Regardless of how uncomfortable one may personally feel on the issue of capital punishment, there are a number of contextual and other issues that must not be ignored while commenting on the award of such punishment by the International Crimes Tribunal (Bangladesh).
1. There is no consensus in international law prohibiting death penalty. Also, there currently exists no universal consensus on the issue of death penalty. Therefore, at present, no such international obligation exists requiring states to abolish the death penalty on the grounds of an international standard.
2. Customary international law does not prohibit the death penalty at the current time. Furthermore, it is not prohibited by the International Covenant on Civil and Political Rights (ICCPR) or any other virtually universal international treaty. Bangladesh is a party to the ICCPR, which in its Article 6(2) clearly states:
In countries which have not abolished the death penalty, 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 and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court.
3. It is a form of punishment permissible under the laws of Bangladesh. Thus, the provision of death penalty in the ICTA is not inconsistent either with Bangladeshi or international laws.
4. In February 2009, in response to a UN “Moratorium on the Use of Death Penalty,” the Government of Bangladesh along with 52 other governments made its position clear through a document that was submitted before the UN. The position adopted by these 53 governments is:
(e) Every State has an inalienable right to choose its political, economic, social, cultural and legal justice systems, without interference in any form by another State. Furthermore, the purposes and principles of the Charter of the United Nations, in particular Article 2, paragraph 7, clearly stipulates that nothing in the Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State. Accordingly, the question of whether to retain or abolish the death penalty should be carefully studied by each State, taking fully into account the sentiments of its own people, state of crime and criminal policy.
5. These 53 retentionist states form a significant part of the international community, whose opinions must not be ignored.
6. The provision for the death penalty is an integral part of Bangladesh’s criminal justice framework, not only of the ICTA. Thus, it would not be practicable, legally or politically, to simply abolish the death penalty with regard to one piece of legislation and retain it in case of others. It is not that any legal reform as fundamental as abolishing the death penalty has to be synchronized across the board. However, any asymmetric reform or application is more likely to be viewed as irrational if the criminal justice system allows death penalty for a single murder, as per ordinary penal law, and prohibits it for mass murders involving crimes against humanity and genocide.
7. If Bangladesh takes the abolitionist path, it has to first go through a total review and overhaul of its entire criminal justice system, which can take years, if not decades. It is neither prudent nor realistic to expect the current trials in the ICT to be a testing ground for the abolition of death penalty.