The Bali 9 case – where has international law gone?

The Bali 9 case – where has international law gone?

Andrew Byrnes
Professor of International Law
Australian Human Rights Centre
Faculty of Law
University of New South Wales

Andrew.Byrnes@unsw.edu.au
@acbyrnes_andrew

30 January 2015

 

1.         The Australian government’s efforts to persuade the Indonesian government to grant clemency to Andrew Chan and Myuran Sukumaran involve the negotiation of difficult and sensitive diplomatic terrain. Understandably, the government held back on diplomatic intervention until the legal process had more or less run its course. As in previous cases involving Australians under sentence of death abroad, the government has made, and continues to make, direct diplomatic representations, including at the level of Prime Minister and Foreign Minister, with relatively low-key statements in the media. This seems prudent – direct demands made of or attacks on a foreign government are likely to be counterproductive at a time when there is still a possibility that a death sentence may be commuted.

2.         At the same time a critical element is missing from the public discussion of the cases. This is the fact that Indonesia’s imposition of the death sentence for drug offences is almost certainly a violation of its international obligations under the International Covenant on Civil and Political Rights (ICCPR), to which Indonesia became a party in 2006. Australia has been a party to the Covenant since 1980.

3.         Although the Covenant does not prohibit the imposition of the death penalty absolutely, it restricts its use to cases involving only “the most serious crimes”. The United Nations Human Rights Committee, the body of independent experts elected by States to monitor implementation of the Covenant, has consistently stated that this phrase sets out an international standard. The determination of what constitutes a “most serious crime” is not something which is left solely to the judgment of individual states. The Committee’s view is that the death penalty can only be justified in some cases of intentional killing, and that even serious drug trafficking offences do not fall into the category “most serious crimes”.

4.         This issue was considered in 2007 by the Indonesian Constitutional Court in a challenge to the law permitting the imposition of the death penalty for drug trafficking. A majority of the Court found that the law was not inconsistent with the right to life under the Indonesian Constitution, and, employing reasoning that was flawed and misconstrued international law, found that drug trafficking offences could be viewed as among the “most serious crimes” for which the death penalty could be imposed.

5.         That latter conclusion was decisively rejected by the Human Rights Committee in its 2013 review of Indonesia’s first report under the ICCPR. The Committee regretted Indonesia’s lifting of its moratorium on the execution of the death penalty and restated its view that drug crimes did not amount to the “most serious crimes”. The Committee called on Indonesia to review its legislation and stated that it “should consider commuting all sentences of death imposed on persons convicted for drug crimes.”

6.         While these conclusions are not formally binding under international law (the Committee is not a court), the Committee’s views are widely considered as expert and authoritative interpretations of the Covenant. Governments are obliged to give due consideration to and are expected to provide reasoned justifications for failing to respect them.

7.         None of the public statements of the Australian government appear refer to international human rights law or make the argument that Indonesia’s actions violate its obligations under international law. The government’s position is expressed in in terms of Australia’s objection to the death penalty “as a matter of principle” (not law), and Australia seeks a discretionary grant of clemency to reflect the particular circumstances of the particular offenders and the rehabilitation they have undergone. The government has regularly referred to Indonesia’s sovereignty to make and enforce its own laws in this matter and Australia’s obligation to respect that sovereignty. A request for clemency is seen as consistent with respect for the petitioned State’s sovereignty.

8.         While a frontal attack on another nation’s sovereignty is generally unproductive, Indonesia’s sovereignty has limited its own sovereignty in this context by its voluntary acceptance of obligations under the ICCPR. If Indonesia does not have the right under international law to impose the death penalty in such cases, then references to Indonesia’s sovereignty in this context are simply beside the point legally, however prudent they may be in diplomatic terms.

9.         As both Indonesia and Australia are parties to the Covenant, Indonesia owes an obligation under international law to Australia (and other countries) not to impose the death penalty in relation to drug offences. It is not clear whether these arguments about the international illegality of the death sentences have been made in the confidential representations made by Australia to the Indonesian government – one hopes that they have been. Whether they are likely to persuade is of course another matter.

10.       If it appears that the options presently being pursued are unlikely to succeed in halting the executions, one way for the Australian government to pursue the matter might be to propose international adjudication of the issue. That would not be easy and would require Indonesian cooperation in the process.

11.       The difficulty is that there is no immediately available international forum to which the question could be referred. However, the ICCPR provides for a procedure under which one State party to the Covenant can complain to the UN Human Rights Committee that another State party is not fulfilling its obligations under the Covenant. The procedure involves a period of consultation between the States concerned, followed by referral to the committee and, if the matter is not resolved, referral to a conciliation commission.

12.       While neither Australia nor Indonesia has accepted this procedure, it is open to States parties to accept it at any time. There would appear to be nothing to prevent the two governments from accepting the procedure, thus allowing the case to be brought before the Committee. Indonesia may be reluctant to agree, but it will never do so unless Australia proposes this as a cooperative and principled way to resolve the matter.

13.       Another option would be to propose referring the matter to the International Court of Justice. However, although Australia has accepted the jurisdiction of the Court, Indonesia has not. Nonetheless, it would be possible for Indonesia to agree to the Court hearing this particular case, but once again it will not do so if Australia does not propose it. In 1998 Indonesia was prepared to submit to the Court a dispute with Malaysia in relation to sovereignty over two small islands off Borneo. Of course, disputes over territory may be viewed as different to this type of case, and the fact that Malaysia won that case may also not be helpful in persuading Indonesia to this course of action.

14.       It may be these options have been considered within government and dismissed as inappropriate at this stage, unlikely to succeed, or incompatible with Australia’s broader interests in its important but at times difficult relationship with Indonesia. It may be that they have already been or will be proposed to the Indonesian government. It may be that they are quixotic, and one can never be entirely sure in advance of the outcome of independent adjudication of a dispute. But for a government committed to making “every possible effort” to prevent the proposed executions, it would be disappointing if they were not to be raised with the Indonesian government.

15.       In any event, the apparent disappearance of applicable norms of international law from this aspect of the two countries’ relationship is of concern. It may be that the government does not wish to rely on the Human Rights Committee given its own record of rejecting findings by that Committee which do not line up with its own ICCPR interpretations or policies. It may be that appealing to Indonesia to observe its international obligations would be seen as unhelpfully confrontational when mollification is required. Or it may be problematic in light of the recent violations of international law Australia committed by its incursions into Indonesian waters as part of Operation Sovereign Borders. In other contexts we instructed by government how important the observance of international law is to Australia’s vision of its role as a middle power and to the pursuit of Australia’s interests. It is not clear why it should be any different in this type of case involving the protection of the rights of Australian citizens and, indeed, of others on death row in Indonesia and other countries.

 

 

Andrew Byrnes is Professor of Law, Australian Human Rights Centre, Faculty of Law, University of New South Wales. He has served as the President of the Australian and New Zealand Society of International Law (20092013) and as external legal adviser to the Parliamentary Joint Committee on Human Rights (20122014). He has provided expert evidence on the consistency of the death penalty with international human rights law in a number of cases before the Indonesian courts, including the Constitutional Court of Indonesia in 2007 and in the District Court of Denpasar in 2010 and 2012 (in a case which is still underway). 

 

 

 

Photo credit: Charles Wiriawan (adapted).