The Domestic Stronghold of Capital Punishment for Atrocity Crimes in the 21st Century
There is a tension between domestic and international criminal tribunals’ interpretation of international law regarding capital punishment for atrocity crimes. While the movement to abolish the death penalty has been progressively developing into an international customary standard since 1948, domestic tribunals continue to render death sentences in abundance. In doing so, they maintain the support of those who view capital punishment as justified.
The death penalty is not universally prohibited under international law. However, there are legal instruments that espouse its abolition. For example, the 1976 International Covenant on Civil and Political Rights (ICCPR), signed by 178 state parties and ratified by 172, acknowledges states’ observance of capital punishment but places limitations on its imposition. Article 6 of the ICCPR expressly places limits in regard to age, applicable crimes, retroactivity, due process, and gestation.
In practice, this list has expanded beyond Article 6, prompted by state custom due to significant historical events that produced momentum to abolish capital punishment. This momentum is evident in treaty-based prohibitions on capital punishment for atrocity crimes. They exist in the form of additional protocols to international human rights treaties, such as the Optional Protocol to the ICCPR, with thirty-nine signatories and eighty-eight states parties.
As the abolition of capital punishment today is based on treaties, not customary law, the obligation is only absolute for ratifying states. This Insight will assess what makes domestic criminal tribunals, with parallel obligations to international criminal tribunals, able to retain capital punishment sentencing frameworks. Part II will look at a brief history of capital punishment for atrocity crimes. Part III will look at the current approach of domestic jurisdictions through the lens of the International Criminal Tribunal of Bangladesh to better assess the trend of this framework and dichotomy between domestic and international tribunals. Part IV will provide concluding thoughts.
II. A Brief History of Capital Punishment for Atrocity Crimes through an Analysis of International Instruments and Institutions
Nuremberg Trials and Tokyo Trial (“Trials”)
The Nuremberg Trials were the first international criminal trials for atrocity crimes, followed by the Tokyo Trial by the International Military Tribunal for the Far East. These prosecutions represent the start of establishing an international criminal justice system.
Of the eighteen defendants convicted at the Nuremberg Trials, twelve were sentenced to death—ten were hanged, one committed suicide the night prior, and one reportedly committed suicide in an attempt to escape Berlin. All of the twenty-eight defendants indicted at the Tokyo Trial were found guilty, seven of whom were sentenced to death by hanging.
Of the 5,700 Japanese individuals indicted for war crimes in other trials around the same time, many were sentenced to death by the following states:
- Netherlands - 236
- Great Britain - 223
- Australia - 153
- China - 149
- US -140
- France - 26
- Philippines - 17
During these trials, roughly between 1945 and 1949, tribunals relied on the 1940 United States Army Manual, Rules of Land Warfare, which stated that, “[a]ll war crimes are subject to the death penalty, although a lesser penalty may be imposed.”
Although World War II ultimately led to one of the largest shifts in how civilians viewed capital punishment, forging the abolitionist movement, it took time for these views to effectuate legal reform. It took time to legally justify anything but the harshest sentence—death—for the gravest crimes from which people were still suffering and mourning.
For example, the 1948 Universal Declaration of Human Rights indirectly addresses capital punishment. It acknowledges the rights to life and to live free from torture or cruel, inhuman or degrading treatment or punishment without expressly limiting or implicating capital punishment.
Article 3 of the 1948 Universal Declaration of Human Rights proclaims:
Everyone has the right to life, liberty and security of person.
Regional and international treaties largely chose to codify this right, but with capital punishment as an exception.
Article 5 of the 1948 Universal Declaration of Human Rights proclaims:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
However, states continue to render death sentences, presumptively legally under international law, by modifying how they are carried out, such as prohibiting the employment of quartering, garrotes, and nooses.
A few years later in 1951, the International Law Commission’s Draft Code of Offences Against The Peace and Security of Mankind declared, “The penalty for any offense defined in this Code shall be determined by the tribunal exercising jurisdiction over the individual accused, taking into account the gravity of the offence.” This decision to not expressly endorse capital punishment created the space and leniency for tribunals to employ discretionary sentencing, in contrast to the Trials. This, and the culmination of the Cold War, paved the way for one of the greatest achievements for abolitionists—the 1994 draft statute for an International Criminal Court that did not account for capital punishment.
The divergent punishment frameworks for atrocity crimes in international and domestic tribunals in the twenty-first century persist.
International Legal Standards Regarding Capital Punishment (ICTY, ICTR, STL, ICC)
In addition to the increase in international legal instruments with mandatory abolition language, international institutions reflect the evolution of human rights discourse on capital punishment. Bodies such as the American Bar Association, the Council of Europe, and the European Union have expressly advocated for the abolition of the death penalty. Institutions such as the United Nations General Assembly, the Human Rights Committee, and the International Criminal Court have advocated for abolition in words and practice. For example, in the 2003 case of Roger Judge v. Canada, the Human Rights Committee held that countries that have abolished the death penalty “may not remove, either by deportation or extradition, individuals from their jurisdiction if it may reasonably be anticipated that they will be sentenced to death, without ensuring that the death sentence will not be carried out.” Additionally, the statutes of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) do not enable the tribunals to render death sentences. While the International Criminal Court has not expressly adopted the Roger Judge stance on extradition, Article 77 of the Rome Statute mirrors the ICTY’s and the ICTR’s approach. However, unlike the ICTY and ICTR statutes, Article 80 of the Rome Statute ultimately accepts the continued use of the death penalty at the national level.
The abolitionist stance of the drafters of these institutions’ statutes reflects and contributes to the increasing state practice of abolition. In the mid-1990s, abolitionist states began to outnumber retentionist states, and the trend has continued to 2019’s 106:56 state ratio, with the remaining 36 states adopting intermediary frameworks.
International customary standards require both state practice and opinio juris. In other words, in order for a given norm to form, customary international law requires the generalized practice of states acting out of a sense of legal obligation. At present, the second prong of opinio juris—that capital punishment is prohibited under international law—does not appear to be met. Many scholars, even those in favor of abolishing the death penalty, argue that abolition has not yet become customary international law. Further, even if abolition was customary international law, states could comply with international law in rendering death sentences if they are persistent objectors. States that persistently object to customary international law since the custom’s emergence are not bound to observe the custom.
III. Domestic Capital Punishment Standards through an Analysis of Bangladeshi and Rwandan State Practice
Domestic jurisdictions have varying interpretations of these international legal standards regarding capital punishment, seen in their state practice. Rwanda’s and Bangladesh’s contrasting state practices, with only the former comporting with emerging international legal norms towards the abolishment of capital punishment, are both legal as capital punishment is not banned under international law.
International Criminal Tribunal for Rwanda and Customary International Law
Rwanda chose to abolish the death penalty in 2007. This legislative reform was in satisfaction of the ICTR prerequisite to transfer cases to Rwanda for domestic prosecution.
As an international criminal tribunal responsible for prosecuting atrocity crimes that implicated international law, and as a state that endured genocide, the ICTR’s and Rwanda’s cessation of death sentences is consistent with emerging international legal norms.
While other states continue to abolish the death penalty, they are not necessarily doing so in response to atrocity crimes; the prosecution of mass atrocity crimes since the Trials have been too few, making abolition merely an emerging norm.
The International Criminal Tribunal of Bangladesh and its August 27, 2019, Sentence
Unlike the ICTR and Rwanda, Bangladesh, and therefore the International Crimes Tribunal of Bangladesh (ICTB), has not abolished the death penalty. While Bangladesh signed the Rome Statute in 1999 and ratified it in 2010, Article 77’s prohibition on capital punishment only extends to the ICC’s jurisdiction and does not place any limits on the state’s domestic judiciary. While Bangladesh is a state party to the ICCPR, Article 6’s limitations on capital punishment are not absolute. Since Bangladesh has not abolished the death penalty, has not ratified international legal instruments that bind it to do so, and its state practice persistently reflects retention, it is not currently obligated under international law to abolish the death penalty.
Bangladeshi state practice, or persistent objection to the abolition of the death penalty, is evident through the judgments of the ICTB, created in 2009 to prosecute core crimes of international law committed during the 1971 Bangladesh Liberation War. Since its inception, with eighty-nine convictions to date, the ICTB has rendered sixty-two death sentences. The ICTB most recently rendered a death sentence on August 27, 2019, for crimes against humanity. These sentences align with the ICTB’s punishment framework, laid out in Section 20(2) of the International Crimes (Tribunal) Act, 1973:
Upon conviction of an accused person, the Tribunal shall award sentence of death or such other punishment proportionate to the gravity of the crime as appears to the Tribunal to be just and proper.
In May 2011, Human Rights Watch (HRW) wrote a letter to the Bangladeshi Prime Minister, providing suggestions for how to strengthen the young tribunal. HRW argued for the amendment of Section 20(2), referring to international tribunals, such as the ICC, ICTY, and ICTR that render sentences for the same crimes with a maximum penalty of life imprisonment. HRW did not argue that Section 20(2) in its original form would violate international law, but would instead impact the Tribunal’s credibility.
While the ICTB is a domestic, not international, criminal tribunal, both the ICTB and the ICTR are and were responsible for prosecuting atrocity crimes implicating international law. However, the ICTR successfully got Rwanda to prohibit capital punishment through political pressures. To the contrary, the ICTB Act permits capital punishment and the Tribunal renders such sentences continuously and abundantly. While there is substantial international pressure for states like Bangladesh and institutions like the ICTB to prohibit capital punishment, the absence of domestic pressure or customary international law and the presence of persistent objection make such a shift unlikely.
Ultimately, the ICTR and Rwanda did, and the ICTB and Bangladesh do, both comport with international law in their respective abolition and retention of capital punishment for atrocity crimes. In the alternative, even if customary international law requires abolition of capital punishment, retentionist states like Bangladesh and tribunals like the ICTB comport with international law under the persistent objector principle.
While domestic jurisdictions are legally entitled to render death sentences for atrocity crimes today, the law continues to evolve as the prosecutions of atrocity crimes accumulate over time. For this reason, states should remain informed of emerging trends and the potential for an international customary prohibition on capital punishment in the future.
About the Author: Marissa Kardon Weber is a Legal Intern with the International Criminal Court’s Office of the Prosecutor, Prosecution Division. She received her Juris Doctorate from the University of Colorado Law School in May 2019 and passed the July 2019 New York State Bar exam. The views expressed herein are those of the author alone, and do not necessarily represent the views of the Office of the Prosecutor or the International Criminal Court.
 Universal Declaration of Human Rights, G.A. Res. 217A(III), U.N. GAOR, 3d Sess. art. 3, U.N. Doc. A/810 (1948).; American Declaration of the Rights and Duties of Man, OEA/ser.L./V./II.23 Doc. 21 Rev. 6, art 1 (1948).
 International Bar Association, The Death Penalty Under International Law: A Background Paper to the IBAHRI Resolution on the Abolition of the Death Penalty, 3-4 (2008).
 Id. at 13.
 General Comment No. 36 (2018) on article 6 of the International Covenant on Civil and Political Rights, on the right to life, CCPR/C/GC/36 (Oct. 30, 2018).
 Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the Abolition of the Death Penalty, G.A. Res. 128, U.N. GAOR, 44th Sess., Supp. No. 49, at 207, U.N. Doc. A/44/49 (1989) (entered into force July 7, 1991).
 William A. Schabas, International Law and Abolition of the Death Penalty, 55 Wash. & Lee L. Rev. 797, 797 (1998).
 Id. at 832.
 Jon Yorke (ed.), The Right To Life And The Value Of Life: Orientations In Law, Politics And Ethics 195 (1st ed. 2016).
 Caroline Joan (Kay) S. Picart, Attempting to Go Beyond Forgetting: The Legacy of the Tokyo IMT and Crimes of Violence Against Women, 7 E. Asia L. Rev. 1, 41 (2012).
 Schabas, supra note 6, at 833.
 Lizzie Seal, Perceptions of Safety, Fear and Social Change in the Public’s Pro-Death Penalty Discourse in Mid Twentieth-Century Britain, 21 Crime, History and Societies 1, 1-3 (2017).; Sangmin Bae, International Norms, Domestic Politics, and the Death Penalty: Comparing Japan, South Korea, and Taiwan, 44 Comparative Politics 41-58 (2011).; Sangmin Bae, When the State No Longer Kills: International Human Rights Norms and Abolition of Capital Punishment, 2 (SUNY Press, 2008).
 Schabas, supra note 6, at 797.
 Draft Code of Offences Against the Peace and Security of Mankind, art. 5,  2 Y.B. Int'l L. Comm'n 133, 137, U.N. Doc. A/CN.4/SER.A/1951/Add.1.
 Council of Europe, Protocol 6 to the European Convention for the Protection of Human Rights and Fundamental Freedoms concerning the Abolition of Death Penalty (Apr. 28, 1983), ETS 114.
 Roger Judge v. Canada, Comm. No. 829/1998, U.N. Doc. CCPR/C/78/D/829/1998 (2003).; Rome Statute of the International Criminal Court, July 17, 1998, U.N. Doc. A/Conf.183/9 (1998), art. 77.; U.N. Document A/C.3/62/L.29 (Nov. 1, 2007).
 Roger Judge v. Canada, Comm. No. 829/1998, para. 10.4.
 Rome Statute, art. 80.
 Amnesty Int’l, Abolitionist and Retentionist Countries as of July 2018 (Oct. 28, 2018).
 See Statute of the International Criminal Court of Justice, art. 38.
 James A. Green, The Persistent Objector Rule in International Law (Oxford University Press, 2016).
 Sigall Horovitz, International Criminal Courts in Action, The ICTR’s Effect on Death Penalty and Reconciliation in Rwanda, 48 Geo. Wash. Int’l L. Rev. 505, 520 (2016).
 Jens D. Ohlin, Applying the Death Penalty to Crimes of Genocide, 99 Am. J. Int’l L. 747, 751-52 (2005).
 The Chief Prosecutor v. Md. Abdus Samad @ Musa @ Firoz Kha, Case No.04 of 2018, Judgment (Aug. 27, 2019).
 Letter from Human Rights Watch to the Bangladesh Prime Minister (May 18, 2011) (on file with author), https://www.hrw.org/news/2011/05/18/letter-bangladesh-prime-minister-regarding-international-crimes-tribunals-act.