ABSTRACT: Document on the death penalty prepared for the 36th Congress of the Radical Party (Rome, Hotel Ergife, 30 April - 3 May)

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A number of state legal systems still provide for the death penalty as punishment for the most serious kinds of criminal behaviour.

This is justified in various ways: for example, by its being an effective deterrent that helps to maintain law and order and protect the public; and the need to satisfy public opinion, and also certain traditions.

The death penalty, however, offends the supreme value of human dignity, the right to life, which must be incorporated into international law, and made unassailable, as far as the state or any of its governing bodies (and also its correctly - and legally - functioning law courts) are concerned. Apropos of this, it should be remembered that the system established in the Forties to guarantee people's rights, also made certain human values unassailable as far as the sovereign state was concerned.

In order to exclude the possibility of the death penalty's being enforced, and to ensure that the individual's right to life is protected, it is necessary to limit the domestic jurisdiction of the state, that is, its legal and judicial autonomy (executive and police power is already curtailed by other human rights laws).

The sovereignty of a state, which has always been somewhat obscure because of the absolute power the state itself wields over the individual, is gradually feeling the benefits of "glasnost".

To help this process along, the primary objective of the campaign to abolish the death penalty must be participation in international agreements that either limit or prohibit its being enforced. In this way, a commitment (self-limiting) is obtained from the contracting parties (countries) to refrain from applying the death penalty.

Parliamentarians and important public figures must use all the means at their disposal: the agendas of Assemblies in which the problem is included, discussions on foreign affairs, etc., in order to influence government thinking - and policies - in this area.

It is, nevertheless, likely that a certain number of countries will continue to not participate in international agreements, for political and traditionalist reasons. By not entering into these international agreements, or world agreements drawn up by the UN, the state maintains its freedom, in that the laws of the above-mentioned agreements require that the country in question at least expresses a desire to be "self-limiting".

There is also a further problem concerning agreements for human rights and the abolition of the death penalty. There are no international law courts to ensure that the human rights treaties are respected within a country, and the task is given to quasi-jurisdictional or administrative structures created by the agreements themselves. Furthermore, apart from the actual ratification of the agreement, a specific ad hoc declaration is also required from the country for the particular structure to carry out its duty in their territory. This international structure could be made more effective, simply by requesting that all countries accept it.

Having considered these difficulties, the second aim of the campaign for the abolition of the death penalty must be to help create an international consuetude which sanctions the value of human life as inviolable, inalienable and unassailable, and makes this the supreme and fundamental basis for the entire international system of human rights.

This second objective is closely linked to the first: i.e., increasing the number of countries entering into agreements which either limit or prohibit the enforcement of the death penalty. It is a known fact that when a considerable number of countries participate in international agreements with conviction, this is taken as evidence that an international consuetude exists.

The establishing of such a consuetude could determine the success of the campaign for the abolition of the death penalty, as this type of law is binding for all the countries concerned and, according to international law, prevails over any conflicting state law.

International action must, therefore, be undertaken in order that Governments uphold the "opinio juris" of the consuetude principle for a right to life by excluding the death penalty from state laws.

In this respect, we could take the first step wherever the death penalty is considered to be a gross violation of human rights.

In fact, any case of "systematic, grave and widespread" violation of human rights, which the UN defines as "gross violation", can be brought before the Commission for Human Rights, an auxiliary body of the Economic and Social Council of the UN, simply because the country accused of this type of behaviour is a member of the UN (according to procedure no. 1503 of 1970).

However, this procedure is not jurisdictional, and merely serves as a warning to the country in question to stop its savage practices.

Consequently, any action undertaken to establish a general principle of international law to ban the death penalty, also means establishing international criminal law, real and proper, which would cover at least some types of criminal behaviour and categories of individuals, removing them from the jurisdiction of the national courts, and appointing international jurisdictional bodies (law courts) to judge the crimes.

In other words, it is important that international law limits the sovereignty of the state in the administration of justice and in the application of the death penalty for the most serious crimes, by imposing material or procedural limitations within the structure of the UN and international law courts.

The recent case of the Resolution of the Security Council regarding the responsibility of two Libyan agents presumed guilty of planting the bomb that blew up the Pan Am aircraft (Lockerbie disaster) clearly demonstrates that international co-operation in penal matters is at a turning point.

The Security Council in fact, in a resolution of 21 January 1991, requested that the Libyan Government co-operate "in establishing the responsibility for acts of terrorism", asking for the individuals presumed guilty to be handed over, even in the absence of the necessary extradition agreement, and even though these individuals were citizens of the same country to which the request had been presented.

Even though this resolution still does not establish the form that international co-operation in judiciary matters should take, it is obvious that it is a declaration of the Security Council's competence and power regarding the administration of justice for certain crimes.

This seems to us to be yet another step forward in the strengthening of the UN's right to intervene - obligation of interference - in the internal affairs of member countries.

This proposed campaign is justified, on the one hand, by the national law courts' lack of impartiality in judging certain crimes (e.g. a coup); and, on the other hand, by the technical difficulties they experience in trying complex cases of organized crime at a transnational level (e.g. international drug-trafficking, arms trafficking, etc.).

The proposal, therefore, consists in putting certain crimes and individuals (e.g. minors) under international rather than state jurisdiction by creating a vertical organization of the international community, and granting it a legitimate obligation of interference in a state's internal affairs, in an area which is the key to, and the basis for, an effective system for the international defence of human rights.