counsel, or the use of secret evidence are often justified under the guise of national security but
risk undermining the principles of justice and fairness enshrined in international law.
The ICCPR permits certain rights to be limited during public emergencies, but these limitations
must be strictly necessary, proportional, and non-discriminatory. Lawyers play a crucial role
in holding governments accountable to these standards, particularly when terrorism laws are
applied disproportionately or target specific ethnic or religious groups. By demonstrating that
protecting human rights reinforces the legitimacy and efficacy of anti-terrorism efforts, lawyers
can advocate for a more balanced approach that respects both security imperatives and the rule
of law.
•
Due process: Article 14 of the ICCPR unequivocally guarantees the right to a fair trial,
encompassing access to competent legal counsel, sufficient time to prepare a defence,
and impartial adjudication. Any deviation from these safeguards, particularly under the
guise of national security, constitutes a grave violation of international human rights
standards.
•
Proportionality in sentencing: the UN Economic and Social Council’s Safeguards
Guaranteeing Protection of the Rights of Those Facing the Death Penalty strictly limit
the application of the death penalty to intentional killings, reinforcing the principle of
proportionality. Many terrorism-related offences, including those that do not involve
direct loss of life, fail to meet this threshold.
Homicide
Homicide remains one of the most universally cited justifications for the death penalty, rooted
in the perception that intentional killing constitutes a severe moral and legal violation
warranting the ultimate punishment. In many Asian jurisdictions, capital punishment continues
to be applied in cases of intentional killing, often with a strong emphasis on retribution and
deterrence. However, this approach frequently fails to account for the nuanced and multifaceted
realities that underpin many homicide cases, such as the socio-economic, psychological, and
systemic conditions that may have influenced the offender’s actions.
Mitigating factors such as mental health conditions, histories of abuse, extreme poverty, or
coercion often play a critical role in shaping the context of homicide cases but are frequently
disregarded in sentencing. Additionally, the argument that the death penalty serves as an
effective deterrent lacks empirical support, with numerous studies indicating that it does not
significantly reduce homicide rates compared to alternative penalties. Ignoring these factors
perpetuates systemic inequalities and fails to address the root causes of violent crimes, calling
into question both the morality and effectiveness of capital punishment.
Sexual Offences
Certain Asian countries impose the death penalty for sexual offences, particularly rape, and
especially where the victim is a minor. While states have a legitimate interest in deterring and
punishing sexual violence, the use of capital punishment raises serious concerns regarding
proportionality, wrongful convictions, and compliance with international human rights
standards. The UN and various human rights bodies have reaffirmed that the death penalty
should be restricted to the “most serious crimes,” which has been interpreted to mean
intentional killings.
March 2025
20
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