The Obligation on Abolitionist States to Withhold Assistance in Foreign Proceedings That May Result in Death Penalty

Abstract

In 2018, the UK Home Secretary agreed to provide information on two prisoners facing capital charges in the US, despite the US refusing to provide assurances that the death penalty will not be sought for the individuals in question. This decision was made despite the UK’s status as a death penalty abolitionist State, and despite its ratification of the International Covenant on Civil and Political Rights (“ICCPR”) and the European Convention on Human Rights (“ECHR”). Upon challenge in 2019, the UK Queen’s Bench upheld the Home Secretary’s decision, in the case Maha Elgizouli. While the UK Supreme Court overturned the Queen’s Bench decision in 2020, its rationale rested on the UK’s data privacy law, with the majority asserting that international law and UK common law had not yet developed so as to recognise an obligation on abolitionist States to withhold the provision Mutual Legal Assistance (“MLA”) to retentionist States for use in criminal proceedings that may result in death penalty, in the absence of assurances that capital punishment will not be imposed.

This study examines the accuracy of this assertion in the international context. When considering the extent to which abolitionist States can be held responsible in these circumstances, we are presented with a complex web of international legal doctrine. This study considers how the relevant rules and principles operate and interact, with the aim of determining and clarifying the conditions in which abolitionist States party to the ICCPR and/or the ECHR may be held responsible for facilitating the use of the death penalty through the provision of MLA. By considering the law of State responsibility for internationally wrongful acts alongside relevant human rights law stemming from the ICCPR and the ECHR, this study asserts that such an obligation can be discerned from these conventions (especially considering that both instruments prohibit abolitionist States from extraditing or expelling individuals where there is risk they will face capital punishment in the receiving State). However, this study outlines that, from a jurisdictional standpoint, there are factual and conceptual differences between extradition and provision of MLA, which may impede a finding of direct State responsibility in the circumstances of this study.

Accordingly, this study moves to examine the law on State complicity in the death penalty. Through examining State responsibility for “aid and assistance” per the International Law Commission’s Articles on State Responsibility, the “obligation to protect” in human rights law, and the concept of complicity in other contexts of the human rights framework, this thesis arrives at the conclusion that if jurisdictional limits of the ICCPR and the ECHR obstruct a finding of primary responsibility of the abolitionist State, derivative responsibility can still be established in these circumstances, for the State’s “aid or assistance” in capital punishment.