Indonesia has resumed the
death penalty for drug traffickers, after a four-year suspension, under the
rule of the current President Joko Widodo. In January 2015, five foreigners
were executed. President Jokowi has constantly maintained his determination to
show no mercy to drug offenders. He has rejected applications for clemency
submitted by drugs offenders including Myuran Sukumaran and Andrew Chan of
Australia, who are next to face the firing squad.
As a result of this harsh
stance, Indonesia has received objections from the leaders of Australia,
Brazil, France — whose citizens are among 11 people facing death for drug
trafficking. The United Nations secretary general, Ban Ki-moon, even advised
Indonesia to stop executing prisoners for drug offenses. In response,
Indonesian Foreign Ministry spokesman Arrmanatha Nasir indicated that capital
punishment was “still in line with the context of international law [...] where
capital punishment can be used for the most serious of crimes.”
However, under the
perspective of international law, his statement may raise doubts and questions.
Is it true that Indonesia’s draconian penalty on drug traffickers is in
accordance with international law? In order to assess this, it is necessary to
examine the relevant international legal framework, and in this respect the
relevant law is international human rights law. Among various international
human rights treaties, one of the most relevant in this respect is the
International Covenant on Civil and Political Rights (ICCPR), which enshrines
the right to life.
The legal foundation
for the death penalty in international law is enshrined in the ICCPR, which
addresses the right to life. Indonesia ratified this treaty on Feb. 23, 2006.
Consequently, this treaty is also a law for Indonesia, as exhibited by the
concept of pacta sunt servanda: every treaty in force is binding upon
the parties to it and must be performed by them in good faith.
It is written in
Article 6(2) of the ICCPR that “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…” Hence,
the application of the death penalty for drug offenders in Indonesia can only
be legal if it falls within the scope of “the most serious crimes.” However,
the notion of “the most serious crimes” in this article is rather vague,
because it may be interpreted differently in accordance with the prevailing
culture, religion, tradition and political context in different countries.
Since the ICCPR
entered into force in 1976, the interpretation of “most serious crimes” has
been refined by a number of international human right bodies. The Human Rights
Committee, which is the treaty body for the ICCPR, has stated that the notion
of “most serious crimes” is restricted to acts directly resulting in death. The
UN Commission on Human Rights in 2004 delivered a resolution that called upon
states “to ensure that the notion of most serious crime does not go beyond
intentional crimes with lethal or extremely grave consequences and that the
death penalty is not imposed for non-violent acts.”
Subsequently, the
Human Rights Committee in its Concluding Observations on Thailand expressed its
concern that the death penalty was applicable to drug trafficking and not
restricted to the notion of “most serious crimes” within the meaning of Article
6(2) of the ICCPR. The Committee also repeated this interpretation in its 2007
Concluding Observation on Sudan by citing “the imposition in the state party of
the death penalty for offenses which cannot be characterized as the most
serious, including embezzlement by officials, robbery with violence and drug
trafficking.”
While international
human rights bodies tend to view drug offenses as not among the “most serious
crimes,” from a layman’s perspective it might seem that their view is
unsubstantiated. Without denying the fact that drug-related crime is also a
particularly serious crime, the “seriousness” of drug-related crimes should be
compared with other “serious” crimes in international law to understand whether
they can be considered among the “most serious crimes.” The first comparison is
with the list of crimes listed in international criminal law, particularly the
Rome Statute.
The Rome Statute of
the International Criminal Court (ICC) specifies that the Court’s jurisdiction
“shall be limited to the most serious crimes of concern to the international
community as a whole”; hence, genocide, crimes against humanity, war crimes,
and the crime of aggression are the only crimes that fall under the
jurisdiction of ICC. For another comparison, related to the notion of the “most
serious crimes,” the International Criminal Tribunal for Rwanda in the Akayesu
case stated that “the gravest crime” is genocide and in the Kambanda case
stated that genocide is the “crimes of crimes.” Thus, in several international
criminal tribunals, drug-related crime does not meet the threshold of the “most
serious crime.”
However, some may
invoke the 1998 United Nations Convention Against Illicit Traffic in Narcotic
Drugs and Psychotropic Substances to argue that drug crimes are particularly
serious. Such an approach was invoked by the Constitutional Court of Indonesia
in the case of Rani Andriani, Myuran Sukumaran and Andrew Chan. The court
stated that a wide range of activities related to the trafficking or purchasing
of illegal narcotics, as defined in Article 3 of the ICCPR, may be classified
“as the particularly serious crimes compared with the crimes accepted as the
most serious crimes so far, such as genocide crimes and crimes against
humanity, substantively, there shall be no distinctions between the two groups of
crimes.”
However, the term
“particularly serious” is not equivalent to “the most serious”; although the
trafficking of heroin or cocaine into the country might be particularly
serious, it does not mean that it is the most serious crime under international
law. Thus, the Constitutional Court has erred in its approach because it
conflated the notions of “most serious” and “particularly serious” crime.
In conclusion, it
seems that there is little evidence to support the stance that drug-related
crimes fall under the term of “most serious crimes.” This implies that by
executing drug traffickers, Indonesia has violated Article 6(2) of the ICCPR.
Since Indonesia has ratified the ICCPR, Indonesia should demonstrate its
commitment to international human rights and respect for binding international
legal obligations. At the same time, it should not flag in its commitment to
fight drug crimes as “particularly serious crimes,” although it must refrain
from utilizing measures that violate international law.
Muhamad Eka Ari
Pramuditya is pursuing a master’s degree in public international law at Leiden
University in the Netherlands.
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