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Summary of Customary International Law and Jus Cogens as Pertains to Juvenile Offenders (as of 2003/2004)

Introduction

This section of the webpage will give a cursory overview of international law and its sources, in addition to the customary international law and jus cogens arguments as they pertain to juvenile capital offenders.

It is critical for attorneys who have juvenile clients to assert international human rights law as soon as possible, thus preserving the argument. In fact, articulation of international law at the pre-trial stage may influence the prosecution to take the death penalty off the table, which has occurred in a number of cases. Therefore, it is imperative that attorneys understand and utilize this avenue of legal argument.

What follows is a cursory outline of international law and its sources:

Sources of International Law

Article 38 (1) of the Statute of the International Court of Justice provides a list of the sources of international law.

  1. International conventions, whether general or particular, establishing rules expressly recognized by the contesting states.
  2. International custom, as evidence of general practice accepted as law.
  3. General Principles of Law recognized by civilized nations.
  4. Judicial decision and the teaching of the most highly qualified publicists of the various nations, as subsidiary means of determination of law.

Treaties

Treaties are binding on the party. Upon signing an international instrument, the party agrees to bind itself in good faith to ensure that nothing is done which would defeat the object and purpose of the treaty, pending a decision on ratification.

The execution of child offenders is not only contrary to principles of American justice, but is also contrary to international law and fundamental standards of human rights. The ultimate goal of the international community is to abolish the death penalty under all circumstances however, until that time there are restrictions on the categories of persons who can be executed. The prohibition of the execution of juveniles is referenced in a number of international treaties, declarations, and statements by international bodies, in addition to the laws of the majority of nations.

The execution of juveniles is expressly forbidden in the following:

Resolutions

Resolutions are non-binding, but are reflective of the acceptance of an international norm.

The United Nations Economic and Social Council, in Resolution 1984/50, Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, res. 1984/50 also opposed the imposition of the death penalty on juvenile offenders. This opposition was confirmed in the UN General Assembly’s adoption by consensus of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice.

Since 1997, the United Nations has passed resolutions calling for the abolition of the death penalty in general, but has in so doing, specifically called on countries "not to impose it for crimes committed by persons below 18 years of age". See, Resolution 2002/77, the Question of the Death Penalty, reconfirmed in both Resolution 2003/67 and Resolution 2004/67, the Question of the Death Penalty. the Question of the Death Penalty. The Commissions’ resolutions passed with a number of dissenting votes, but as argued by Constance de la Vega in the Amicus Curiae brief to the US Supreme Court in Beazley v. Johnson, filed July 2001, these dissenting votes can be attributed to the fact that the Commission also called for a moratorium on the death penalty in general. Indeed, a number of nations still allow for the use of the death penalty, which is not prohibited generally under the ICCPR. However, Resolution 2002/92, the Rights of the Child, adopted April 26, 2002, which solely mentions the execution of juvenile offenders in Article 31, passed by consensus without a vote.

The resolution requests that governments comply with their;

"obligations as assumed under relevant provisions of international human rights instruments, including in particular articles 37 and 40 of the Convention on the Rights of the Child and articles 6 and 14 of the International Covenant on Civil and Political Rights" and to "abolish by law as soon as possible the death penalty for those aged under 18 at the time of the commission of the offence."

This request was restated in 2003 as can be seen by Article 35 of Resolution 2003/86 which also passed by consensus without a vote, and most recently re-affirmed in 2004 in Resolution 2004/48.

Customary International Law

Customary international law is binding on a nation. It is evidenced by a generally accepted state practice and opinio juris, "accepted as law".

Custom is the second source of international law listed in the Statute of the International Court of Justice, as confirmed by the ICJ in Nicaragua v. USA (merits), ICJ Rep, 1986, 14 at 97., custom is constituted by two elements, the objective one of ‘general practice’ and the substantive one of ‘accepted by law’ (opinio juris). The banning of the execution of juveniles has gained widespread respect, arguably becoming a principle of customary international law, and therefore, binding upon all nations.

In 1999, the United Nations High Commissioner for Human Rights reaffirmed "the customary international law ban on the execution of juveniles".

In August 2000, the United Nations Sub-Commission on the Promotion and Protection of Human Rights adopted Resolution 2000/17 on The Death Penalty in Relation to Juvenile Offenders. Within this document the Sub-Commission condemned the use of the death penalty against child offenders affirming that such use "is contrary to customary international law". The document also called on states that retain the death penalty for child offenders to change their laws as soon as possible and in the meantime, "to remind their judges that the imposition of the death penalty against such offenders is in violation of international law".

In 2001, the UN Commission on Human Rights called upon all retentionist states to comply fully with their obligations under the ICCPR and the CRC, including not imposing the death penalty for crimes committed by persons below eighteen years of age. Further, the Commission called on countries to withdraw any reservations they have lodged to Article 6 of the ICCPR owing to the fact that this article "enshrines the minimum rules for the protection of the right to life and the generally accepted standards in this area". The Commission also welcomed the Sub-Commission’s resolution of 2000.

In 2002, recapitulation can be found in Resolution 2002/92, "Rights of the Child" and Resolution 2002/47, "Human Rights in the Administration of Justice, in Particular Juvenile Justice".

The prohibition against the imposition of the death penalty on juvenile offenders was further affirmed in 2003 in Resolution 2003/86, "Rights of the Child" and Resolution 2003/67, "The Question of the Death Penalty". The continuous confirmation of this well established prohibition is placing the United States under increased scrutiny and pressure from the international community.

The Convention on the Rights of the Child and the US

Ratification of the Convention on the Rights of the Child ("CRC") (adopted by General Assembly 1989) the most comprehensive international instrument protecting the rights of children, is almost universal, with 192 state parties. This is a strong sign of an international consensus that the death penalty must not be used against child offenders. The United States and Somalia are the only non-ratifying nations. Somalia, until recently had no recognizable government however, on May 9, 2002, Somalia signed the CRC and announced its intention to ratify. While the United States has not, as yet, ratified the CRC, it did sign the document in 1995. Again, as stated earlier, upon signing an international instrument, the party agrees to bind itself in good faith to ensure that nothing is done which would defeat the purpose of the treaty, pending the decision on ratification. This is affirmed in the Vienna Convention on the Law of Treaties (1979) Article 18a.

The CRC has been the impetus which has encouraged many nations, including Barbados, China, Yemen, and Zimbabwe, to change their laws raising the eligibility of the imposition of the death penalty to 18. In fact, the Report of the Secretary General, in the year 2000 notes that all but 14 countries party to the CRC had national laws prohibiting the imposition of the death penalty on persons who committed capital offenses when under the age of 18.

International Context

Since 1990, only eight countries have reportedly executed juveniles: Iran, Saudi Arabia, Nigeria, the Democratic Republic of Congo (DRC), Yemen, Pakistan, China and the United States. In the last three years this small number of nations known to have executed child offenders has further declined to only four: China, Iran, Pakistan, and the US. In 1994, Yemen changed its law to prohibit the execution of juveniles. The Nigerian government has asserted to the UN Sub-Commission that the execution, which took place in 1997, was not of a juvenile (See Summary Record of 6th Meeting of the Sub-Commission on the Promotion and Protection of Human Rights, 52nd Sess., 4th August, 2000, E/CN.4/Sub.2/2000/SR.6 para.39 (2000)). Saudi Arabia emphatically denies the 1992 execution of a juvenile (See Summary Record of the 53rd Meeting of the Commission on Human Rights, 56th Sess., April, 17, 2000, E/CN.4/2000/SR.53, paras 88 and 92).

In July 2000, Pakistan moved to outlaw such executions under the Juvenile Justice System Ordinance signed on 1 July 2000. However, it has been reported that Pakistan executed Ali Sher on 3 November 2001 for a crime he committed at the age of 13. Since that time, President Musharrah of Pakistan has commuted the death sentences of approximately 100 young offenders to imprisonment. This shift away from the juvenile death penalty is supported by the Supreme Court of Pakistan’s decision on March 26, 2003 to "peruse and define laws relating to "the imposition of the death sentence (on) young people." Please click here for commentary. Most recently, it has been reported that Iran executed Mohammad Mohammadzadeh on 25 January 2004 for an offense committed at the age of 17. Significantly however, in December 2003, a bill to raise the minimum age for imposition of the death penalty to 18 was approved by the Iranian parliament. The bill is currently awaiting approval by the highest legislative body, the Guardian Council, in order to become law.

In December 1999, the DRC called for a moratorium on all executions. However, in January 2000, a 14 year-old child soldier was executed in the DRC. Since that time, according to OMCT-World Organization Against Torture (Case COD 270401.1.CC, 31 May 2001, OMCT-World Organization Against Torture), four juvenile offenders sentenced to death in the DRC in a military court were granted stays and the sentences were commuted following an appeal from the international community. Of the six countries, other than the US, that have reportedly executed juvenile offenders, all have either changed their laws or the governments have denied that the executions took place.

The United States of America is the only country in the world that regularly executes juvenile offenders at a pace that is alarming by international standards. The USA alone executes more juveniles than the rest of the world combined.

Jus Cogens

Under Article 53 of the Vienna Convention, a jus cogens norm is:

"a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character."

The Restatement (Third) of the Foreign Relations Law agrees with this standard, asserting that the norm is established where there is acceptance and recognition by a "large majority" of states, even if over dissent by "a very small number of states" (Restatement (Third) of Foreign Relations Law, §102, and reporter’s note 6 (1986), citing Report of the Proceedings of the Committee of the Whole, May 21, 1968, UN Doc. A/Conf. 39/11 at 471-72).

In other words, the norm describes such a bare minimum of acceptable behavior that no Nation State may derogate from it. It is argued by some that the overwhelming application of the norm against executing juvenile offenders has rendered it a jus cogens norm. The treaties, pronouncements, and practices demonstrate that the prohibition has become as widespread and unquestionable as have the prohibitions against slavery, torture, and genocide. There are no contrary expressions of opinion by any country, nor by any agency charged with the enforcement and interpretation of the within-cited international accords.

The prohibition against the imposition of the death penalty on juvenile offenders was further affirmed in both 2003 and 2004: Resolution 2003/86, "Rights of the Child"; Resolution 2003/67, "The Question of the Death Penalty"; Resolution 2004/48, "Rights of the Child"; Resolution 2004/67, "The Question of the Death Penalty"; and Resolution 2004/43, "Human Rights in the Administration of Justice, in Particular Juvenile Justice".

The continuous confirmation of this well established prohibition is placing the United States under increased scrutiny and pressure from the international community.

The Inter-American Commission on Human Rights has subsequently re-affirmed its ruling in three US cases involving juvenile offenders; Napoleon Beazeley, Gary Graham and Douglas Thomas.