By Tobias Thienel

The U.S. Supreme Court today struck down a Louisiana statute authorising imposition of the death penalty for the rape of a child: Kennedy v. Louisiana. The crime in question was awful beyond words, but the Court held that passing sentence of death for it violated the prohibition of ‘cruel and unusual punishment’ under the Eighth Amendment to the Constitution. That was an express application of the concept of ‘evolving standards of decency’ that the Court has previously regarded as controlling application of the Amendment, but about which the conservative members of the Court are less than happy. As may not have surprised anyone, today’s decision was therefore made by a majority of only 5 to 4. The usual suspects line up on either side as expected. The decision only contains the most passing reference to international opinion imaginable (in that it cites an earlier ‘evolving standards’ case as looking to international opinion), and no reference at all to international law (so far as I can make out). Even so, I would suggest that the Court has done the right thing from the point of view of international law. International law, I would argue, required that (a) the death penalty could not be extended to apply to crimes to which it had not previously applied, and (b) it could not in any event be imposed for the offence at issue in Kennedy. (a) I have made the first argument before, in a comment at Opinio Juris. The point is based squarely on the reasoning of the Human Rights Committee in Judge v. Canada. In that case, the Committee suggested, in interpretation of Article 6 of the ICCPR (by which the U.S. is, of course, bound), that states that had abolished the death penalty could not go back on that advance, not even by sending someone to face a capital trial in a retentionist foreign state (see paras. 10.4 to 10.6). Retention of the death penalty by some states was specifically described as an ‘anomaly’ and a ‘necessary evil’. Now, admittedly, that isn’t quite the same as saying that retentionist states cannot extend the application of the death penalty to crimes not previously covered by it. The Committee only said that once the death penalty had been abolished, it could not be brought back (and no-one could be made, by any route, to face such punishment). But the interpretation seems easily tenable, doesn’t it? The rationale of Article 6(2) through (6) of the ICCPR (by which I mean the Committee’s ‘anomaly’ and ‘necessary evil’ point) is apt to exclude the extension of the death penalty as much as its re-introduction. The wording of the article does not seem to be opposed to this interpretation: the Committee in Judge appeared to attach importance to the use of the simple perfect in Article 6(2) of the Covenant (‘In countries which have not abolished the death penalty’) as showing that abolition would be a one-way street. I guess that could also be read as applying at the level of the various capital offenses as well, and not only at the level of general abolition or retention. The only slight problem is in another bit of Article 6(2): ‘sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime.’ That could conceivably be read as leaving it to the law in force at the time of the offence to provide for the possibility of a sentence of death – even if that sentence had not been available for some time prior to the offence. However, I don’t think that would be accurate: the condition of ‘in accordance with the law…’ refers generally to the legality of the proceedings resulting in a sentence of death, and not only to the availability of that sentence. The reference to the law ‘in force at the time of the commission of the crime’ is therefore a restatement of Article 15 of the Covenant (nullum crimen, nulla poena sine lege) in toto. Besides, any such strict reading of Article 6(2) would obviously run counter to the intention of its drafters, as explained in Judge. (b) The second point follows more clearly from Article 6(2) itself. As cited above, that paragraph provides that sentence of death may be imposed ‘only for the most serious crimes.’ I find it more than arguable that this allows for the ultimate punishment, as a ‘necessary evil’ (according to the ICCPR, as per Judge), only where a life is taken. That, at any rate, would reflect the perceived wisdom so beloved of supporters of the death penalty in general, ‘an eye for an eye’ etc. (I would just note that this may be a mistaken interpretation of the biblical context, and that ‘an eye for an eye’ rightly does not determine the appropriate punishment in any other context: if A slaps B, the judge does not then slap A, does he?). But even aside from Article 6(2), human rights law has something to say about appropriate sentencing. We shall have to leave to one side, unfortunately, that much of human rights law is now in principle opposed to the death penalty (see e.g. Öcalan v Turkey, paras 162-165). The United States is not bound by any such law. Even so, the prohibition of inhuman and degrading treatment prohibits grossly disproportionate sentences (see Weeks v United Kingdom, para 47) and the right to respect for a person’s private life (Article 17 ICCPR) does the same even if the disproportionality is not as severe as that (see R v G [2008] UKHL 37, paras 34, 61 – a child rape case, as it happens). Given that sentence of death is the most severe sanction imaginable today, only the most serious offences could possibly be regarded as justifying its imposition. The standards, I would think, would be those of Article 6(2) ICCPR. For those reasons, I would think it unlawful under human rights law binding on the United States to impose sentence of death for the terrible offence that is the rape of a child. That is even so, I would have thought, on the view that putting someone to death judicially can ever be defended – a view that, without making any apologies, I don’t begin to share. International law may (still) allow the death penalty as such, but it clearly imposes considerable limitations on the practice. Still, even though the United States is a party to the ICCPR, the Supreme Court presumably would never have cited, much less shared, the position of Judge that the death penalty is a ‘necessary evil’ and an ‘anomaly.’ Sad as it is, that is not a view American judges can afford to take. Nor would they want to. The Court has at least done the right thing.