Stop Child Executions
A Violation of International Law
A country that sentences a child offender to death or executes them is violating international law in three ways: (i) it is violating its treaty obligations; (ii) it is violating customary international law; and (iii) it is violating a peremptory norm of international law (jus cogens).
In becoming a party to an international treaty, a state enters into a commitment to respect its provisions. Nearly all states have ratified one or more treaties that explicitly prohibit the use of the death penalty against child offenders (see pp. 5-6). Therefore, nearly all states have made a formal commitment under international law not to use the death penalty against child offenders.
Furthermore, Amnesty International believes that the exclusion of child offenders from the death penalty is now so widely accepted in law and practice that it has become a rule of customary international law – international rules derived from state practice and regarded as law (opinio juris) - and therefore binding on every state, except on those that have “persistently objected” to the rule in question.
Finally, certain rules of international law are of such importance that they are considered to be “peremptory norms”, otherwise known as jus cogens, which all states must abide by under any circumstance. The Vienna Convention on the Law of Treaties defines a norm of jus cogens as “a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of international law having the same character”. Amnesty International believes that the prohibition of use of the death penalty against child offenders should be recognized as such a norm.
The Domingues Judgment: Finding a Jus Cogens Norm
Michael Domingues was sentenced to death in the US state of Nevada in 1994. The crimes for which he was convicted had been committed in 1993 when he was 16 years old. After his appeal was rejected by the Nevada Supreme Court and after the US Supreme Court refused to consider the case, Michael Domingues brought his case to the Inter-American Commission on Human Rights (the Commission), an organ of the Organization of American States, of which the USA is a member. Article I of the American Declaration on the Rights and Duties of Man, adopted by the OAS in 1948, provides for the right to life. Michael Domingues alleged that the death sentence imposed on him violated this right.
The Commission considered the case and concluded that “a norm of international customary law has emerged prohibiting the execution of offenders under the age of 18 years at the time of their crime” and that “this rule has been recognized as being of a sufficiently indelible nature to now constitute a norm of jus cogens”. After hearing counter-arguments presented by the US government, the Commission held in October 2002 that the USA “has acted contrary to an international norm of jus cogens as reflected in Article I of the American Declaration [on the Rights and Duties of Man] by sentencing Michael Domingues to the death penalty for crimes that he committed when he was 16 years of age” and that “should the State [the USA] execute Mr. Domingues pursuant to this sentence, it will be responsible for a grave and irreparable violation of Mr. Domingues’ right to life under Article I of the American Declaration”. (Michael Domingues v. United States, Case 12.285, Merits, Report No. 62/02, 22 October 2002, paras. 84-85, 112)