Sifris, Ronli --- "Balancing Abolitionism and Cooperation on the World's Scale: The Case of the Bali Nine" [2007] FedLawRw 3; (2007) 35(1) Federal Law Review 81
[*] BA LLB (Hons) (Monash University); LLM (New York University). The author would like to thank Professor Philip Alston, William Van Esveld, Liliana Jubilut and Maria Varaki as well as the anonymous referee for comments on drafts of this article.
[1] Hans Kelsen, 'Das Problem der Souveränität und die Theorie des Völkerrechts. Beitrag zu Einer Reinen Rechtslehre' (1920) cited in Danilo Zolo, 'Hans Kelsen: International Peace through International Law' (1998) 9 European Journal of International Law 306, 308.
[2] In this context extraordinary rendition 'is the transfer of an individual, with the involvement of the US or its agents, to a foreign State in circumstances that make it more likely than not that the individual will be subjected to torture or cruel, inhuman, or degrading (CID) treatment.' Jane Huckerby and Meg Satterthwaite (eds), Torture by Proxy: International Law Applicable to Extraordinary Renditions (2005) Center for Human Rights and Global Justice at New York University School of Law <http://www.nyuhr.org/docs/ APPG-NYU%20Briefing%20Paper.pdf> at [3 May 2007].
[3] Rush v Commissioner of Police [2006] FCA 12; [2006] 150 FCR 165, 172.
[4] Ibid 173 (emphasis added).
[5] Ibid 174.
[6] Norm Aisbett and Natalie O'Brien, 'Australian Agent Bid to Interview Alleged Heroin Smugglers', The Australian (Sydney), 21 April 2005, 5; Drew Warne-Smith and Sian Powell, 'They'll Kill My Family if I Dob: Bali Drug Mule', The Australian (Sydney), 21 April 2005, 1.
[7] Simon Kearney and Sian Powell, 'Four More Join Bali Nine — Mobile Records Lead to First Australian Arrests Over Heroin Bust', The Australian (Sydney), 7 May 2005, 1; Stephen Fitzpatrick, 'Prosecutors to Spare None of the Bali Nine', The Australian (Sydney), 28 September 2005, 5.
[8] Stephen Fitzpatrick, 'Facing a Fatal Finale', The Australian (Sydney), 10 October 2005, 10.
[9] New South Wales Council for Civil Liberties, 'AFP Should Stop Aiding and Abetting the Death Penalty' (Press Release, April 19 2005).
[10] Mark Forbes, 'Chan: Death Demand "No Problem"', The Age (Melbourne), 27 January 2006, 1, 3; Sian Powell, 'I Was Forced to Smuggle: Bali Drug Mule', The Australian (Sydney), 8 February 2006, 6; Sian Powell and Sid Maher, 'Appeals if Bali Drug Chiefs Spared Death', The Australian (Sydney), 13 February 2006, 3.
[11] Sian Powell, 'Nine Lives in the Balance', The Australian (Melbourne), 16 February 2006, 11.
[12] Mark Forbes, 'Death Call for Bali 9 "Overseer"', The Age (Melbourne), 25 January 2006, 1, 3.
[13] Sian Powell, 'Life Term Stuns "Co-operative" Bali Mule', The Australian (Sydney), 14 February 2006, 3; Mark Forbes, 'Police Have Blood on their Hands, Says Lawyer', The Age (Melbourne), 14 February 2006, 1, 2; Sian Powell, 'Bali Kingpins Sentenced to Death', The Australian (Sydney), 15 February 2006, 1.
[14] Powell, above n 13, 1. Whilst the Australian government has stated that it will appeal for clemency, such appeals are unlikely to be successful: Mark Forbes and Neil McMahon, 'No Hope for Canberra's Bali Pleas', The Age (Melbourne), 18 February 2006, 1; Mark Forbes and Neil McMahon, 'Nine Sentences, Nine Lives, Many Victims', Insight, The Age (Melbourne), 18 February 2006, 1.
[15] Cindy Wockner, 'Bali 9 Ringleaders One Step Closer to Death', Herald Sun (Melbourne), 27 April 2006, 1, 12.
[16] Mark Forbes and Nassim Khadem, 'Bali 9 Sentences Cut to 20 Years', The Age (Melbourne), 28 April 2006, 1, 5.
[17] It should be noted that Renae Lawrence elected not to appeal her 20 year sentence.
[18] Mark Forbes, 'Execution Shock for Four of the Bali Nine', The Age (Melbourne), 6 September 2006, 2.
[19] It should be noted that illicit drug trafficking is viewed as 'one, if not, the biggest of all transnational organized crimes': Sean Eratt (ed), Annual Report for 2000 and Resource Material Series No 59: Analysis of Current Situation on Illicit Drug Trafficking (2002) United Nations Asia and Far East Institute for the Prevention of Crime and the Treatment of Offenders <http://www.unafei.or.jp/english/pdf/PDF_rms/no59/front.pdf> at [3 May 2007].
[20] Simon Kearney and Stephen Fitzpatrick, 'No Choice over Bali: Keelty', The Australian (Sydney), 27 October 2005, 5.
[21] Simon Kearney and Ian Gerard, 'Federal Police to Quiz the Bali Nine', The Australian (Sydney), 21 April 2005, 5.
[22] Ibid.
[23] Justice Michael Kirby, 'The High Court and the Death Penalty – Looking Back, Looking Forward, Looking Around' (2003) 77 Australian Law Journal 811.
[24] Ibid 817.
[25] Forbes and McMahon, above n 14, 1.
[26] 'PM Rejects Clemency Call', The Age (Melbourne), 8 September 2006.
[27] GA Res 44/128, UN GAOR, 44th sess, Supp No 49, UN Doc A/44/49 (1989).
[28] Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, (2nd ed, 2005) 153.
[29] Whilst Australia is prima facie an abolitionist country, Australian society's commitment to death penalty abolition should, to some extent, be questioned. In August 2003, a poll was conducted in a national newspaper which posed the question: would you personally be in favour or against the introduction of the death penalty in Australia for those found guilty of committing major acts of terrorism? Fifty-six per cent of respondents answered in the affirmative: Steve Lewis, 'Terrorists Should Die: Poll', The Australian (Sydney), 19 August 2003, 1.
[30] The Question of the Death Penalty, CHR Res 2005/59, 61st sess, E/CN.4/RES/2005/59. It should be noted that on 3 April 2006 the General Assembly passed a resolution replacing the Commission of Human Rights with the Human Rights Council (Human Rights Council, GA Res 60/251, 60th sess, A/RES/60/251). For a basic overview of the transition from Commission of Human Rights to Human Rights Council see: <http://www.un.org/News/dh/infocus/hr_council/hr_q_and_a.htm> at [3
May 2007].
[31] Tom Hyland, 'Man Faces Death after AFP Drug Help', The Age (Melbourne), 19 February 2006, 1, 4.
[32] Extradition Treaty between Australia and the Republic of Indonesia, 22 April 1992, [1995] ATS 7 (entered into force 21 January 1995) ('Extradition Treaty').
[33] Extradition Treaty, 22 April 1992, [1995] ATS 7, art 7 (entered into force 21 January 1995).
[34] Treaty between Australia and the Republic of Indonesia on Mutual Assistance in Criminal Matters, 27 October 1995, [1999] ATS 10 (entered into force 17 July 1995) ('Mutual Assistance Treaty').
[35] WC Gilmore, 'The Provisions Designed to Protect Fundamental Rights in Extradition and Mutual Assistance in Criminal Matters Treaties' in Oxford Conference Papers, International Co-operation in Criminal Matters: Balancing the Protection of Human Rights with the Needs of Law Enforcement (1998) 67.
[36] Robert J Currie, 'Human Rights and International Mutual Legal Assistance: Resolving the Tension' (2000) 11 Criminal Law Forum 143, 159.
[37] 13 November 2006, Australia–Indonesia, [2006] ATNIF 25 (not yet in force).
[38] It should be noted that pursuant to s 8(1A) assistance may be granted where special circumstances exist. Special circumstances include where the evidence would assist the defence or where the foreign country undertakes not to impose or carry out the death penalty: Australian Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Provisions of the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Bill (2005) 39. In addition, it should be noted that, in the case of the Bali Nine, no request was ever made by the Indonesian government or by the Australian government under the provisions of the Mutual Assistance in Criminal Matters Act 1987 (Cth): Rush v Commissioner of Police [2006] FCA 12; [2006] 150 FCR 165, 175.
[39] When referring to cl 8 of the Mutual Assistance in Criminal Matters Bill 1986 (Cth), later the Mutual Assistance Act, in the second reading speech, Mr Lionel Bowen simply stated that:
Clause 8 is a particularly important clause in that it sets out circumstances in which [the Attorney-General can refuse assistance]. These exceptions to the provision of assistance are designed to ensure that national and State interests are safeguarded and that no injustice or oppression is caused to individuals. The substantive parts of the Bill also reflect the concern that Australia, in responding to a foreign request for assistance, should not unfairly disadvantage any individual.
This rhetoric provides no insight as to why the legislation distinguishes between the provision of assistance where the person has been charged and the provision of assistance where the person has not been charged: Commonwealth, Parliamentary Debates, House of Representatives, 22 October 1986, 2558 (Lionel Bowen, Deputy Prime Minister, Attorney-General).
[40] Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 (Cth), amending Australian Federal Police Act 1979 (Cth), long title.
[41] Australian Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Provisions of the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Bill 2005 (2005) [3.102].
[42] The discussion of the Senate Committee relating to this Bill is available at <http://www.aph.gov.au/hansard/senate/commttee/S8608.pdf> at [3 May 2007].
[43] The AFP Guide as amended in August 2006 maintains this basic premise but also stipulates that:
Information provided by the AFP to foreign law enforcement agencies must be in accordance with the Australian Federal Police Act 1979, and any other legislation, treaty, convention, Ministerial Direction, agreement, memorandum of understanding, policy, guideline, and practical guide or associated document relevant to the provision of information to foreign law enforcement agencies.
AFP Practical Guide on International Police to Police Assistance in Death Penalty Charge Situations (2006) Australian Federal Police <http://afp.gov.au/__data/assets/ pdf_file/21096/Guideline_for_international_death_penalty_situation.pdf> at [3 May 2007].
[44] AFP Practical Guide on International Police to Police Assistance in Death Penalty Charge Situations (2004) Australian Federal Police <http://www.nswccl.org.au/docs/pdf/ afp%20dp%20guidelines.pdf> at [3 May 2007] (emphasis added). It should be noted that the August 2006 amendments state that the Minister for Justice and Customs may decide that police to police assistance can continue to be provided. Thus whilst the pre-August 2006 Guide assumes that assistance will be provided but that it can be refused, the post-August 2006 Guide assumes that assistance will be refused but can be provided in certain circumstances. In addition, the post-August 2006 Guide specifically states that the AFP will seek advice from the Attorney-General or the Minister on a case-by-case basis to ensure ongoing AFP actions correlate with Australian Government policy and other international obligations.
AFP Practical Guide on International Police to Police Assistance in Death Penalty Charge Situations (2006), above n 43.
[45] Vienna Convention on Consular Relations, 24 April 1963, 596 UNTS 261 (entered into force 19 March 1967). For example, art 36 secures the right of nationals to effective communication with the consular officers of their country.
[46] Natalino Ronzitti, Rescuing Nationals Abroad Through Military Coercion and Intervention on Grounds of Humanity (1985) 26–7, quoting Morrison in Parliamentary Debates (Hansard), Fifth Series, Vol 488, House of Commons Official Report, 10143, 29 May 1951 (emphasis added).
[47] Ibid 32, citing UN SCOR, 873rd mtg, [118] (1960).
[48] [2004] ZACC 5; 2005 (4) SA 235 (CC) ('Kaunda Case').
[49] Ibid [2], [17], [19].
[50] Ibid [98]–[99].
[51] Ibid [80].
[53] Ibid 69.
[54] International Law Commission, Report on the Work of its Fifty-Eighth Session, 58th sess, Supp No 10, UN Doc A/61/10 (2006).
[55] The text of the draft articles may be accessed directly at: <http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/9_8_2006.pdf> at [3 May 2007], where the text is adopted by the International Law Commission at its 58th session, in 2006, and submitted to the General Assembly as a part of the Commission's report covering the work of that session. It should be noted that the official records of the 64th plenary meeting of the 61st session of the General Assembly state that:
By the terms of draft resolution II, entitled "Diplomatic protection", the General Assembly would express its appreciation to the International Law Commission for its continuing contribution to the codification and progressive development of international law, take note of the draft articles on diplomatic protection presented by the Commission and invite Governments to submit reports concerning the recommendation by the Commission to elaborate a convention on the basis of its draft articles. The Assembly would also decide to include in the provisional agenda of its sixty-second session an item entitled "Diplomatic protection".
See UN GAOR 61st sess, 64th plenary mtg, UN Doc A/61/PV.64 <http://daccessdds.un.org/doc/UNDOC/GEN/N06/639/74/PDF/N0663974.pdf?OpenElement> at [3 May 2007].
[56] International Law Commission, above n 54, 94.
[57] Ibid 95–96.
[58] Ibid 96–97.
[59] Joel Feinberg, The Moral Limits of the Criminal Law Volume 1: Harm to Others (2nd ed, 1987) 12.
[60] Ibid 36.
[61] Ibid 37.
[62] Ibid.
[63] Ibid 79.
[64] Ibid 81.
[65] Ibid 93.
[66] Ibid 105–6.
[67] Ibid 112.
[68] Ibid 108.
[69] Ibid.
[70] Ibid.
[71] Ibid 217.
[72] Fran Kelly, Interview with Alexander Downer, Minister for Foreign Affairs (Radio National, 15 February 2006).
[73] John Dowd of the International Commission of Jurists (Australia) has observed that there are three important milestones to be achieved before a country can be considered truly abolitionist: abolition of the death penalty as a sentence of law; non-refoulement of people to face the death penalty in retentionist countries; and a refusal to provide police-to-police assistance where the death penalty might apply: Minutes of Meeting of Anti-Capital Punishment Roundtable of the NSW Council for Civil Liberties, 4 February 2006 (copy on file with author).
[74] GA Res 2200A (XXI), UN GAOR, 21st sess, Supp No 16, art 6, UN Doc A/6316 (1966).
[75] GA Res 44/128, UN GAOR, 44th sess, Supp No 49, UN Doc A/44/49 (1989).
[76] See, eg, The Question of the Death Penalty, CHR Res 2005/59, 61st sess, E/CN.4/RES/2005/59. It should be noted that resolutions of the Human Rights Commission do not have the status of binding law.
[77] Opened for signature 4 November 1950, ETS 5, art 2 (entered into force 3 September 1953).
[78] Opened for signature 28 April 1983, ETS 114 (entered into force 1 March 1985).
[79] Opened for signature 3 May 2002, ETS 187 (entered into force 1 July 2003).
[80] 21 November 1969, 1144 UNTS 123 (entered into force 18 July 1978).
[81] 8 June 1990, OASTS 73 (not yet in force).
[82] '13th Activity Report of the African Commission on Human and Peoples' Rights' (OAU Doc AHG/Dec.153(XXXV), 2000), 45.
[83] Facts and Figures on the Death Penalty (2007) Amnesty International <http://web.amnesty.org/pages/deathpenalty-facts-eng> at [3 May 2007].
[84] Matti Joutsen, 'International Cooperation against Transnational Organized Crime: Extradition and Mutual Legal Assistance in Criminal Matters' in Sean Eratt (ed), Annual Report for 2000 and Resource Material Series No 59: Analysis of Current Situation on Illicit Drug Trafficking (2002) United Nations Asia and Far East Institute for the Prevention of Crime and the Treatment of Offenders, 390 <http://www.unafei.or.jp/english/ pdf/PDF_rms/no59/front.pdf> at [3 May 2007].
[85] Charles Clifton Leacock, 'Internationalization of Crime' (2001) 34 New York University Journal of International Law and Policy 263, 273.
[86] Joutsen, above n 84, 392.
[87] [2004] ZACC 5; 2005 (4) SA 235 (CC), [53].
[88] Currie, above n 36, 158.
[89] John Dugard and Christine van den Wyngaert, 'Reconciling Extradition with Human Rights' (1998) 92 American Journal of International Law 187, 187.
[90] Ibid 194.
[91] Dugard and van den Wyngaert, referring to (1983) 60 Yearbook of the Institute of International Law 211, 306, note: 'In 1983 the Institute of International Law adopted a resolution, New Problems of Extradition, following a report prepared by Karl Doehring, which included a paragraph on extradition and human rights': above n 89, 195.
[92] Dugard and van den Wyngaert, citing International Law Association (1994) 66 Conference Report 4, 142–170 and (1996) 67 Conference Report 15, 214–46, note that the International Law Association has approved two reports and adopted two resolutions on this subject: above n 89, 195.
[93] Dugard and van den Wyngaert, referring to (1970) 41 Revue Internationale de Droit Pénal 12, 15, comment: 'The International Association of Penal Law first drew attention to the link between extradition and human rights in its Rome conference of 1969.' They go on to note, citing (1995) 65 Revue Internationale de Droit de Pénal 67, 69: 'Later it adopted a comprehensive resolution on the subject at its conference in Rio de Janeiro in 1994.': above n 89, 196.
[94] Dugard and van den Wyngaert, above n 89, 206–8.
[95] William A Schabas, 'Indirect Abolition: Capital Punishment's Role in Extradition Law and Practice' (2003) 25 Loyola of Los Angeles International and Comparative Law Review 581, 585.
[96] Model Treaty on Extradition, UN GAOR 3d Comm, 45th sess, Agenda Item 100, 6, UN Doc A/RES/45/116 (1991).
[97] Dugard and van den Wyngaert, above n 89, 209–210. It should be noted that if the AFP had arrested the Bali Nine after their return to Australia, the Australian judiciary would clearly have had jurisdiction to hear the cases. For a discussion of the concept of jurisdiction under international law see: Vaughan Lowe, 'Jurisdiction' in Malcolm D Evans (ed), International Law (2003), 329.
[98] It should be noted that traditionally, under the rule of non-inquiry, courts in the requested state would not look into the merits of the charge or examine the judicial system of the requesting state: Anne Mori Kobayashi, 'International and Domestic Approaches to Constitutional Protections of Individual Rights: Reconciling the Soering and Kindler Decisions' (1996) 34 American Criminal Law Review 225, 256.
[99] European Convention on Extradition, opened for signature 13 December 1957, ETS 24, art 11 (entered into force 18 April 1960).
[100] Charter of Fundamental Rights [2000] OJ C 364/1.
[101] Soering v United Kingdom (1989) 161 Eur Court HR (ser A) ('Soering Decision').
[102] Extradition Treaty, 8 June 1972, United States–United Kingdom, 28 UST 227 (entered into force 21 January 1977). It is interesting to note that in 2003, the United States and the United Kingdom negotiated a new extradition treaty, art 7 of which provides:
When the offense for which extradition is sought is punishable by death under the laws in the Requesting State and is not punishable by death under the laws in the Requested State, the executive authority in the Requested State may refuse extradition until the Requesting State provides an assurance that the death penalty will not be imposed or, if imposed, will not be carried out:
Extradition Treaty, 31 March 2003, United States–United Kingdom, S Treaty Doc 108–23. Similar formulations may be seen in recent US extradition treaties with Argentina, France, India, Republic of Korea, Peru, and Poland: 'New US/EU and US/UK Extradition Treaties' (2004) 98 American Journal of International Law 848, 849.
[103] It should be noted that in a concurring opinion Judge de Meyer expressed the view that extradition from an abolitionist state to a retentionist state will per se violate the European Convention.
[104] Soering Decision (1989) 161 Eur Court HR (ser A) 39.
[105] Ibid 42–4. It should be noted that the possibility of extradition to Germany was a relevant factor because Soering was a German citizen and Germany has abolished the death penalty.
[106] Kobayashi, above n 99, 237–9.
[107] Ibid 239.
[108] Schabas, above n 95, 590.
[109] The Human Rights Committee ('Committee') is established under art 28 of the ICCPR and is the organisation responsible for administering the ICCPR.
[110] Communication No 470/1991, UN Doc CCPR/C/48/D/470/1991 (1993) ('Kindler v Canada').
[111] Nowak, above n 28, 153.
[112] Communication No 470/1991, UN Doc CCPR/C/48/D/470/1991 (1993) [13.2].
[113] Communication No 470/1991, UN Doc CCPR/C/48/D/470/1991 (1993) [15.2].
[114] Communication No 469/1991, UN Doc CCPR/C/49/D/469/1991 (1994) ('Ng v Canada').
[115] Ibid [16.2].
[116] Ibid [16.4].
[117] Dugard and van den Wyngaert, above n 89, 199.
[118] Forbes, above n 10.
[119] Mark Forbes, 'Condemned Face Lonely Death at Dawn', The Age (Melbourne), 15 February 2006, 1, 2.
[120] Communication No 706/1996, UN Doc CCPR/C/61/D/706/1996 (1997) ('T v Australia').
[121] Ibid [1]–[2.4].
[122] Ibid [4.2].
[123] Ibid [8.5]. It is worth noting that Eckart Klein and David Kretzmer put forward a strong dissenting opinion. They were of the view that '[a]s the death penalty is mandatory for the offence committed by T in Malaysia, we must assume that this penalty will be imposed in Malaysia' and that '[t]he assurances provided to the State party by the Malaysian authorities … clearly leave open the door to charge T for an offence committed in Malaysia': Communication No 706/1996 UN Doc CCPR/C/61/D/706/1996 (1997) [3]–[4]. They found that extradition of T would violate the ICCPR. It is unclear on what basis Klein and Kretzmer reached this conclusion. It may be presumed that their views were based on the notion that the offence charged would not meet the 'most serious crimes' requirement set out in the ICCPR: Schabas, above n 95, 594. Whilst it is beyond the scope of this article to consider the meaning of 'most serious crimes', it is interesting to note that as in this case, the offences for which members of the Bali Nine have been sentenced to death in Indonesia are drug trafficking offences.
[124] Communication No 829/1998, UN Doc CCPR/C/78/D/829/1998 (2003) ('Judge v Canada').
[125] Ibid [10.4] (emphasis in original).
[126] Nowak, above n 28, 153.
[127] [2001] 1 SCR 283 ('United States v Burns').
[128] Ibid 284–5.
[129] Ibid 284–6, 289–90, 295–7, 303. It should be noted that s 7 of the Canadian Charter of Rights and Freedoms states that: 'Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.': Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11.
[130] Ibid 331–2.
[131] (1990) 29 ILM 1375, 1388–9.
[132] Protocol No 6, opened for signature 28 April 1983, ETS 114 (entered into force 1 March 1985).
[133] (1990) 29 ILM 1375, 1378–88.
[134] Ibid 1384.
[135] Opened for signature 19 June 1951, 199 UNTS 67 (entered into force 23 August 1953).
[136] (1990) 29 ILM 1375, 1389. NATSOFA art VII(3)(a) states that:
1. In cases where the right to exercise jurisdiction is concurrent the following rules shall apply:
a. The military authorities of the sending State shall have the primary right to exercise jurisdiction over a member of a force or of a civilian component in relation to
i. offences solely against the property or security of that State, or offences solely against the person or property of another member of the force or civilian component of that State or of a dependent;
ii. offences arising out of any act or omission done in the performance of official duty.
[137] (1990) 29 ILM 1375, 1384.
[138] Kobayashi, above n 98, 244.
[139] Corte cost, 27 June 1996, 79 Rivista di Diritto Internazionale 815 (1996) ('Venezia Case').
[140] Schabas, above n 95, 597.
[141] Andrea Bianchi, 'International Decision: Venezia v Ministero di Grazia e Giustizia' (1997) 91 American Journal of International Law 727, 727–8.
[142] Corte cost, 27 June 1996, n 223, 79 Rivista di Diritto Internazionale 815 (1996).
[143] Corte cost, 27 June 1996, n 223, 79 Rivista di Diritto Internazionale 815 (1996).
[144] Bianchi, above n 140, 728.
[145] Extradition Treaty between United States and Italy, 13 October 1983, Italy–United States, art IX (entered into force 24 September 1984) provides:
When the offence for which extradition is requested is punishable by death under the laws of the requesting Party … extradition shall be refused, unless the requesting Party provides such assurances as the requested Party considers sufficient that the death penalty shall not be imposed, or, if imposed, shall not be executed:
[146] A/CONF. 183/9 (1998).
[147] Schabas, above n 95, 581. Ultimately, it was decided that the International Criminal Court should not be given the power to impose the death penalty.
[148] 'Mutual legal assistance' has been defined as 'the process whereby one State provides assistance to another in the investigation and prosecution of criminal offences': William Gillmore (ed), Mutual Assistance in Criminal and Business Regulatory Matters (1995) xii.
[149] Schabas, above n 95, 603. Under the agreement, the information provided by France and Germany could be used to establish Moussaoui's guilt but could not be used for the purpose of determining whether capital punishment was an appropriate sentence. See Bruce Zagaris, 'Germans and French Agree to Give Evidence in Moussaoui Case' (2003) 19 International Enforcement Law Reporter 21.
[150] Currie, above n 36, 153.
[151] Ibid.
[152] The exact wording of the proposed clause is:
Assistance shall be refused if it appears to the requested State that there are substantial grounds for believing that the rendering of such assistance would result in a serious violation of the human rights of any person under any treaty for the protection of human rights to which the requested State is a party, under customary international law, or under the domestic law of the requested State.
International Law Association, Report of the Sixty-Eighth Conference Held at Taipei, 1998, 14 quoted in Currie, above n 36, 166.
[153] Currie, above n 36, 166.
[154] Swiss Supreme Court 1st Court of Public Law, 3 May 2004, ATF 130 II 217.
[155] The Swiss Supreme Court was careful to note that Switzerland may provide assistance to another State even in the absence of a treaty requiring it to do so and that it is generally in Switzerland's interests to engage in such international cooperation: see Marc Henzelin, 'Mutual Assistance in Criminal Matters between Switzerland and Taiwan: The Andrew Wang and Others Case' (2005) 3 Journal of International Criminal Justice 790, 795.
[156] Charles Dickens, 1851 quoted in Mathieu Deflem, Policing World Society (2002) 45.
[157] Mary Robinson quoted in Jermey Lehrer, 'Mary Robinson Brings a Determined Faith to Role of United Nations Commissioner for Human Rights' (1998) 25 Human Rights 8, 10–11.
[158] '[W]idely adopted multilateral treaties have greater authority than bilateral treaties by virtue of the fact that there are more states that have adopted the same language governing the particular right or duty': Francisco Forrest Martin, 'Delineating a Hierarchical Outline of International Law Sources and Norms' (2002) 65 Saskatchewan Law Review 333, 358.
[159] Dinah Shelton, 'Hierarchy of Norms and Human Rights: Of Trumps and Winners' (2002) 65 Saskatchewan Law Review 299, 303.
[160] It should be noted that it is easy for the Committee to adopt an approach which prioritises death penalty abolition above international cooperation without attempting to reconcile the two as the Committee is only responsible for interpreting the ICCPR and does not need to consider other aspects of international law.
[161] Editorial, 'Australia Must Take Stronger Stand Against Death Penalty', The Age (Melbourne), 15 February 2006, 20. It should be noted that there are now six people facing the firing squad.
[162] Sir Robert Jennings, 'The Role of the International Court of Justice' (1997) 68 British Yearbook of International Law 58 quoted in Martii Koskenniemi and Päivi Leino, 'Fragmentation of International Law? Postmodern Anxieties' (2002) 15 Leiden Journal of International Law 553, 556.
[163] Kirby, above n 23, 819.