June 1, 2015
By Amarpreet Cheema – Research Assistant
On Wednesday April 29, 2015 Indonesia carried out the executions of the Bali Nine on Nusakambangan Island through a firing squad. Recently, Indonesia has been dealing with major drug related problems, which have resulted in the toughening of the government’s stance on clemency for such offences. All were convicted in 2006 of drug related crimes relating back to their respective parts in the Bali Nine heroin-smuggling ring. Those who were executed were a mix of nationalities: Australians, Ghanaian, Indonesian, Nigerians, and Brazilian. At the last minute, Mary Jane Fiesta Veloso, of the Philippines, was given a reprieve as the police had in their custody the woman that is believed to have hid on the drugs on her.  French national, Serge Areski Atlaoui, who was also convicted, has an outstanding appeal and was not executed, although is still expected to. Despite diplomatic efforts and international pressure Indonesia remained steadfast and carried out the executions. These executions have resulted in the weakening of the relations between Australia and Indonesia, causing rippling effects of instability in the region and within the international community. Tensions have continued to worsen as the Australia has summoned back its ambassador from Indonesia. The implementation of the death penalty has come to the forefront of human rights agendas in the global community. Many of those countries that have joined the growing trend towards the limiting or complete abolition of the death penalty have signed treaties to this effect and are under an obligation to fulfil those requirements. Indonesia has joined the international community in this campaign but its recent hard-line stance questions its adherence to international law. As will be shown, Indonesia has failed to uphold its treaty obligations that indicate a clear breach in international law that they should be held accountable for. Human rights should be inviolable and Indonesia continued use of the death penalty undermines this inalienability.
Since the end of the Second World War, the international community has dedicated itself to upholding and promoting human rights. At the cornerstone of human rights is the inviolability of the notion that individuals have a right to life. Article 3 of the Universal Declaration on Human Rights clearly states: “Everyone has the right to life, liberty and security of person”. As the international community is in a period of normative transition this notion has resonated in a plethora of treaties and legal institutions within both states and globally. Notably, the legally binding International Covenant on Civil and Political Rights (ICCPR), of which Indonesia is a signatory, is important to highlight. According to Article 6 of the ICCPR, “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life”. This right to life is a non-derogable right as it is fundamental to the international community’s quest to protect the individual. As indicated in Article 6(2) of the ICCPR, “countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes”. Accordingly, legal scholars and commentators have highlighted that “Indonesia may only impose the death penalty for the ‘most serious crimes’. International law does not recognise drug trafficking as meeting this threshold”. The UN Secretary-General has reiterated this sentiment in his appeal to President Joko Widodo and has urged for a moratorium on capital punishment with the hopes that this would eventually lead to a termination in its use. It is worth noting that Indonesia has not ratified the Second Optional Protocol the ICCPR regarding the abolition of the death penalty. However, it has an obligation under international law to uphold the inherent dignity of human life in good faith “in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. It is arguable that Indonesia has failed to do so by including drug trafficking as a major crime. The issue is not whether drug related crimes are serious offences but rather that they do not amount to the gravest of wrongdoings in the international hierarchy. The treaty should be read in the strictest sense and this widening by Indonesia is not only a violation of their obligation but has the potential to create an unsettling precedent.
Further, an argument can be made that the implementation of the death penalty as a punishment is in contravention of Indonesia’s treaty obligations under the UN’s Convention against Torture. In particular, this treaty reasserts the notion that torture constitutes cruel, inhuman and degrading treatment. In recent years, the legal community has developed a new doctrine, the death row phenomenon that makes a case against the death penalty by framing it as a form of torture. The premise of the argument put forth is that lengthy delays that often occur for death row inmates can be amount to cruel and inhuman punishment. Thus, from this position the contention that arises is not the sentence itself, but rather the implementation of the death penalty after a prolonged and tormenting delay.This phenomenon has garnered much support within the international community as a defense mechanism against the death penalty. Since it was first used successfully, it has emerged as a viable legal doctrine to combat the implementation of the death penalty. As such, it is important to keep in mind when evaluating the recent executions by Indonesia that not only is there a strong case that they breached various treaty obligations, but, there is legal precedent that indicates they have failed to uphold in good faith their duty under the Convention against Torture.
The global discourse on human rights has centered on the notion that the individuals right to life and their inherent dignity is paramount. However, the failure to prevent these executions and the subsequent lack of repercussions for Indonesia has shaken notions of inviolability of the right to life. In a statement by Amnesty International, UK Director Kate Allen stated that: “The world has watched on as this theatre of cruelty played out, with this most tragic of endings. It did not have to come to this. The death penalty is never the answer”. The archaic use of the death penalty has not proven to be a deterrent for criminal activity. Thus, Indonesia’s argument that it was reinstating this punishment as a mechanism to prevent the drug emergency lacks credibility. The use of the death penalty has little support as a method of deterrence. It is a slippery slope where those who are innocent have no real chance at exoneration in the future and leaves the notion of justice hanging in a balance. The continued use of the death penalty does not address the issue of prevention and is at best a cruel representation of the desire for retribution. The right to human life is inherent and Indonesia has undermined this claim, which has called into question the legality of its actions. The international community has been faced with the gruelling images of mass executions of innocent people committed by the Islamic State (IS). These deaths should be a stark reminder as to the importance of protecting the right to life and the danger that exists in allowing the death penalty for non-serious crimes. With the potentiality to be misused and cases to be mishandled, this leaves the use of the death penalty as a reactionary tool opposed to a preventive one. As the notion of the death row phenomenon deepens the legal argument against executions, the hope is that those who might be in these circumstances could have a potential recourse to protect them from states that continue to choose this form of punishment. The rise of this phenomenon also provides another form of legal protection from those states that fail to meet their treaty obligations. The increase recognition of this notion indicates a strengthening of the international community’s stance against the use of the death penalty by labelling its as tortious. Thus, it is imperative that the global community strengthens its approach towards eradicating the death penalty and to implement stringent repercussions for states that fail to uphold treaty obligations, particularly those related to human rights. As a collective we cannot argue to rally around the notion of human rights and allow the continued use of the death penalty. Human rights will only prevail if abolition becomes the adopted norm.
 The Universal Declaration of Human Rights
 International Covenant on Civil and Political Rights
 D Rothwell, ‘Law experts say Indonesia death penalty is illegal’ (Australian National University Newsroom, 27 April 2015) < http://www.anu.edu.au/news/all-news/law-experts-say-indonesian-death-penalty-is-illegal> accessed 9 May 2015.
B Ki-Moon, ‘Statement attributable to the Spokesman for the Secretary-General on announcement of executions in Indonesia (25 April 2015) <http://www.un.org/sg/statements/index.asp?nid=8578 > accessed 11 May 2015.
 Vienna Convention Article 31 (1).
 P Hudson, “Does the Death Row Phenomenon Violate a Prisoner’s Human Rights under International Law?” (2000) EJIL 11:4, 833.
 Soering v United Kingdom ((1989) 11 E.H.R.R. 439
 Amnesty International UK, ‘Indonesia: ‘Theatre of cruelty’ condemned as executions go ahead’ (28 April 2015) < http://www.amnesty.org.uk/press-releases/indonesia-theatre-cruelty-condemned-executions-go-ahead > accessed 13 May 2015.
 G Philips, “Death Penalty: The Present Day Threat To Human Life” (2014) MELINTAS 30:1, 6.