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This article compares Singapore's law and practice of the death penalty with what may appear to be an emerging international consensus on the minimum standards under which capital punishment may be legitimately employed. It explores some of the difficulties that might be encountered should international law attempt to govern the use of the death penalty. It also contains some tentative observations about how certain aspects of capital punishment in Singapore may be problematic should such standards ever crystallize into customary international law.
I. AMNESTY INTERNATIONAL vs. SINGAPORE
Singapore achieved global fame (or if you like infamy), when Amnesty International reported that it had the highest per capita execution rate in the world, dwarfing the rates in rather more prominent death penalty practitioners such as Saudi Arabia, China and the United States.1 The Singapore government issued a swift response-Singapore believes that executions are necessary for the preservation of law and order and there is nothing in international law to forbid them.2 It is easy for death penalty debates to degenerate into rhetoric and the trading of assertion and counter-assertion.3 It is certainly not the intention of this modest piece to add to that kind of discourse. What follows is an attempt to discuss some of the points of contention in as dispassionate a way as is humanly possible.
One threshold question must first be answered: does international law forbid Singapore from employing the death penalty under any circumstances? Singapore is not under any relevant treaty obligation. Does customary international law forbid the death penalty? I do not think there is a convincing argument that it does.4 Even Amnesty International does not make that assertion.5 Whatever the precise nature of opinio juris might be, the historic and continuing use of the death penalty by a significant number of states must surely prevent the crystallisation of such a norm.6 It might well be that a credible argument may be made that there is in existence a regional European customary rule against the death penalty,7 but the unanimity of practice within Europe does not extend to the rest of the world. The absence of such a norm in customary international law dovetails with Singapore's domestic constitutional jurisprudence-the state may not deprive someone of his or her life,...