Juvenile execution, terrorist extradition, and supreme court discretion to consider international death penalty jurisprudence.

• Author: Burleson, Elizabeth

1. INTRODUCTION

   Multilateral treaties and international institutions have impacted the extradition of capital offenders and influenced the development of human rights law within the United States. Refusal to extradite without assurances that the death penalty will not be imposed has continuing ramifications for the implementation of transnational counter-terrorism measures. In the absence of consensus regarding the death penalty, prohibition against torture has served as justification for not extraditing people who would be likely to face death sentences. Determining a contemporary standard of decency regarding cruel and unusual punishment, what shocks the public conscience, or what constitutes torture depends upon what societal parameters one uses. Should capital punishment remain within the purview of provincial criminal law, depend upon national sentiment, or consider international legal standards?

   The execution of foreign nationals without notification of their consular rights has internationalized the United States' death penalty policy. Recently, the United States Supreme Court has been willing to consider international developments in relation to evolving standards of decency. The Court has extended greater protection on the basis of sexual orientation and prohibited the execution of individuals with mental retardation. In Roper v. Simmons, the United States Supreme Court determined that it is cruel and unusual to execute sixteen and seventeen year olds. (1) Prior to 2005, the United States had executed seventy percent of the juveniles that have been put to death worldwide since 1998. (2) Up until the Roper decision, there were eighty-two people between the ages of sixteen and eighteen on death row in the United States. (3)

   While customary international law prohibiting capital punishment has yet to fully develop, collective condemnation of torture exists and has had a significant impact on extradition law. In Soering v. United Kingdom, the European Court of Human Rights held that the United States would expose Soering to a real risk of torture in violation of the European Convention on Human Rights ("ECHR"). (4) The European Court of Human Rights based its decision on the length of time that Soering was likely to spend on death row in Virginia; the mounting anxiety of awaiting execution; and on Soering's youth and mental state at the time of the offense. (5) While subsequent decisions around the world have not always followed Soering, a growing body of case law provides a warning to States that still use the death penalty that their extradition treaties may not be upheld without assurances that capital punishment will not be imposed.

   This article considers the obligations of a supreme court in a liberal democracy and the effect that public opinion has upon the legality of the death penalty. Given the mounting need for international coordination to maintain peace and security, a consensus must be reached regarding capital punishment.

2. THE EFFECT OF MULTILATERAL AND REGIONAL TREATIES ON CAPITAL PUNISHMENT

   As criminal conduct increasingly becomes transboundary, the European Court of Human Rights continues to clarify the scope of the ECHR. A per se rule is developing against extradition of a suspect who potentially will face capital punishment. (6) Ocalan v. Turkey may shed light on whether member States can extradite terrorist suspects to nonmember States if there is a risk that they will receive the death penalty. (7)

   1. Extradition and the War on Terrorism

      The war on terrorism has concentrated efforts to bring to justice suspects who free across international borders. Extradition proceedings allow the international community to consider the lawful parameters of such a war vis a vis human rights. Soering v. United Kingdom provides a guide for countries who extradite suspects to retentionist States. (8) Ocalan v. Turkey further clarifies the balance that should be struck between fundamental human rights and counter-terrorism measures in regard to the extradition of terrorist suspects. (9)

      In 1998, Syria expelled a Turkish national, Abdullah Oealan. Prior to this expulsion, Syria had protected Ocalan for years from Turkish prosecution for his leadership of the Kurdistan Workers' Party ("PKK"). Ocalan traveled from Greece to Russia to Italy. The latter refused Turkey's extradition request since Ocalan faced a real risk of being sentenced to death. The Turkish Government eventually caught him in Kenya on February 15, 1999. His abduction, blindfolding, and lack of access to legal assistance led the European Court of Human Rights to rule that the death sentence imposed by the Ankara State Security Court and upheld by the Court of Cassation violated the ECHR. (10)

      It remains to be seen whether the European Court of Human Rights will reinforce the Article 3 human rights test set forth in Soering in light of the war on terrorism. Thus far, Europe has remained resolute concerning non-extradition in death penalty cases. The United Kingdom ratified Protocol 13 on October 10, 2003. On December 16, 2003, President George W. Bush called for Saddam Hussein to receive a death sentence. (11) Bruce Zagaris notes that, "Mr. Hussein will be tried by an occupied country with no legitimate government and by a criminal justice system with little experience in the complex legal issues posed by this trial." (12) He goes on to note that although the Coalition Provisional Authority suspended capital punishment in Iraq, the death penalty remains on the books and could be brought back in a case against Saddam Hussein. On June 29, 2004, the European Court of Human Rights declined to grant Saddam Hussein's interim measure request:

      to permanently prohibit the United Kingdom from facilitating, allowing for, acquiescing in, or in any other form whatsoever effectively participating, through an act or omission, in the transfer of the applicant to the custody of the Iraqi Interim Government unless and until the Iraqi Interim Government has provided adequate assurances that the applicant will not be subject to the death penalty. (13) Saddam Hussein may still pursue a case before the European Court of Human Rights that the United Kingdom violated Article 3 of the ECHR by not requiring assurances that he will not face a death sentence. (14) Such a case might clarify ECHR member obligations outside of Europe.

      In light of increased global terrorism, the United States and the European Union have agreed to speed up extradition of suspected terrorists. Yet fast track extradition retains the following anti-death penalty article:

      Where the offence for which extradition is sought is punishable by death under the laws in the requesting State and not punishable by death under the laws in the requested State, the requested State may grant extradition on the condition that the death penalty shall not be imposed on the person sought, or if for procedural reasons such condition cannot be complied with by the requesting State, on condition that the death penalty if imposed shall not be carried out. If the requesting State accepts extradition subject to conditions pursuant to this Article, it shall comply with the conditions. If the requesting State does not accept the conditions, the request for extradition may be denied. (15) The execution of foreign nationals and extradition of suspects arrested in other countries who are wanted for crimes in the United States raises the use of capital punishment in the United States to an international level. Extraditing people who may face death sentences is unacceptable to an increasing number of countries. Counter terrorism measures and the war on terrorism have strained already tenuous diplomatic relationships, particularly when suspects may be tried in military tribunals that do not have due process procedures comparable to those of civilian courts. (16) Canada and Mexico have joined European countries in refusing to extradite if a suspect faces a death sentence within the United States. (17) Having lost its seat on the United Nations Commission on Human Rights in 2001, and only recently being allowed re-admittance, the United States does not want the further notoriety of losing observer status in the Council of Europe. Yet, United States death penalty policy jeopardizes relations with the European Union, which has made progress toward abolition as a requirement of admission. (18)

   2. Foreign Nationals: Mexico v. United States and Notification of Consular Rights

      International law may not develop as a result of prosecuting former heads of state such as Saddam Hussein or Pinochet, but international norms are impacting the United States' death penalty policy in other ways. International views are beginning to influence due process provisions for foreign nationals facing death sentences.

      1. Mexico v. United States and Notification of Consular Rights

         The United States has been criticized severely by the international community for violating the Vienna Convention on Consular Relations ("Vienna Convention"). (19) Years of noncompliance came to a head when Paraguay attempted to intervene on behalf of its national, Breard, who had a scheduled execution in Virginia in 1998. (20) Paraguay brought a case to the International Court of Justice ("ICJ"), receiving an order for a stay of execution. (21)

         The United States did not honor the order and Breard was executed. Similarly, in 2001, the ICJ ruled in LaGrand Case that the United States had violated international law by refusing to notify two German defendants of their rights to consular advice under the Vienna Convention, and in refusing to stay the order of execution until the ICJ had reached a decision. (22) The two Germans had not been informed of their consular rights, prompting Germany to bring a case before the ICJ, which unanimously agreed upon a stay of execution. (23) When the United States rejected the order and proceeded to execute the brothers, Germany...