoughts or behavior inprison inmates and other offenders and this contributes to further violence

2.2 International Law on Capital Punishment

The question giving rise to many arguments is whether international law prohibits the use ofthe death penalty People against the death penalty argue that international law prohibits it.People who support the death penalty assume that international law does not prohibit its use Ifind that the international laws are unity to regulate about capital punishment There are fourtrends relating to capital punishment: a trend regarding the use of the death penalty, a trendtowards its limitation,a trend on safeguarding the rights of capital offenders and a trend infavour of abolition

First, international law does not prohibit the use of the death penalty We can say

that there are not any international convention to prohibit the death penalty However, somepeople also assume that the use of the death penalty is a violation the international law Cause

of that defference depend on the ways to understand Article 3 of The Universal Declaration

of Human Rights (1948)

It was the first time that international law spoke of the "right to life" The Universal

Declaration of Human Rights (1948) is also the primary source upon which those supportingthe abolition of the death penalty rely In fact, the Declaration is not a treaty and there are nostate partiesnor is it enforced as a treaty law However, the Declaration (at least part of it)have been deemed customary international.37Even so, many states have followed it in practiceand it serves as a common standard of acchievement for all people and all nations.38 TheDeclaration seem to exists as more of a moral statement than a legal document, but statesviolating this Declaration will be considered as in violation of customary international law

The Declaration provides for a "right to life" at Article 3 According to Article 3 ofthe Declaration everyone has right to life, liberty, and the security of person However, thephrase "right to life" is unclear Thus, many arguments about the "right to life" can arise

Peoples who are against the death penalty assume that the "right to life" is an absoluteright It is "an inalienable attribute of human beings" and "supreme value in the internationalhierarchy of human rights."39 No one can forfeit the "right to life" The death penalty is thusprohibited and its use is considered as a violation of international customary law

People who support the death penalty assume that the right to life has positive

meaning only States protect the right to life in two ways First, they punish everyone whodestroys the right to life of another person In this way murder is deterred and the life ofpeople in general is protected If this understanding is correct, then the death penalty isnecessary to protect the right to life Secondly, states have to follow their laws when

executing capital offenders Article 6 of the International Covenant on the Civil and PoliticalRights followed this meaning

I think that there are several ways to interpret Article 3 of the Declaration and it doesnot expressly prohibit the use of the death penalty Thus States that maintain the death

penalty do not violate it

The International Covenant Civil and Politics Right (1966)40: this treaty does notprohibit the use of the death penalty It only protects the “right to life” from being arbitrarilytaken away.41The right to life was considered as a positive right According to Article 6 (2),(6) of the ICCPR states can use the death penalty for the most serious crimes.

Second, international law does limit the use of the death penalty The limitations

imposed by international law are of three kinds: providing cases the death penalty does notapply to, limiting the scope of the use of the death penalty and safeguarding the rights of thecapital offenders

First aspect, international law provides cases that the death penalty shall not apply to.

Those cases usually concern persons under eighteen year old or pregnant women According

to article 6 (5) of the ICCPR, the death penalty shall not be applied for crimes committed bypersons below eighteen years of age and shall not be carried out on them If a person

committed capital crimes when under eighteen, they should not suffer the death penalty Andpregnant women cannot be executed in any case The ICCPR does not provide for offendersthat are mentally ill, over seventy years old and new mothers

The Convention on the Right of the Child:42 according to the preamble to the

Convention, state parties agree that "recognition of the inherent dignity and of the equal andinalienable rights of all members of the human family is the foundation of freedom, justiceand peace in the world" and "the child, by reason of his physical and mental immaturity,needs special safeguards and care, including appropriate legal protection, before as well asafter birth" The right to life of child was considering as "the inherent right to life."43Stateparties have a duty to protect the right to life of child by their laws Moreover, states partieshave to ensure that:

"no child shall be subjected to torture or other cruel, inhuman or degrading treatment or

punishment Neither capital punishment nor life imprisonment without possibility of release

shall be imposed for offences committed by persons below eighteen years of age." 44

The Safeguards also prohibited using the death penalty in some other special cases.According to point 3 of the Safeguards, the death penalty shall not be applied to personsbelow eighteen years of age at the time of the commission of the crime either The death

40 The ICCPR came into force in March 1976 144 states parties ratified this treaty but only 12 of them are Asian states (Cambodia, China (not yet ratified), Laos, Democratic People’s Republic of Korea,

Indonesia, India, Japan, Nepal, Philippines, Republic of Korea, Sri Lanka, Thailand, and Vietnam) 40 Viet Nam ratified it in 1982; Singapore has not ratified this treaty.

41

42

Article 6 of the ICCPR, “No one shall be arbitrarily deprived of his life”

It was adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989 and entered into force on 2 September 1990 Every countries in the world has ratifed this treaty, except the U.S and Somalia Viet Nam was the second country to ratify this Convention.

43 Article 1 of the Convention on the Right of the Child: "States Parties recognize that every child has the inherent right to life"

44 Id Article 37 (a)

sentence shall not be carried out on pregnant women, or on new mothers, or on persons whohave become insane We can see that there are more cases that do not apply the death penaltythan are to be found in the ICCPR.

Second aspect, the death penalty is to be for special cases only and should not be used

widely The death penalty is only to be applied to the most serious crimes According toarticle 6 (2) to (6), state parties are not obliged to abolish the death penalty totally but theyare obliged to limit its use The sentence of death may be imposed only for the most seriouscrimes in accordance with the law in force at the time of the commission of the crime

The question is how to understand “the most serious crimes” in Article 6 of the

ICCPR The laws of the state parties are used to interpret this article Some states (like VietNam, China etc) provide a broad definition, which includes homicide, economic crimes,crimes of national security etc However, other states assume that it can only cover

homicides The opinion of the HRC is that the expression "most serious crimes" must be readrestrictively to mean that the death penalty should be a quite exceptional measure It alsofollows from the express terms of Article 6 that it can only be imposed in accordance with thelaw in force at the time of the commission of the crime and not contrary to the Covenant So,

"only intentional killings or attempted killings, or the intentional infliction of grievous bodilyharm, may permissibly attract the death penalty under article 6 (2)".45 The HRC has alsoconfirmed that the following are not "most serious crimes", and cannot therefore attract thedeath penalty without violating article 6:

“Robbery, traffic in toxic or dangerous wastes, abetting suicide, drug-related offences,

property offences, multiple evasion of military service, apostasy, committing a third

homosexual act, embezzlement by officials, theft by force, crimes of an economic

nature, adultery, corruption, crimes that do not result in the loss of life and political and

economic offences.” 46

However, the interpretation of the HRC does not bind the states parties in theory or inpractice Thus, this point has given rise to serious connection

The Safeguards are not only there to protect capital offenders, but also limit the scope

of the use of the death penalty Under point 1 of the Safeguards, "capital punishment may beimposed only for the most serious crimes, it being understood that their scope should not gobeyond intentional crimes with lethal or other extremely grave consequences." The mostserious crimes are intentional killings or attempted killings, or the intentional infliction ofgrievous bodily harm It also covers crimes such as treason that do result in extremely graveconsequences for society as a whole

Third aspect, international law does also safeguard the rights of capital offenders In

particular case, the states can use the death penalty to punish offenders but they must also

45

46 Joseph, S., Schultz, J., Castan, M., (2000), page 120

Id.

protect the rights of the capital offenders and guarantee that they are convicted fairly, andtreated with humanity According to Article 6 (2) of the ICCPR, capital offenders can only beexecuted pursuant to a final judgment rendered by a competent court And they have “theright to seek pardon or commutation of the sentence Amnesty, pardon or commutation of thesentence of death may be granted in all cases”.47

International standards on the use of the death penalty were clearly provided in theSafeguards guaranteeing protection of the rights of those facing the death penalty (adopted byEconomic and Social Council resolution 1984/50 of 25 May 1984) The Safeguards alsoguarantee other rights of capital offenders such as the right to an appellate process, the right

to seek pardon or commutation of the death sentence, and the right to have minimal sufferinginflicted upon the individual

Third, international law also has provisions that abolish the death penalty The Second

Optional Protocol was adopted and proclaimed by General Assembly resolution 44/128 of 15December 1989 and aims at the abolition of the death penalty The state parties to the ICCPRhave the right to choose whether to ratify this Protocol or not Up to now, 72 State Partieshave ratified it In Asia, only two countries (Nepal and Philippines) ratified the SecondOptional Protocol Viet Nam and Singapore have not yet ratified it The right to life wasregarded by the Second Optional Protocol as a negative right The right to life cannot betaken away by anyone, even states States parties believe that "abolition of the death penaltycontributes to enhancement of human dignity and progressive development of human rights"and "all measures of abolition of the death penalty should be considered as progress in theenjoyment of the right to life"48 Thus, the death penalty was considered as an action thatviolates the right to life

According to Article 1 of the Second Optional Protocol, states parties have to abolishthe death penalty In signing States, nobody shall be executed after ratification of the

Protocol If capital offenders were sentenced to death before the state ratified they shall not

be executed either

For the Second Optional Protocol does not absolutely abolish the death penalty There

is an exception "for a reservation made at the time of ratification or accession that providesfor the application of the death penalty in time of war pursuant to a conviction for a mostserious crime of a military nature committed during wartime."49 This means that, State Partiescan use the death penalty in wartime for the "most serious crime of a military nature” Stateshave to "communicate to the Secretary-General of the United Nations the relevant provisions

of its national legislation applicable during wartime." when they begin to use the death

penalty

47 Article 6 (4) of the ICCPR

48 Preamble of the Second Optional Protocol to the

on Civil and Political Rights, aiming at the abolition of the death penalty

49

Id Article 2

International Covenant

countries have abolished the death penalty has increased from 1.5 to 4 per year or nearlythree times as many.”51Differences in the background of countries do have an impact.

Although the world-wide movement towards abolition has proceeded at an increasing pace, it

is not a uniform trend 62 countries maintain the death penalty Many of these retentionistcountries are in Africa south of the Sahara, while some are in Asia Retentionists are the mostliberal in their use of the death penalty In some retentionist countries, the death penalty isfreely applied, including for economic crimes So one can say there are five trends regardingthe regulation of the death penalty

First, completely abolish the death penalty The death penalty is then not applied in

any case This trend has been increasing There were 35 countries that had completely

abolished in 1988 but 58 countries had completely abolished it in 1995.52 There are now 91completely abolitionist countries Under Protocol No 13 of the European Convention, allparties have to completely abolish the death penalty in time may

Protocol No 13 was signed on 3 May 2002 and has a major significance for humanrights law and the right to life This Protocol is the first international treaty in which the deathpenalty was absolutely abolished State parties assume that "the right to life, "an inalienableattribute of human beings" and "supreme value in the international hierarchy of humanrights" is unanimously guaranteed in legally binding standards at universal and regionallevel"53 And state parties are also convinced that everyone's right to life is a basic value in ademocratic society and that the abolition of the death penalty is essential for the protection ofthis right and for the full recognition of the inherent dignity of all human beings

According to article 1 of Protocol No.13, the death penalty is to be abolished in allcircumstances, including for acts committed in time of war or of imminent threat of war Thisduty connects with article 2 of the Protocol "No derogation from the provisions of this

Protocol shall be made under Article 15 of the Convention" Article 15 of the Conventionstipulates that in wartime or other public emergency threatening the life of the nation, statesneed not to bind by their obligations under the Convention This Protocol affirms that

although Article 15 of the Convention exists, the death penalty is also abolished in wartimes

or at times of imminent threat of war In view of the very object and purpose of this Protocol,the applicability of Article 15 of the Convention has been excluded.54

Second, abolish the death penalty for ordinary offences Many countries have abolished

the death penalty for all crimes in peace time but it can be applied to the most serious crimes

in war time The number of abolitionist for ordinary offences countries has been increasing.Before 1965 only 11 countries were abolitionist in this way but there were 14 of them by

1995 According to Roger Hood, there were 18 (10%) abolitionists for ordinary offences in

1988 but there were 14 (7%) in 1995 And there were 35 (19%) completely abolitionist in

1988 and 58 (30%) in 1995.55 This shows that abolition of the death penalty for ordinaryoffences is a step to abolishing the death penalty completely Nowadays, all countries that areparty to Protocol No.6 of the European Convention and The Protocol to the American

Convention on Human Rights are abolitionist for ordinary offences There are 11 countriesfollow this trend There are two area agreements on this trend:

Protocol No 6 was adopted in April 28, 1983 and entered into force on March 1,

1985 This Protocol, which to date has been ratified by almost all State Parties to the

European Convention, was the first legally binding instrument in Europe and the world which provided for the abolition of the death penalty in time of peace

-According to Article 1 of the Protocol No.6, the death penalty shall be abolished indue course No one shall be condemned to such a penalty or executed Protocol No 6 was notabsolutely for abolition Article 2 provides for the death penalty for "acts committed in time

of war or of imminent threat of war State parties can use the death penalty in wartime This

is not violation of Protocol No.6 However, this possibility was restricted to the application ofthe death penalty in instances laid down in the law and in accordance with its provisions

The Additional Protocol of the American Convention on Human Rights to abolish thedeath penalty was adopted at Asuncion, Paraguay, on 8/6/1993 To date it has been ratified byBrazil, Costa Rica, Ecuador, Nicaragua, Panama, Paraguay, Uruguay, and Venezuela TheAdditional Protocol, like the Second Optional Protocol of the ICCPR and Protocol No.6 ofthe European Convention, is a more restrictive agreement than its original Convention UnderArticle 1 of the Additional Protocol, the death penalty shall be abolished in peacetime No

54 Explanatory Report to Protocol No 13 to European Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the abolition of the death penalty in all circumstances (1)

http://conventions.coe.int/Treaty/en/reports/Html/187.htm

55 Id., p 9

one shall be condemned to such penalty or executed However, state parties can use the deathpenalty in "time of war or of imminent threat of war"56

Third, abolish the death penalty in practice Countries can be de facto and have not

executed anybody for at least ten years The criminal law of those countries still provides forthe death penalty but it is not applied in practice They still maintain the death penalty as apossible method of punishment and will not formally abolish the death penalty And thepractice can be changed so such a State could apply the death penalty again at any time if it

so wished 33 countries follow this trend

Four, maintain the death penalty Today there are 61 countries that maintain the death

penalty In that countries, the death penalty be useed widely They focus on some area likeAsian, Africa and Mild East This trend is supported by such as the American Convention

on Human Rights, the Universal Islamic Declaration of Human Rights and the Arab Charter

on Human Rights

The American Convention on Human Rights (American Convention) was adopted by

the Organization of American States (OAS) in 1969 and entered into force on July 18, 1978

25 countries of South America have ratified it (1996)

This Convention protects everyone from being arbitrarily deprived of his or her life.This Convention does not abolish the death penalty, but it does limit its use According toArticle 4 of the Convention, the death penalty is limited in four ways: it may be imposed onlyfor the most serious crimes; in no case shall capital punishment be inflicted for politicaloffences or related common crimes; capital punishment shall not be imposed upon personswho, at the time the crime was committed, were under 18 years of age or over 70 years ofage; nor shall it be applied to pregnant women; finally, the death penalty shall not be re-established in states that have abolished it

The Universal Islamic Declaration of Human Right was adopted in 15/9/1981 The

right to life was stated in Article 1(a) of this Declaration: “Human life is sacred and

invaluable and every effort shall be made to protect it In particular no one shall be exposed

to injury or death, except under the authority of the Law.” Human life was protected from anyillegal action, but states can apply the death penalty to capital crimes This Article clearlyshow that Islamic countries can retain the death penalty

The Arab Charter on Human Right was adopted in 15/9/1994 This Charter regulates

the death penalty It is ultimately the same as Article 6 of the International Covenant on Civiland Political Right 1966 According to Article 5 of the Charter, “every individual has theright to life, liberty and security of person These rights shall be protected by law.” However,the right to life is limited Every one that commit a capital crime may suffer the death

penalty

56 Article 2 of the Protocol to the American Convention on Human Rights

This Charter allows states to use the death penalty, but limit its use Again, it mayonly be imposed only for the most serious crimes57 but countries have the right to considerwhat the most serious crimes are In Islamic countries, the scope for the application of thedeath penalty is large.

This Charter also contains provisions regarding persons that the death penalty cannot

be applied to According to Article 11 and Article 12 of the Charter, the death penalty cannot

be applied for political offences, to person under 18 years of age, to pregnant women prior todelivery and to new mothers within two year of the date on which they gave birth

In countries that maintain the death penalty, many people support it The Angus ReidGlobal Monitor (2006) reported that many adults in the United States support capital

punishment In the Washington Post and the ABC News poll conducted in July 2006, 65% ofthe respondents favored the death penalty This support has been relatively consistent overthe years: in 2005, 66% were in favor, and in 2003, 64%.58

Finally, there are some countries which abolished the death penalty but re-instated it.

Since 1985 only four abolitionist countries have acted in this way Two of them, Nepal andPhilippines have since abolished the death penalty again There have been no executions inthe other two (Gambia, Papua New Guinea).59

Today many people think that the complete abolition of the death penalty is

customary international law If this is the case, then countries that use the death penalty as apenalty, violate international law or at least customary international law I believe that it isnot the case The complete abolition of the death penalty is not customary international law or

at least, not yet

Customary international law has been defined as a general and consistent state

practice of states followed by them from a sense of legal obligation.60Customary internationallaw obligates a country to follow that custom If the complete abolition of the death penalty iscustomary international law, every state has to abolish the death penalty The importantquestion is how to identify a customary international law According to Christy A Short,there are three elements of a custom, namely (1) the State practice must be consistent; (2) thestate practice must be general; (3) the State must be feel a legal obligation to follow thatpractice.61 This thesis will show on a point-by-point basis that the complete abolition of thedeath penalty is not customary international law

Amnesty International, Report of Amnesty International on the death penalty statistics

Short, Christy A., (1999), p 742

Id., p 742

First, it is not the case that states practice is consistently in favor of completely

abolishing the death penalty There are three level of abolition: completely abolition

(abolitionist), abolition in practice (abolitionist de facto) and abolition of ordinary crimes inpeacetime (abolitionist for ordinary offences) In practice, it is not feasible to discern a

common principle or norm which impact state behavior and calls for completely abolishingthe death penalty

Second, the abolition of the death penalty is not the dominant trend worldwide Infact, only the countries of Western Europe have completely abolished the death penalty underthe Protocol No 13 Latin America has also advanced efforts to abolish the death penalty inpeacetime However, there are 62 countries, which maintain the death penalty Many of therecent retentionists are in Africa south of the Sahara, Asia and the Middle East This showsthat the abolitionist trend is regional rather than widespread throughout the internationalsystem Complete abolition of the death penalty is not a general practice

Finally, the abolition of the death penalty has not become an obligation under

international law (opinio juris) States are free to accept or reject international treaties toabolish the death penalty According to Christy A Short, the concept of “opinion juris” can

be demonstrated in Western Europe, where there clearly is a State practice and policy

surrounding the use of the death penalty Nigel Rodley stated, “It may not be too much to saythat abolition of the death penalty has become an implicit condition of membership of theEuropean Community.”62Thus, states of Europe have to abolish the death penalty if they want

to become the membership of the European Community But, the European Union is a

regional entity Therefore the “opinio juris” on abolishing the death penalty is regional

custom and only binds the states of Europe This is different from customary internationallaw

62 Id., p 749