Under International Law, Indonesia Can’t Kill Drug Offenders

 

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.