Le droit international et la peine de mort (review)

In Le droit international et la peine de mort, Nadia Bernaz approaches what remains probably one of the most controversial issues in the modern political and judicial world. Opponents to and advocates of the death penalty are struggling harder and harder, each of them winning and losing battles, but in the end this conflict is far from being resolved. In a first book that will likely be an authority on the death penalty, Bernaz offers a thorough analysis of the current state of international law.

Bernaz, obtained an LL.M. in Public international law at the University Paul Cézanne, Aix-Marseille III (France) and a Ph.D. from the same university on the subject developed in her book. She was lecturer at the Irish Centre for Human Rights of the National University of Ireland (Galway NUI) for two years and is currently lecturer at Middlesex University (England). She teaches public international law and international criminal law.

The death penalty has been a regular, uncontested, and applied judicial punishment for centuries in all legal systems. If “[t]he modern movement to abolish the death penalty may be dated from the appearance in 1764 of Cesare Beccaria’s Dei Delitti e della Pene,”¹ the record shows that the actual debate over the death penalty entered the international sphere soon after World War II and more precisely after the Nuremberg trial.² Since then, recourse to capital punishment has steadily declined, whereas at the same time, human rights developed significantly in the succeeding years. Indeed, the issue raised by the death penalty is closely tied to the development of human rights and international human rights law.

However, while there is little doubt that the death penalty is declining,³ it has not yet disappeared. On the contrary, it seems that a status quo has somehow been reached between abolition and state sovereignty on criminal matters. This middle road has taken the form of regulation. The death penalty is not prohibited, but strict conditions have to be met in order to carry it out.

If in the mind of Robert Badinter, the great advocate and craftsman of abolition in France, “abolition is inherently international,”⁴ Bernaz reminds us that international legal rules can only be borne from states. The willingness of states is key to achieving an international prohibition of death penalty. The struggle against the death penalty must then be distinguished between the ideal of some and the legal reality.

Le droit international et la peine de mort provides the most comprehensive and up-to-date discussion on the question of the death penalty with an international perspective currently available. It is a precious tool for understanding the current developments on the death penalty at the international level. It is also unique as the death penalty has been the object of numerous studies in municipal and comparative law, but few have been written on the apprehension of the death penalty by general international law, especially by a French author. The author offers a particular approach to the matter in comparison with the usual reference on this topic such as the view of William Schabas, defending the development of a compulsory abolitionist rule in international law. For Bernaz, such a rule does not exist, which does not mean however that abolition is not on its way. As Schabas underlines in the book preface : “Pour Nadia le verre n’est pas plein, tandis que pour moi il n’est pas vide”⁵ which means that, despite the difference between their respective analysis of the topic, they agree on the core.

This well documented book does not aim at listing the main arguments for and against the death penalty. Neither does the study aim at enhancing abolition, even though the author’s position is clearly in favor of abolition throughout the book. Following a simple but efficient plan, the argument is articulated around two mains parts that draw on...