Applying the Death Penalty to Crimes of Genocide
American Journal of International Law, Vol. 99, p. 747, 2005
31 Pages Posted: 1 Sep 2008 Last revised: 1 Mar 2014
Date Written: October 1, 2005
This Article examines the emerging norm of customary international law prohibiting the death penalty to determine whether the norm applies in cases of genocide. Although the analysis is complicated by the fact that international norms are built on the foundation of state practice and cases of genocide are historically rare, the analysis in Part I nonetheless finds strong reasons for excluding genocide from any such emerging norm. In Part II, the Article examines why retentionist states might employ the death penalty in cases of genocide and how such reasons are cognizable under international law. In Part III, the Article explores the dilemma of respecting human rights norms and respecting a state's legitimate policy reasons for retaining the death penalty in extreme circumstances such as genocide. The Article resolves this tension by recognizing that restoring international peace and security is the central goal of international criminal justice. Specifically, breaches to collective peace and security cannot be repaired if victim groups reject the legitimacy of a criminal process with inadequate penalties for genocide and turn instead to self-help reprisals that frustrate the reconciliatory goals of international law.
Keywords: genocide, death penalty, capital punishment, customary international law, human rights
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