Below, I review whether relevant international laws would bar the use of the death penalty. I go into some depth, as this is something I had wondered about and wanted an exact answer on. Our own violation of the Geneva conventions also comes into play.
The UN
In 1948, while the UN was still located in San Fransisco, the UN universal declaration of human rights was signed. Article 3 says the following: "Everyone has the right to life, liberty and security of person."
Some argue that this therefore prohibits capital punishment as a violation of the right to life. However the article is not at all written for the judicial system. If so, then imprisonment should be the most obvious violation against Article 3 (A violation of liberty).
The 1966 UN's International Covenant on Civil and Political Rights, which the US is also signature to, says:
- Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
- 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 judgment rendered by a competent court.
"The Covenant" is a self reference to the 1966 International Covenant on Civil and P. Rights.
In 1971 resolution 2857 was passed:
"... in order fully to guarantee the right to life, provided for in article 3 of the Universal Declaration of Human Rights, the main objective to be pursued is that of progressively restricting the number of offenses for which capital punishment may be imposed, with a view to the desirability of abolishing this punishment in all countries."
However this has no legal force on member states, and merely expresses a desire to gradually limit the use of the death penalty, a desire which I share. This resolution is somewhat controversial as it arguably imposes a new interpretation not intended by the 1948 declaration. Furthermore, the US abstained from voting on resolution 2857.
Every time the UN passes a resolution re-examining the original 1948 declaration, more states vote for the interpretation which precludes the death penalty. In 1989 the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty was voted on, with the US abstaining. Among UN's 189 member States, up to now only about 44 States have ratified this additional protocol.
"... Recalling article 3 of the Universal Declaration of Human Rights, adopted on 10 December 1948, and article 6 of the International Covenant on Civil and Political Rights, adopted on 16 December 1966, Noting that article 6 of the International Covenant on Civil and Political Rights refers to abolition of the death penalty in terms that strongly suggest that abolition is desirable, Convinced that all measures of abolition of the death penalty should be considered as progress in the enjoyment of the right to life, Desirous to undertake hereby an international commitment to abolish the death penalty, Have agreed as follows ..."
The Geneva Convention
The the third and fourth Geneva Conventions, passed in 1929 and 1949 respectively, define grave breaches (war crimes) such as "willfully causing great suffering or serious injury to body or health" of civilians or captured soldiers. For such grave breaches, the death penalty may be applied. Furthermore even prisoners of war are subject to the laws, regulations and orders of force in the armed forces of the detaining power. If the death penalty is in force in the laws of the detaining power, the a prisoner of war may be exposed to the threat of capital punishment for behavior not qualified as a lawful act of war. http://www.icrc.org/...
The Geneva Convention does however bar an occupying power from using the death penalty against an occupied people if it was abolished under the laws of the occupied state prior to hostilities. This was written with an eye to the abuse of the death penalty by NSDP aka. Nazi occupying forces during WW2. However, if one considers those on trail to be Afghani citizens who were ruled by the Taliban, then they dug themselves in a hole with this declaration: http://www.domini.org/... One could argue that the Taliban was not the internationally recognized government, and therefore those on trail on New York are exempt from the death penalty given that it was not legally enshrined under the last recognized Afghani government prior to 9/11.The Kingdom of Afghanistan, overthrown by a pro-soviet coup in 1973, did not allow the death penalty. That seems a tenuous argument to me.
Most problematic of all, if we assume they are war criminals under the Geneva convention and justify their execution to the international community on those grounds, then we we violated their rights under the Geneva convention as prisoners of war! Not only that, but we continued these violations under the Obama administration by holding them without trail after the close of hostilities.
Conclusion
I cannot see how the Geneva Convention bars the death penalty. However UN law which we are signatory to arguably does, and at the least the death penalty is frowned upon. Personally, I think giving them the death penalty is a mistake. It would be better to give them lifetime in jail, denying them martyrdom. If we truly respect international law and international will, we should under no circumstances execute them!
Sources:
http://www.ccprcentre.org/...
http://web.telia.com/...