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Common(wealth) Knowledge #88: International outrage at Alabama's use of 'death by asphyxiation'

Updated: Jan 29

International outrage demonstrates the effect that the death penalty can have on foreign relations.

In the late hours of January 26th (local time) the Alabama government became the first part of the United States of America to carry out the death penalty using nitrogen gas. Kenneth Smith, a convicted murderer, died an agonising death after nearly 30 minutes of struggling and pain, causing an international incident with far-fearing foreign affairs implications.

Both the United Nations and the European Union have criticised the Alabama government, and the US as a whole, for allowing the use of ‘death by asphyxiation.’

Although Governor Kay Ivey claimed that it was the “most painless and humane” form of execution, much of the international community, led by Western nations, have called this “cruel and degrading punishment,” pointing to international treaties and America’s own Fifth Amendment to the Bill of Rights.

Yet many Americans are supportive of this new method of carrying out the death penalty, believing that it provides justice for the family of the victim. Smith killed the victim, a mother, after being hired by her husband to do so.

This controversy has caused many communities to reflect on their own attitudes towards the death penalty, especially given the more violent nature of this execution, which nonetheless succeeded in executing Smith, something that a lethal injection in 2022 could not achieve.

Although the death penalty is banned throughout Australia, there have been some calls for its return, at least in relation to murder, sexual, and terrorism-related offences. 

But, sidestepping that debate, something that is less spoken about is how the actions of foreign countries with the death penalty have an impact on Australia’s foreign relations, specifically about the deportation or extradition of alleged offenders to foreign nations.

By the time Australia signed and ratified the Convention on the Rights of the Child in 1990, the death penalty had been abolished throughout Australia.

However, relying on the ‘external affairs power’ of Section 51(xxix) of the Australian Constitution, the Commonwealth government passed the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition Act) 2010 (Cth) to meet its treaty obligations and prevent any State government from bringing the death penalty back in.

These treaty obligations ramped up the use of the Extradition Act 1988 (Cth), which governs the process for extraditing a person in Australia to a foreign country to be tried for alleged criminal offences.

Under Section 22(3)(c), if a country has the death penalty, then for the offender to be deported, the Attorney General must be satisfied that (i) the offender won’t be charged for an offence with that penalty, (ii) that if tried for that offence the penalty won’t be imposed, or (iii) that if it is imposed, it won’t be carried out.

Taking such a critical approach to the death penalty means that Australia is often at the forefront of the international community when it comes to applying international pressure on a country that may use the death penalty.

As a result, Australia joined France as a leading opponent to the use of the death penalty in Nigeria in October 2023, and regularly criticises Indonesia for its use of the death penalty, especially when Australian citizens are involved.

In addition to protesting the potential use of the death penalty on Australians in Indonesia, Article 7 of the Extradition (Republic of Indonesia) Regulations 1994 (Cth), issued under the Extradition Act, states that no person shall be deported until Section 22(3)(c) is satisfied.

In McCrea v Minister for Customs and Justice (2005), the Full Court of the Federal Court ruled that there must be a genuine consideration of Section 22(3)(c), given the seriousness of the matter, and there is no ‘discretionary’ power to avoid this consideration.

Two years later, the Full Court was faced with the question of deportation to the United States for first-degree murder under California law. In Rivera v Minister for Customs and Justice (2007), the defendant argued that the obligation under Section 22(3)(c) would only be discharged if the assurances were made by the particular jury, who have the power to impose the death penalty, or the Attorney-General or Governor.

Justice Emmett rejected this claim. His Honour stated that the assurances did not have to be given by someone who could legally enforce the assurances by not allowing a conviction with the death penalty.

Justice Buchanan concurred, pointing out the long-standing international tradition that “diplomatic undertakings pursuant to treaties, given by sovereign polities to each other, are frequently not enforceable.”

But this system is not without controversy.

Two members of the Bali Nine heroin smuggling ring were executed by the Indonesian government in 2015. Australians were divided over the investigation by the Indonesian government, including the Australian Federal Police’s decision to hand over initial evidence, and later the decision by the Indonesian government to use the death penalty.

This new form of carrying out the death may force the Commonwealth government to reconsider any decisions to extradite offenders for crimes that may be punishable by death.

In addition to considering Section 22(3)(c), if the use of nitrogen gas is agreed by the international community to be a form of torture or degrading punishment, then Section 22(3)(b) will also require demonstrating that there are no “substantial grounds for believing that … the person would be in danger of being subjected to torture.

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