The recent mass executions of drug offenders in Indonesia have rekindled international debate on the death penalty for drug offences. A key flashpoint of this debate is whether drug crimes are of a sufficient severity to be capital crimes.

While not absolutely prohibited in international law, Article 6(2) the International Covenant on Civil and Political Rights limits the lawful application of capital punishment to what the treaty terms ‘most serious crimes’. The Indonesian Government and its defenders argue that the Covenant does not define ‘most serious crimes’, and that it is therefore within the purview of sovereign States to decide this threshold themselves.

This is a common argument from retentionist States, and one that contains a number of flaws, the most elementary being that the relevant international human rights authorities have indeed provided a definition of ‘most serious crimes’, and have specifically stated on more than one occasion that drug offences of any kind do not meet this threshold. Another is the danger when States alone are allowed to define their own interpretations of ‘most serious crimes’. As described in the 2007 report of the UN Special Rapporteur on Extrajudicial Killings, capital crimes in domestic law include abetting suicide, adultery, apostasy, corruption, economic crimes, the expression of conscience, financial crimes, embezzlement by officials, evasion of military service, homosexual acts, illicit sex, sexual relations between consenting adults and religious practice. Clearly allowing States to set their own standards makes a mockery of the notion of a ‘most serious crimes’ threshold, and quickly becomes a slippery slope towards major human rights violations.

Under the international drug treaties, the number and type of offences that can be characterised as most egregious are extremely limited, meaning that the vast majority of capital drug offences enshrined in domestic legislation are either too narrow in scope, too small in quantity or too informal in criminal organisation to satisfy this higher threshold, even within the drug control framework. As a consequence, most drug offences for which the death penalty is applied in national courts cannot be ‘most serious crimes’ under international human rights law as they are not even ‘particularly serious’ crime under international drug control law. In the Indonesian case, for example, the types of courier offences for which the recent executions took place fall below the ‘particularly serious’ category under Article 3. Executions taking place in such circumstances are violations of international law, a fact made irrefutable by the clear hierarchy of drug offences contained in Article 3.

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