{"id":2172,"date":"2012-07-30T19:37:50","date_gmt":"2012-07-30T19:37:50","guid":{"rendered":"https:\/\/live-death-penalty-worldwide.pantheonsite.io\/no-exceptions-south-africas-constitutional-court-upholds-mandatory-assurances-against-the-death-penalty-in-all-cases\/"},"modified":"2020-09-01T22:36:19","modified_gmt":"2020-09-01T22:36:19","slug":"no-exceptions-south-africas-constitutional-court-upholds-mandatory-assurances-against-the-death-penalty-in-all-cases","status":"publish","type":"post","link":"https:\/\/dpw.lawschool.cornell.edu\/fr\/no-exceptions-south-africas-constitutional-court-upholds-mandatory-assurances-against-the-death-penalty-in-all-cases\/","title":{"rendered":"No Exceptions: South African Court Upholds Mandatory Assurances Against Death Penalty"},"content":{"rendered":"

The standard practice among abolitionist nations is to insist on \u2018satisfactory assurances\u2019 that the death penalty will not be imposed or carried out before allowing the surrender of individuals to another country in which they face a possible death sentence or execution upon their return. So widespread is this version of the non-refoulement principle that it is now an\u00a0international human rights norm<\/a>: abolitionist nations are required in all circumstances to seek and obtain appropriate assurances, and failure to do so is a\u00a0breach<\/a>\u00a0of the sending State\u2019s binding international obligations.<\/p>\n

Generally speaking, the norm operates smoothly and effectively; however reluctantly, retentionist nations typically do provide and abide by the necessary assurances (recent examples include the\u00a0United States<\/a>,\u00a0Thailand<\/a>\u00a0and\u00a0China<\/a>). But what happens when the requesting State absolutely refuses to provide the necessary assurances? Does this mean that a murderer can avoid punishment simply by crossing a border, or must the failure to obtain the necessary guarantees result instead in the fugitive\u2019s indefinite detention without trial? In these unusual cases, is there any satisfactory alternative to surrender without assurances?<\/p>\n

Two recent cases in South Africa highlighted these troubling questions. Emmanuel Tsebe and Jerry Phale were both accused of murder in Botswana and were arrested after they fled to South Africa. Botswana sought the extradition of both men, but refused South Africa\u2019s request to provide guarantees against the death penalty. Unable to extradite and powerless to prosecute, South African authorities then attempted to deport the men without any protection against death sentencing. However, the High Court\u00a0ruled<\/a>\u00a0that the suspects could not be removed from South Africa \u201cwithout the written assurance from the Government of Botswana that the applicant will not face the death penalty there under any circumstance.\u201d \u00a0The South African government appealed the decision, arguing that it had discharged its constitutional obligations by seeking assurances as a condition of extradition and that a capital deportation was lawful where the detainee would otherwise avoid prosecution for murder.<\/p>\n

On July 27, 2012,\u00a0 the Constitutional Court of South Africa provided a balanced and principled answer to the dilemma. In Minister of Home Affairs and Others v. Tsebe and Others, <\/em>the Court\u00a0unanimously upheld<\/a>\u00a0the lower court\u2019s ruling. The Court found no reason to distinguish this case from its 2001\u00a0decision<\/a>\u00a0holding that the surrender of any person facing a real risk of the death penalty would violate the\u00a0 constitutional rights to life and human dignity and the right not to be subjected to cruel, inhuman and degrading punishment or treatment. There is \u201cno exception to this principle,\u201d the 11 judges ruled, and the difficulties that may arise \u201ccannot override the need for us as a nation to stay on course on the path we have chosen for ourselves to respect, protect, promote and fulfil human rights, to observe our Constitution and deepen the values upon which we have chosen to create our new society.\u201d\u00a0 The Court also found a real risk that the men would face the death penalty upon their return, noting that \u201cimposition of the death sentence on those convicted of murder in Botswana\u201d is \u201cmandatory where there are no extenuating circumstances.\u201d As the\u00a0summary<\/a>\u00a0of the judgment notes,\u00a0Tsebe\u00a0<\/em>expands the Court’s previous jurisprudence by requiring \u201cnot only that the South African Government seek assurance, but also obtain that assurance\u201d in all cases.<\/p>\n

But the Court did not stop there.\u00a0<\/em>Addressing the \u201clegitimate concerns\u201d raised by the government, the majority pointed to a straightforward solution: the passage of draft legislation giving the South African courts \u201cjurisdiction to try crimes that have been committed outside the borders of this country\u201d if such cases would resolve the difficulty of a requesting State refusing to provide assurances. This option would satisfy the government\u2019s necessary commitment to \u201csparing no effort in fighting crime\u201d and negate the risk of the country becoming a \u201ca safe haven for illegal foreigners and fugitives from justice,\u201d while meeting the constitutional duty to \u201cnot be party to the killing of any human being as a punishment \u2013 no matter who they are and no matter what they are alleged to have done.\u201d<\/p>\n

The full text of this historic judgment is available\u00a0here<\/a>\u00a0in PDF format.<\/p>\n","protected":false},"excerpt":{"rendered":"

The standard practice among abolitionist nations is to insist on \u2018satisfactory assurances\u2019 that the death penalty will not be imposed or carried out before allowing the surrender of individuals to another country in which they face a possible death sentence or execution upon their return. So widespread is this version of the non-refoulement principle that […]<\/p>\n","protected":false},"author":14,"featured_media":943,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"om_disable_all_campaigns":false,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[70,74],"tags":[],"class_list":["post-2172","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-access-to-justice-fr","category-news-fr"],"better_featured_image":{"id":943,"alt_text":"alt=\"\"","caption":"Photo by orangesparrow","description":"","media_type":"image","media_details":{"width":1256,"height":942,"file":"2018\/08\/orangesparrow_104_365-a-little-justice.jpg","sizes":{"medium":{"file":"orangesparrow_104_365-a-little-justice-300x225.jpg","width":300,"height":225,"mime-type":"image\/jpeg","source_url":"https:\/\/dpw.lawschool.cornell.edu\/wp-content\/uploads\/2018\/08\/orangesparrow_104_365-a-little-justice-300x225.jpg"},"large":{"file":"orangesparrow_104_365-a-little-justice-1024x768.jpg","width":1024,"height":768,"mime-type":"image\/jpeg","source_url":"https:\/\/dpw.lawschool.cornell.edu\/wp-content\/uploads\/2018\/08\/orangesparrow_104_365-a-little-justice-1024x768.jpg"},"thumbnail":{"file":"orangesparrow_104_365-a-little-justice-150x150.jpg","width":150,"height":150,"mime-type":"image\/jpeg","source_url":"https:\/\/dpw.lawschool.cornell.edu\/wp-content\/uploads\/2018\/08\/orangesparrow_104_365-a-little-justice-150x150.jpg"},"medium_large":{"file":"orangesparrow_104_365-a-little-justice-768x576.jpg","width":768,"height":576,"mime-type":"image\/jpeg","source_url":"https:\/\/dpw.lawschool.cornell.edu\/wp-content\/uploads\/2018\/08\/orangesparrow_104_365-a-little-justice-768x576.jpg"}},"image_meta":{"aperture":"0","credit":"","camera":"","caption":"","created_timestamp":"0","copyright":"","focal_length":"0","iso":"0","shutter_speed":"0","title":"","orientation":"0","keywords":[]}},"post":1995,"source_url":"https:\/\/dpw.lawschool.cornell.edu\/wp-content\/uploads\/2018\/08\/orangesparrow_104_365-a-little-justice.jpg"},"acf":[],"aioseo_notices":[],"external_author":"Mark Warren","_links":{"self":[{"href":"https:\/\/dpw.lawschool.cornell.edu\/fr\/wp-json\/wp\/v2\/posts\/2172","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/dpw.lawschool.cornell.edu\/fr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/dpw.lawschool.cornell.edu\/fr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/dpw.lawschool.cornell.edu\/fr\/wp-json\/wp\/v2\/users\/14"}],"replies":[{"embeddable":true,"href":"https:\/\/dpw.lawschool.cornell.edu\/fr\/wp-json\/wp\/v2\/comments?post=2172"}],"version-history":[{"count":2,"href":"https:\/\/dpw.lawschool.cornell.edu\/fr\/wp-json\/wp\/v2\/posts\/2172\/revisions"}],"predecessor-version":[{"id":3002,"href":"https:\/\/dpw.lawschool.cornell.edu\/fr\/wp-json\/wp\/v2\/posts\/2172\/revisions\/3002"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/dpw.lawschool.cornell.edu\/fr\/wp-json\/wp\/v2\/media\/943"}],"wp:attachment":[{"href":"https:\/\/dpw.lawschool.cornell.edu\/fr\/wp-json\/wp\/v2\/media?parent=2172"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/dpw.lawschool.cornell.edu\/fr\/wp-json\/wp\/v2\/categories?post=2172"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/dpw.lawschool.cornell.edu\/fr\/wp-json\/wp\/v2\/tags?post=2172"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}