Iraq reportedly intends to carry out the execution of seven French nationals who are currently charged with being members of the Islamic State. The Iraqi government has denied reports that it would reconsider the imposition of the death sentences if France pays millions of euros in exchange.
The decision to carry out such executions has been criticized by Agnes Callamard, UN Special Rapporteur on extrajudicial, summary or arbitrary executions at the Office of the High Commissioner for Human Rights. She has expressed serious concerns for the situation of the French nationals and has urged the French government to press for their return home. The death penalty has been abolished in France, as well as in all other European Union member countries.
News of these executions generates a series of questions about what obligations States that abolished the death penalty have when their citizens have been sentenced to death in a foreign country. This is especially relevant in cases where capital punishment is imposed without the presence of important safeguards, such as access to a fair trial, an obligation that is enshrined in the International Covenant on Civil and Political Rights (Article 6.2), to which Iraq is a Party.
So far, E.U. Countries, like France and Britain, have repeatedly refused to repatriate their citizens who joined the Islamic State (or ISIS) in Iraq and Syria, arguing that they should face trials before domestic Iraqi and Syrian courts. But do States have an obligation to prevent the execution of their own nationals abroad, when fair trial guarantees are not ensured?
This dilemma is likely to recur for many European countries whose citizens left home to fight for the Islamic State. Iraq is, in fact, conducting trials of thousands of suspected ISIS fighters and ranks among the world’s top executioners, according to Amnesty International. The presence of foreign fighters on death row in Iraq is also likely to increase: Among those currently detained, there are hundreds of foreign nationals from Europe.
France’s possible involvement in the transfer of its citizens to Iraq
The circumstances of the case in question cast serious shadows on France’s compliance with international law.
It appears that the accused men were arrested by the Syrian Democratic Forces (SDF) and subsequently transferred to Iraq in February “at the alleged request of the French Government or with its suspected involvement,” according to Callamard. Allegedly, the transfer of these individuals from Syria to Iraq happened after France refused to allow them to return home, an attempt at avoiding the burden of transferring and trying a number of French individuals who joined ISIS.
If France’s involvement in the transfer of these men is proven, it would be in clear violation of its human rights obligations. France abolished the death penalty in 1981 and it has ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at the abolition of the death penalty (Optional Protocol). France is also a party to the European Convention on Human Rights and its 6th Protocol Concerning the Abolition of Death Penalty.
While these instruments merely prohibit the imposition of the death penalty within the jurisdiction of the State (article 1 of the Optional Protocol, and article 5 of the European Protocol), consistent jurisprudence from international tribunals have long established that the extradition of individuals to a country where it is foreseeable that the death penalty may be used, violates the right to life of individuals (See, inter alia Judge v. Canada, Human Rights Committee, para 10.6).
An express prohibition of extraditions towards non-abolishing countries is found in in Article 11 of the European Convention on Extradition. European law does not limit its protection to formal extraditions, but it extends this ban to all acts entailing the removal or expulsion of the individual “to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment,” as recognised in Article 19.2 of the Charter of Fundamental Rights of the European Union.
France’s involvement in the transfer of its citizens to Iraq would therefore constitute a violation of the obligations it took when it ratified these international treaties.
However, France is claiming that it was not involved in the decision to transfer the men to Iraq. France’s position, so far, has been to oppose to the death penalty for them, while at the same time, reiterating its respect for Iraq’s sovereignty, implying that it would not intervene in judicial proceedings. As I detail below, in the absence of France’s clear involvement in the transfer, France’s reaction, which consists of merely issuing a statement, is in line with its international law obligations.
However, there are other options that France could undertake to assist its own nationals. International law grants States some powers to intervene, giving France the chance to do much more than standby and watch its citizens undergo an unfair trial and be sentenced to death.
The soft powers granted by international law
States powers (and obligations) to assist their citizens abroad are very blurred. Human rights obligations generally apply within a State’s own jurisdiction (Art 1 ECHR, art 2.1 ICCPR), while their extraterritorial application is merely limited to cases when they exercise their control over another State’s territory or individuals. The protection granted by human rights treaties is not linked to the nationality of the individuals, meaning that a person committing a crime abroad, will usually be judged accordingly to the rules of the State where the crime is committed (or of the State where he or she is transferred, as in the case of the French ISIS members in Iraq). This framework ensures the preservation of States’ sovereignty as well as compliance with the principle of non-interference with the domestic affairs of another nation.
But, there have been some developments which expand the protection given to those facing human rights violations in countries abroad.
The first major development in international law is the establishment of Diplomatic Protection, which has been defined by the International Law Commission (ILC) as:
“the invocation by a State, through diplomatic action or other means of peaceful settlement, of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility” (Art 1, Draft Articles on Diplomatic Protection)
The exercise of the right to intervene on behalf of its citizens can be exercised by the State in a number of ways, such as consular assistance, diplomatic representations, negotiations, mediation, arbitration, judicial settlement and severance of diplomatic ties. However, the exercise of the State’s right to intervene is merely seen as discretionary, meaning that there are no obligations on States to intervene if their citizens experience a human rights violation abroad (ICJ, Case concerning the Barcelona Traction, Light and Power Company (Belgium v. Spain)  ICJ Rep 44, 78). Another weakness of this institute is that it relates to the commission of internationally wrongful acts, and, despite the efforts of the ILC Special Rapporteur on Diplomatic Protection J. Dugard’s, to include a specific provision relating to human rights violations, the ILC’s final draft articles on Diplomatic Protection discarded the incorporation of such a provision.
A second avenue is detailed in the Vienna Convention on Consular Relations of 1963 (VCCR), which creates a number of rights for individuals and States who find themselves in similar circumstances. In cases when foreign nationals are detained, they are entitled to be informed of their right to consular assistance and to communicate with their consulate. Moreover, the host State is obliged to notify the State of origin of the detention, should this be requested by the individual. Some States even go further and have included a legislative provision that enshrines the right to consular assistance for their nationals abroad. (See the case of Germany: Article 7, Consular Law, 11 September 1974).
However, due to the prevailing role played by the principle of non-interference in the domestic affairs of the receiving State, consular assistance has not been interpreted to mean the State has the power to intervene in a judicial process. Moreover, practice shows that States tend to limit their obligation to consider the request for assistance of the individual, without finding an obligation to make specific representations on behalf of the individual.
The avenues analyzed so far provide little room for the participation of the country of origin in the legal proceedings concerning its citizens. As mentioned, this is a reflection of the traditional understanding of international law, a body of law which was shaped to safeguard States’ interests, and aspired to avoid any interference in the exercise of States’ sovereignty.
Still, States have demonstrated in some circumstances their will to enforce the VCCR and the right to consular assistance enshrined in that law. Since 1998, the International Court of Justice (ICJ) has heard four cases of diplomatic protection in relation to individual human right violations (Paraguay v United States of America; Germany v United States of America; Mexico v United States of America; Republic of Guinea v Democratic Republic of the Congo.) Interestingly, the last three cases, involved individuals sentenced to death.
The death penalty is the ultimate punishment and denial of human rights. Over time, the international community, with the notable exception of the United States in the West, has adopted a moratorium on capital punishment, coming to recognize its cruel and inhuman nature. However, notwithstanding the abolition of capital punishment in 106 States, national sovereignty and the principle of non-interference in domestic affairs still play a prevailing role. This remains valid in cases relating to the imposition of death sentences to foreign citizens. Countries of origin are left with few instruments to ensure concrete safeguards for those who are in the death row, even when there are serious concerns about the fairness of the trial. However, international law does grant States with some minimum powers, and allows them to intrude in other State’s proceedings.
If States are serious about enforcing the abolishment of death penalty, they must show a genuine commitment and do everything that is in their power to avoid the execution of their citizens, even those who are responsible for the most heinous crimes. This means that they must ensure full assistance to them while they are detained in a foreign country. France’s refusal to assist its citizens abroad will leave an indelible stain on its record and it is likely to weaken its credibility as a human rights champion.