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REPORT Nº 62/02* I. SUMMARY1. On May 1, 2000 the Inter-American Commission on Human Rights (the "Commission”) received a petition from Mr. William A. Courson of the Magnus Hirschfield Center for Human Rights against the United States of America (the "State," the "United States," or the “U.S.”). The Petition was presented on behalf of Mr. Michael Domingues, who is incarcerated on death row in the State of Nevada. On December 8, 2000 the petition was supplemented by a second petition filed on behalf of Mr. Domingues by Mr. Mark Blaskey, Clark County Public Defender. It was subsequently agreed by Mr. Domingues, Mr. Courson and Mr. Blaskey that Mr. Blaskey would act as Mr. Domingues’ sole representative in proceedings before the Commission (the “Petitioner”). 2. The Petitioner states that Mr. Domingues had been convicted and sentenced to death in respect of two homicides that occurred in the state of Nevada in 1993. Mr. Domingues was 16 years old when the crimes were committed. The Petitioner further states that on November 1, 1999 the Supreme Court of the United States declined to review a ruling by the Supreme Court of the State of Nevada permitting the execution of a person convicted of a crime committed while a juvenile. As of the date of this report, no date for Mr. Domingues’ execution had been scheduled. 3. The Petitioner alleges that Mr. Domingues has exhausted his domestic remedies and therefore that his petition is admissible. He also alleges that by sentencing Mr. Domingues to death for crimes committed while he was a juvenile, the State is in breach of Articles I (right to life), II (right to equality before law), VII (right to protection for mothers and children) and XXVI (right to due process of law) of the American Declaration of the Rights and Duties of Man (“the American Declaration”). More particularly, the Petitioner argues that the United States is in violation of Article I of the American Declaration because of an international jus cogens norm prohibiting the execution of juvenile offenders. The Petitioner also claims that the failure of the United States to preempt the pattern of legislative arbitrariness within the individual states of the U.S. in respect of the application of the death penalty to juvenile offenders has resulted in the arbitrary deprivation of life and inequality before the law. He states that on this basis, the U.S. is in violation of Articles I and II of the Declaration. Finally, the Petitioner complains that the application of the death sentence to Mr. Domingues would represent a breach of Article VII and XXVI of the Declaration. 4. As of the date of the adoption of the Commission’s preliminary report, the Commission had not received any information or observations from the State regarding Mr. Domingues’ petition. 5. In the present report, having examined the information and arguments provided by the parties, the Commission decided to admit the case in relation to Articles I, II, VII, and XXVI of the Declaration. In addition, after considering the merits of the case, the Commission concluded that the State has acted contrary to an international norm of jus cogens by sentencing Michael Domingues to the death penalty for a crime that he committed when he was 16 years of age. Consequently, should the State execute Mr. Domingues pursuant to this sentence, the Commission found that it will be responsible for a grave and irreparable violation of Mr. Domingues’ right to life under Article I of the American Declaration. II. PROCEEDINGS BEFORE THE COMMISSIONA. Observations of the Parties 6. On May 30, 2000 the Commission decided to open Case Nº 12.285 in relation to Mr. Domingues’ complaint, and by note of the same date transmitted the pertinent parts of the petition submitted by Mr. Courson to the State, with a request that the State deliver information that it considered pertinent to the complaint within 90 days as prescribed by the Commission’s Regulations. Also by note of the same date, the Commission informed Mr. Courson that Mr. Domingues’ petition had been transmitted to the State. 7. On December 8, 2000 the Commission received a further petition filed on behalf of Mr. Domingues from Mr. Mark S. Blaskey, Clark County Public Defender. On January 11, 2001 the Commission received written confirmation from Mr. Domingues that he is represented by Mr. Blaskey and that the petition of December 8, 2000 had been filed with Mr. Domingues’ full knowledge, authorization and consent. Mr. Domingues further indicated that he had not spoken to any other attorney or organization about filing a petition on his behalf and should any conflict exist between petitions, he would wish the Commission to proceed with the petition filed by Mr. Blaskey. 8. By note dated January 25, 2001 the Commission informed Mr. Courson that the Commission had received a second petition on behalf of Mr. Domingues, together with a written statement from Mr. Domingues as outlined above. Following further communications between the Commission, Mr. Courson and Mr. Blaskey, on February 21, 2001 the Commission received a letter from Mr. Blaskey stating that he would act as sole representative for Mr. Domingues before the Commission and that Mr. Courson agreed with this arrangement. Enclosed with this letter was a communication from Mr. Courson confirming this agreement. 9. Accordingly, the Commission transmitted the pertinent parts of the supplementary petition filed by Mr. Blaskey to the State in a communication dated March 5, 2001, with a request that the State provide all the information relevant to the case within 30 days. As of the date of the Commission’s preliminary report, the Commission had not received any observations from the State on Mr. Domingues’ complaint. B. Precautionary Measures 10. In its May 30, 2000 communication to the State, the Commission requested precautionary measures from the United States pursuant to Article 29(2) of the Commission’s prior Regulations.[1] This request was made on the basis that if the State was to execute Mr. Domingues before the Commission had an opportunity to examine the allegations in his petition, his complaint would be rendered moot in terms of the availability of potential remedies and irreparable harm would be caused to Mr. Domingues. The Commission did not receive a response from the State to its request for precautionary measures. C. Friendly Settlement 11. By communications dated August 22, 2001 to the Petitioner and to the State, the Commission placed itself at the disposal of the parties with a view to reaching a friendly settlement of the matter pursuant to Article 41 of the Commission’s Rules of Procedure on the basis of respect for the human rights recognized in the American Convention, the American Declaration and other applicable instruments. The Commission also requested that the parties provide the Commission with a response to the Commission's offer within 10 days, in default of which the Commission would continue with consideration of the matter. 12. In a communication dated August 29, 2001 and received by the Commission on September 4, 2001 the Petitioner informed the Commission that on Mr. Domingues’ behalf he accepted the Commission’s offer to facilitate a friendly settlement of the matter. By note dated September 6, 2001 the Commission transmitted the pertinent parts of the Petitioner’s communication to the State and requested its observations within 10 days, in default of which the Commission would consider that a friendly settlement was not possible and continue with its consideration of the matter. III. POSITIONS OF THE PARTIESA. Position of the Petitioner1. Admissibility 13. The Petitioner contends that Mr. Domingues’ complaints are admissible in accordance with the requirements of the Commission’s Rules of Procedure. He states that Mr. Domingues filed a motion in the State trial court to correct an illegal sentence by arguing that Nevada State law is superseded by international law that prohibits the execution of juveniles, including the International Covenant on Civil and Political Rights (ICCPR), customary international law and jus cogens. The trial court denied the motion. In addition, Mr. Domingues has twice appealed his conviction and death sentence to the Nevada Supreme Court. On his second appeal, a majority of the Nevada Supreme Court concluded that a "reservation" to the ICCPR made by the U.S. Senate permitted Mr. Domingues’ execution. Neither the Nevada Supreme Court nor the trial court discussed the issue of whether the reservation was valid, or whether the execution of juvenile offenders violated customary law of jus cogens. A writ of certiorari was filed to the U.S. Supreme Court alleging violations of the ICCPR, customary international law and jus cogens. On November 1, 1999 the U.S. Supreme Court denied the writ without discussion. 14. The Petitioner also claims that the legislative and executive branches of the United States government have likewise denied Mr. Domingues an effective remedy. He alleges in this respect that when the State ratified the ICCPR on June 8, 1992 the U.S. Senate placed a reservation on Article 6(5) which prohibits the imposition of capital punishment on children who are under 18 years of age when they commit their crime, thereby depriving Mr. Domingues of the protection of this provision of the treaty. The Petitioner also claims that in Mr. Domingues’ certiorari proceeding before the U.S. Supreme Court, the Office of the Solicitor General, on behalf of the Executive Branch, did not argue that there was not a jus cogens norm prohibiting the execution of 16 year old offenders, but urged the U.S. Supreme Court not to hear the case in part on the basis that the United States had asserted a “persistent objection to the asserted legal obligation up to this point in international fora.”[2] 15. Consequently, the Petitioner argues that Mr. Domingues has been denied his right to a substantive appeal on these issues and has exhausted domestic remedies in accordance with Article 31 of the Commission’s Rules of Procedure. 16. The Commission received the first petition on behalf of Mr. Domingues on May 1, 2000 within 6 months of the date of the final domestic judgment in the case. Consequently, it is contended that Mr. Domingues has complied with Article 32 of the Commission’s Rules of Procedure. 2. Merits 17. With respect to the merits of the case, the Petitioner indicates that Mr. Domingues is a U.S. citizen who in August 1994 was tried and convicted by a jury in Nevada of one count of burglary, one count of robbery with the use of a deadly weapon, one count of first degree murder and one count of first degree murder with the use of a deadly weapon. Mr. Domingues was sentenced to death for each of the two murder convictions. The Petitioner argues that the imposition of the death penalty upon an offender who was aged sixteen years at the time of his crime is a breach of Articles I, II, VII and XXVI of the American Declaration for which the State must be held responsible. 18. With respect to Article I of the Declaration, the Petitioner argues that an international jus cogens norm exists which prohibits the death penalty for juvenile offenders below the age of 18 years. In presenting this argument, the Petitioners first emphasize that in the case of Roach and Pinkerton v. United States, which was the subject of a decision by this Commission in 1987, the United States recognized that a jus cogens norm prohibiting the execution of juvenile existed, but that insufficient international consensus existed as to the age of majority, a position with which the Commission ultimately concurred.[3] 19. In support of their contention that a norm of jus cogens has developed since the Commission’s decision in Roach and Pinkerton prohibiting the execution of offenders who were under age 18 when their committed their crimes, the Petitioner cites numerous authorities, including international and regional treaties, United Nations resolutions and the domestic practice of states. The Petitioner relies in particular upon Article 6(5) of the International Covenant on Civil and Political Rights, which the United States ratified in 1992 but subject to a reservation by which the State purported to preserve the right to impose the death penalty on offenders under age 18.[4] The Petitioner also refers to the U.N. Convention on the Rights of the Child, Article 37(1) of which prohibits the imposition of capital punishment for offenses committed below 18 years of age. The Petitioner notes in particular that as of November 30, 1997 191 countries had ratified or acceded to the Convention with only two countries, the United States and Somalia, having failed to become parties to the instrument. Additional treaties relied upon by the Petitioner in support of his argument include the American Convention on Human Rights, which the United States signed on June 1, 1977 and Article 4(5) of which prohibits the imposition of capital punishment upon persons who, at the time the crime was committed, were under 18 years of age, as well as the Fourth Geneva Convention of 1949, Article 68 of which provides that “the death penalty may not be pronounced against a protected person who was under eighteen years of age at the time of the offense.” The Petitioner notes in this respect that the United States ratified this treaty without opposition to the prohibition of juvenile executions.[5] 20. Among the other authorities cited by the Petitioner are resolutions adopted by the U.N. Sub-Commission on the Promotion and Protection of Human Rights and the United Nations Commission on Human Rights in, respectively, 1999 and 1997 condemning the imposition of the death penalty on those who were under the age of 18 at the time the offense was committed.[6] Further, the Petitioner relies upon evidence of the domestic practice of states which he claims indicate, inter alia, that since 1990 only seven countries in the world are known to have executed children who were under the age of 18 at the time of their offense,[7] and that even states within the United States, including Florida and Montana, have recently followed the jus cogens prohibition by prohibiting the execution of 16 year old offenders.[8] 21. In addition and in the alternative, the Petitioner argues that the United States Government has failed to ensure that a uniform approach is taken towards the execution of juvenile offenders, thereby allowing a pattern of legislative arbitrariness to continue throughout the individual states. The Petitioner alleges that this failure results in the arbitrary deprivation of life and inequality before the law in breach of both Article I and Article II of the Declaration, as well as a violation of the right to special protection of children under Article VII of the Declaration. According to the Petitioner, by allowing the application of the death penalty upon a 16 year old offender to be determined by the location in which the crime was committed, U.S. policy results in the arbitrary deprivation of life and inequality before the law. In making this assertion, the Petitioner relies upon this Commission’s decision in the Roach and Pinkerton case in which the Commission ruled that the United States’ failure to preempt states on the issue of the juvenile death penalty resulted in the arbitrary deprivation of life and inequality before the law contrary to Articles I and II of the American Declaration.[9] 22. The Petitioner also cites statistics indicating that as of the date of the petition, 8 U.S. states have specific statutes that authorize the death penalty for 16 year old offenders, 15 states and the federal government set the minimum age at 18, 9 states have no age limit specified in their statutes, and 13 states prohibit the death penalty altogether.[10] On this basis, the Petitioner argues that the United States has done nothing to bring uniformity to the state practice of executing juveniles, and moreover, that the United States has “directly undermined” the obligation it owes to the citizens of the United States under the American Declaration by ratifying the ICCPR with an invalid reservation to the prohibition of juvenile death penalties.[11] 23. Finally, the Petitioner argues that the imposition of the death penalty upon Mr. Domingues represents a breach of its obligations under the U.N. Convention on the Rights of the Child and the American Declaration. The Petitioner acknowledges that the U.S. has not ratified the Children’s Convention treaty but points out that 191 countries worldwide have ratified or acceded to the treaty and that the U.S. and Somalia are the only two countries in the world that have not. 24. The Petitioner also relies in this respect upon the obligations assumed by the U.S. under Article 18 of the Vienna Convention of the Law of Treaties by virtue of the fact that it has signed the Convention in February 1995. Article 18 provides that
25. Therefore, by executing Mr. Domingues, the Petitioner claims that the United States would violate the object and purpose of the Convention on the Rights of the Child and would therefore be in breach of its international legal obligations. B. Position of the State26. As of the date of adoption of the Commission’s preliminary report, the Commission had not received any observations or information from the State regarding Mr. Domingues’ complaint. IV. ANALYSIS27. Before undertaking its analysis of the present case, the Commission wishes to clarify that in light of the exceptional circumstances of this matter as a death penalty case and the fact that the parties have had numerous opportunities to present observations on the admissibility and merits of the Petitioners’ claims, and consistent with its past practice in petitions of this nature,[13] the Commission decided to consider the admissibility of the Petitioners’ claims together with the merits. 28. Also in this connection, and in the absence of any observations from the State on the admissibility or merits of Mr. Domingues’ case, the Commission wishes to underscore the significance of OAS member states’ obligations to respond to the Commission’s communications, including those pertaining to petitions that complain of human rights violations attributable to a member state. This obligation flows generally from member states’ human rights responsibilities as parties to the OAS Charter and other pertinent instruments, and specifically from the terms of Articles 19 and 20 of the Commission’s Statute and Articles 30 and 38 of the Commission’s Rules of Procedure. 29. Among the consequences that follow from a State’s silence on the merits of a petition is the Commission’s entitlement, as prescribed in Article 39 of its Rules of Procedure, to presume the facts alleged in the petition to be true as long as other evidence does not lead to a different conclusion. It is with this regulation in mind that the Commission will evaluate the Petitioner’s allegations in the present case. A. Commission's Competence30. The Petitioner claims that the State has violated Mr. Domingues’ rights under Article I (the Right to Life), Article II (the Right to equality before the law), Article VII (the Right to Protection for Children), and Article XXVI (the Right not to receive cruel and unusual punishment), under the American Declaration of the Rights and Duties of Man. The State is a member of the Organization of American States that is not a party to the American Convention on Human Rights as provided for in Article 20 of the Commission's Statute and deposited its instrument of ratification of the OAS Charter on June 19, 1951.[14] The events raised in the Petitioner's claim occurred subsequent to the State's ratification of the OAS Charter. The alleged victim is a natural person, and the Petitioner was authorized under Article 23 of the Commission's Rules of Procedure to lodge the petition on behalf of Mr. Domingues. The Commission is therefore competent to examine this petition. B. Admissibility 31. With respect to the admissibility of Mr. Domingues’ complaints, the information presented by the Petitioner indicates that Mr. Domingues has filed a motion in the State trial court to correct an “illegal sentence”. The Court denied that motion and Mr. Domingues appealed to the Nevada Supreme Court, the highest court in the state. In reviewing the case, the Nevada Supreme Court examined only the single issue of whether Nevada law is superseded by an international treaty ratified by the United States that prohibits the execution of individuals who committed capital offenses while under the age of eighteen. The Court concluded that a reservation to the ICCPR made by the U.S. Senate purporting to reserve the right to execute juvenile offenders despite the non-derogation provisions of the ICCPR permitted the execution of Mr. Domingues. The Nevada Supreme Court, like the trial court below, did not discuss the issues of whether the reservation was valid or whether the execution of children under eighteen years of age violated customary international law or jus cogens. Because both the trial court and the Nevada Supreme Court failed to issue a ruling on the merits, the Petitioner submits that Mr. Domingues has been denied his right to a substantive appeal. 32. Further, according to the record, on March 3, 1999 Mr. Domingues filed a petition for writ of certiorari to the U.S. Supreme Court alleging violations of the ICCPR, customary international law and jus cogens. On November 1, 1999 the U.S. Supreme Court denied Mr. Domingues’ writ without discussion. The State has not alleged or otherwise established that Mr. Domingues failed to exhaust the domestic remedies available to him in the United States with respect to the issues raised before the Commission. 33. Based upon the information before it, the Commission finds that the claims of violations of Articles I, II, VII and XXVI of the American Declaration contained in the Petitioner's petition of December 20, 1999 are not inadmissible for failure to exhaust domestic remedies in accordance with Article 31(1) of the Commission's Rules of Procedure.[15] 34. In addition, the record in this case indicates that a petition was lodged on Mr. Domingues’ behalf on May 1, 2000 and therefore within 6 months of the denial of his writ of certiorari by the U.S. Supreme Court. The State has not contested the timeliness of Mr. Domingues’ petition. The Commission therefore does not find the Petitioner's petition to be inadmissible for violation of the 6-month period under Article 32 of the Commission's Rules of Procedure.[16] 35. There is no evidence on the record indicating that the subject matter of Mr. Domingues’ complaint is pending in another international proceeding for settlement as provided for under Article 33(1)(a) of the Commission’s Rules of Procedure.[17] Further, while the Commission has received two petitions in this case which essentially duplicate the same subject matter, Mr. Domingues has, consistent with the terms of Article 33(2)(b) of the Commission’s Rules of Procedure,[18] authorized Mr. Blaskey as the author of the second petition to represent him for the purposes of the proceeding before the Commission, and the Commission has consolidated the complaints on this basis. The State has not objected to the petition on grounds of duplication. The Petitioner’s claims are therefore not inadmissible under Article 33(1)(a) of the Commission’s Rules of Procedure. 36. Finally, having reviewed the Parties' observations and other material on the record in this matter, and in the light of the heightened level of scrutiny that the Commission has traditionally applied in cases involving the implementation of capital punishment, the Commission considers that the Petitioner's petition is not manifestly groundless and contains facts that, if proven, tend to establish violations of Articles I, II, VII and XXVI of the American Declaration. Consequently, the Commission does not find Mr. Domingues’ petition to be inadmissible under Article 34 of the Commission's Rules of Procedure.[19] 37. In accordance with the foregoing analysis of the requirements of the applicable provisions of the Commission’s Rules of Procedure, the Commission decides to declare as admissible the claims presented in the Petition before it with respect to Articles I, II, VII, and XXVI of the American Declaration, and to proceed to examine the merits of the complaint. C. Merits1. Standard of Review 38. Before addressing the merits of the present case, the Commission wishes to reaffirm and reiterate its well-established doctrine that a heightened level of scrutiny will be applied in deciding cases involving capital punishment. The right to life is widely-recognized as the supreme right of the human being, and the conditio sine qua non to the enjoyment of all other rights. The Commission therefore considers that it has an enhanced obligation to ensure that any deprivation of life that an OAS member state proposes to perpetrate through the death penalty complies strictly with the requirements of the applicable inter-American human rights instruments, including the American Declaration. This "heightened scrutiny test" is consistent with the restrictive approach taken by other international human rights authorities to the imposition of the death penalty,[20] and has been articulated and applied by the Commission in previous capital cases before it.[21] 39. The Commission further notes that the heightened scrutiny test applicable to death penalty cases is not precluded by the Commission's fourth instance formula. According to this formula, the Commission in principle will not review the judgments issued by domestic courts acting within their competence and with due judicial guarantees.[22] Where a possible violation of an individual's rights under applicable inter-American human rights instruments is involved, however, the Commission has consistently held that the fourth instance formula has no application.[23] The Commission will therefore review the allegations made by the Petitioner with a heightened level of scrutiny, to ensure that Mr. Domingues’ rights under the American Declaration have been properly respected by the State. 2. The Commission’s Decision in Roach and Pinkerton 40. The Commission notes at the outset of its analysis that the Petitioner’s arguments draw significantly upon the Commission’s 1987 decision in the case of Roach and Pinkerton against the United States.[24] That case concerned two juvenile offenders, James Terry Roach and Jay Pinkerton, who were sentenced to death in the states of, respectively, South Carolina and Texas, for crimes committed when they were seventeen years of age. Both petitioners were subsequently executed by those states. In determining the complaint brought before it on behalf of the Mr. Roach and Mr. Pinkerton, the Commission considered whether the United States had in sentencing the two prisoners to death and subsequently allowing their executions acted contrary to a recognized norm of jus cogens or customary international law. While the Commission determined the existence of a jus cogens norm prohibiting the execution of children, it found that uncertainty existed as to the applicable age of majority under international law. The Commission specifically articulated the issue before it as follows:
41. The Commission ultimately concluded that there did not exist at that time a norm of jus cogens or other customary international law prohibiting the execution of persons under 18 years of age:
42. Accordingly, in determining the present complaint, the Commission must address whether the state of international law concerning the execution of individuals under the age of 18 has evolved since its decision in Roach and Pinkerton. 3. The American Declaration, Customary International Law and Norms of Jus Cogens 43. In addressing the claims raised by the Petitioner concerning the present status of rules governing the execution of minors under international law, it is first instructive to provide a brief overview of the categories of rules of international law pertinent to this analysis, namely customary international law and norms of jus cogens, as well as the principal means by which the contents of those rules are manifested. 44. In this connection, the Commission recalls that in interpreting and applying the Declaration, its provisions, including Articles I, VII and XXVI, should be considered in the context of the broader international and inter-American human rights systems, in the light of developments in the field of international human rights law since it was first composed.[28] Due regard should in this respect be given to other relevant rules of international law applicable to member states against which complaints of violations of the Declaration are properly lodged[29] as well as developments in the corpus juris gentium of international human rights law over time and in present-day conditions.[30] 45. Developments in the corpus of international human rights law relevant to interpreting and applying the American Declaration may in turn be drawn from various sources of international law,[31] including the provisions of other international and regional human rights instruments[32] and customary international law,[33] including those customary norms considered to form a part of jus cogens.[34] 46. With respect to the rules of customary international law in particular, while these rules are of an inherently changeable nature and therefore cannot be the subject of a definitive or exhaustive enumeration, there nevertheless exists a broad consensus in respect of the component elements required to establish a norm of customary international law. These include:
47. These elements in turn suggest that when considering the establishment of such a customary norm, regard must be had to evidence of state practice.[36] While the value of potential sources of evidence vary depending on the circumstances, state practice is generally interpreted to mean official governmental conduct which would include state legislation, international and national judicial decisions, recitals in treaties and other international instruments, a pattern of treaties in the same form, the practice of international and regional governmental organizations such as the United Nations and the Organization of American States and their organs, domestic policy statements, press releases and official manuals on legal questions.[37] In summary, state practice generally comprises any acts or statements by a state from which views about customary laws may be inferred.[38] 48. Once established, a norm of international customary law binds all states with the exception of only those states that have persistently rejected the practice prior to its becoming law. While a certain practice does not require universal acceptance to become a norm of customary international law, a norm which has been accepted by the majority of States has no binding effect upon a State which has persistently rejected the practice upon which the norm is based.[39] 49. Turning to the rules which govern the establishment of rules of jus cogens, this Commission has previously defined the concept of jus cogens as having been derived from ancient law concepts of a “superior order of legal norms, which the laws of man or nations may not contravene” and as the “rules which have been accepted, either expressly by treaty or tacitly by custom, as being necessary to protect the public morality recognized by them.”[40] It has been said that the principal distinguishing feature of these norms is their “relative indelibility,” in that they constitute rules of customary law which cannot be set aside by treaty or acquiescence but only by the formation of a subsequent customary rule of contrary effect.[41] More particularly, as customary international law rests on the consent of nations, a state that persistently objects to a norm of customary international law is not bound by that norm. Norms of jus cogens, on the other hand, derive their status from fundamental values held by the international community, as violations of such preemptory norms are considered to shock the conscience of humankind and therefore bind the international community as a whole, irrespective of protest, recognition or acquiescence.[42] Commonly cited examples of rules of customary law that have attained the status of jus cogens norms include genocide, slavery, forced disappearances and torture or other cruel, inhuman or degrading treatment or punishment.[43] It has been suggested that a reliable starting point in identifying those international legal proscriptions that have achieved jus cogens status is the list of rights that international human rights treaties render non-derogable.[44] 50. Therefore, while based on the same evidentiary sources as a norm of customary international law, the standard for determining a principle of jus cogens is more rigorous, requiring evidence of recognition of the indelibility of the norm by the international community as a whole. This can occur where there is acceptance and recognition by a large majority of states, even if over dissent by a small number of states.[45] 4. International Legal Status of the Execution of Juveniles 51. Article I of the Declaration provides that “[e]very human being has the right to life, liberty and the security of his person.” 52. The Commission notes that while Article I of the American Declaration does not explicitly refer to the issue of capital punishment, the Commission has in past decisions declined to interpret Article I of the Declaration as either prohibiting use of the death penalty per se, or conversely as exempting capital punishment from the Declaration's standards and protections altogether. Rather, in part by reference to the drafting history of the American Declaration as well as the terms of Article 4 of the American Convention on Human Rights, the Commission has found that Article I of the Declaration, while not precluding the death penalty altogether, prohibits its application when doing so would result in an arbitrary deprivation of life or would otherwise be rendered cruel, infamous or unusual punishment.[46] 53. As noted above, the Petitioner argues that in the light of developments since 1986, a norm of customary international law now exists which prevents the execution of offenders aged 16 or 17 years old at the time of their crime. The Petitioner submits that this norm has acquired the status of jus cogens.[47] Consequently, the Petitioner asks that the Commission’s decision in the case of Roach and Pinkerton be reviewed and extended, so as to find that Article I of the Declaration prohibits Mr. Domingues’ execution as an offender who committed his crime when he was under 18 years of age. 54. In addressing this issue, the Commission must therefore evaluate whether the provisions of the American Declaration, when interpreted in the context of pertinent developments in customary international law and the norms of jus cogens, prohibit the execution of individuals who committed their crime when they were under the age of 18. In so doing, it is appropriate for the Commission to take into account evidence of relevant state practice as disclosed by various sources, including recitals in treaties and other international instruments, a pattern of treaties in the same form, the practice of the United Nations and other international governmental organizations, and the domestic legislation and judicial decisions of states. a. Treaties55. Since 1987, several notable developments have occurred in relation to treaties that explicitly prohibit the execution of individuals who were under 18 years of age at the time of committing their offense. These developments include the coming into force of new international agreements as well as broadened ratifications of existing treaties. 56. Most significantly, on November 20, 1989 the U.N. General Assembly adopted the United Nations Convention on the Rights of the Child. Article 37(a) of the Convention provides that:
57. The treaty subsequently entered into force on September 2, 1990, and as of September 2001 the Convention had 191 state parties with no explicit reservations taken to Article 37(a).[48] The United States signed the Convention in February 1995, but has not yet ratified the Convention, joining Somalia as the only two states that are not parties to this treaty. In the Commission’s view, the extent of ratification of this instrument alone constitutes compelling evidence of a broad consensus on the part of the international community repudiating the execution of offenders under 18 years of age. 58. The International Covenant on Civil and Political Rights (ICCPR) was adopted by the UN General Assembly in 1966 and entered into force in 1976. There are presently 64 signatories and 147 Parties to the ICCPR.[49] Since 1986, sixty-four countries have acceded to or ratified the Covenant,[50] including the United States in 1992.[51] Article 6(5) of the ICCPR, like Article 37(a) of the Convention on the Rights of the Child, provides that:
59. Of the states parties to this Convention, only the instruments of ratification of the U.S. and of accession by Thailand are presently accompanied by declarations or reservations in respect of Article 6(5). Thailand provided an interpretive declarations for Article 6(5) that reads as follows:
60. The effect of Thailand’s declaration is therefore to clarify that despite the strict terms of its applicable legislation, in practice it does not execute juvenile offenders and therefore in real terms had already complied with Article 6(5) of the ICCPR. 61. For its part, the United States asserted the following reservation to Article 6(5) upon becoming a party to the ICCPR:
62. It is noteworthy that this reservation provoked condemnation within the international community and prompted eleven European States Parties to file objections declaring the reservation to be invalid, a majority on the basis that it was inconsistent with the aims and purposes of the ICCPR as provided by Article 19(c) of the Vienna Convention on the Law of Treaties.[52] Moreover, in 1995 the U.N. Human Rights Committee declared this reservation to be contrary to the object and purpose of the ICCPR and recommended that the United States withdraw it.[53] 63. Other international and regional human rights treaties that regulate the implementation of the death penalty have likewise witnessed an increase in states parties thereto since 1987. With regard to the inter-American human rights system in particular, Article 4 of the American Convention on Human Rights provides
64. There are presently 24 state parties to the American Convention.[54] Since 1986, the following 5 OAS member states ratified or acceded to the Convention, none of which claimed reservations respecting the prohibition under Article 4(5) of the execution of juveniles: Brazil (1992); Chile (1990); Dominica (1993); Suriname (1987); Trinidad and Tobago (1991, which subsequently denounced the Convention in 1998). The United States signed the American Convention in 1977 but has never ratified the treaty. The Commission considers that this broad hemispheric adherence to the American Convention, including Article 4(5) thereof, constitutes compelling evidence of a regional norm repudiating the application of the death penalty to persons under 18 years of age even amongst those states such as Guatemala, Jamaica and Grenada that, like the United States, have retained the death penalty. 65. These international and regional developments have been accompanied by initiatives in both the inter-American and European systems to prohibit the application of the death penalty altogether. In 1990, for example, the Protocol to the American Convention on Human Rights to Abolish the Death Penalty was approved by the OAS General Assembly at its twentieth regular session in Asuncion, Paraguay. Eight States have since signed and ratified the Protocol. Similarly, Protocol Nº 6 to the European Convention on Human Rights concerning the Abolition of the Death Penalty abolishes the death penalty entirely except in times of war. The protocol came into force in March 1985 and presently has been ratified by 39 European States. Three states have signed but not yet ratified the Protocol and Turkey stands alone as the only member state of the Council of Europe which has not signed the protocol. 66. In the Commission’s view, these developments in the corpus of international human rights law should also be viewed in light of corresponding provisions in the related field of international humanitarian law.[55] In this respect, the Fourth Geneva Convention of 1949 and related instruments prohibit the imposition of the death penalty upon juveniles in times of armed conflict or occupation.[56] Article 68, paragraph 4 of the Fourth Geneva Convention, which governs the application of penal laws to protected persons in situations of occupation, provides in part that
67. As of January 1, 1986, there were 162 state parties to the Fourth Geneva Convention, and as of 2001, the number of state parties had risen to 189.[57] This includes the United States, which ratified the Convention on August 2, 1955 absent any reservation to paragraph 4 of Article 68. On this point, the Commission can identify no appropriate justification for applying a more restrictive standard for the application of the death penalty to juveniles in times of occupation than in times of peace, relating as this protection does to the most basic and non-derogable protections for human life and dignity of adolescents that are common to both regimes of international law. As the International Committee of the Red Cross observed in its Commentary on Article 68, paragraph 4 of the Fourth Geneva Convention:
68. The foregoing analysis therefore indicates that since 1987, and consistent with events prior to that date, there has been concordant and widespread development and ratification of treaties by which nearly all of the world states have recognized, without reservation, a norm prohibiting the execution of individuals who were under 18 years of age at the time of committing their offense. b. United Nations Resolutions and Standards69. The developments in treaty law discussed above have been accompanied by similar initiatives and practices on the part of United Nations bodies. Prior to the Commission’s decision in Roach and Pinkerton, the Third Committee of the United Nations General Assembly in 1980 had already recognized Article 6 of the ICCPR as constituting a “minimum standard” for all U.N. members states and not just those that had ratified the ICCPR.[59] Consistent with this position, on August 24, 1999 the United Nations Sub-committee on the Promotion and Protection of Human Rights passed a resolution condemning the imposition of the death penalty on those who were under 18 at the time of their offence and calling upon countries that continued to execute juveniles to bring an end to the practice.[60] In addition, the 54th Session of the United Nations Commission on Human Rights passed a resolution calling on States that maintained the death penalty to comply with the International Covenant by not imposing the death penalty for crimes committed by persons below eighteen years of age.[61] 70. Standards have also been adopted by the United Nations Economic and Social Council that forbid the execution of children who committed their crimes when they were under eighteen.[62] Those same standards have been endorsed by the General Assembly and the Seventh United Nations Congress on the Prevention of Crime and Treatment of Offenders.[63] The United Nations Standard Minimum Rules for the Administration of Juvenile Justice likewise prohibits the execution of juvenile offenders.[64] 71. It is therefore apparent that the United Nations bodies responsible for human rights and criminal justice have consistently supported the norm expressed in international human rights agreements prohibiting the execution of offenders under the age of 18. c. Domestic Practice of States 72. The articulation of an international norm proscribing the execution of juvenile offenders through international practice has been accompanied by the expression of a similar standard in the domestic practice of states. In 1986, 46 countries had abolished the death penalty for traditional crimes, with the exception of certain crimes committed under military law or in time of war. Today, according to available statistics the number has more than doubled, with an additional 49 countries having abolished the death penalty during the intervening fifteen years for all but exceptional crimes. Moreover, a further 20 countries have not carried out any executions for ten years or more. It has been stated that the average annual rate at which countries have abolished the death penalty has increased from 1.5 (1965-1988) to 4 per year (1989-1995), or nearly three times as many.[65] According to statistics compiled by Amnesty International, a leading source of research and information concerning the global application of the death penalty, 109 countries have abolished the death penalty by law or in practice as of the year 2001.[66] 73. Also according to statistics compiled by Amnesty International, 115 states whose laws maintain the death penalty for some offences either have provisions in their laws which exclude the use of the death penalty against child offenders, or may be presumed to exclude such use by virtue of becoming parties to the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child or the American Convention on Human Rights without entering a reservation to the relevant articles of these treaties.[67] Since the beginning of 1994 at least 5 countries have changed their laws to eliminate the use of the death penalty against child offenders: Barbados, Pakistan, Yemen, Zimbabwe and China. [68] 74. A small minority of states persist in executing juvenile offenders. Since 1990, 7 countries are known to have executed prisoners who were under 18 years old at the time of the crime - Congo (Democratic Republic), Iran, Nigeria, Pakistan, Saudi Arabia, U.S. and Yemen.[69] A study of the worldwide executions of child offenders cite a total of 25 executions within that 10 year period. 14 of those executions were carried out by the United States of America, 6 were conducted in Iran and the remaining 5 nations carried out one execution each. Both Pakistan and Yemen are now reported to have abolished the death penalty for 16 and 17 year old offenders.[70] In the year 2000, only 3 countries carried out any juvenile executions: the U.S., the Democratic Republic of Congo and Iran. In 1999 juvenile executions took place only in Iran and the U.S. In 1998, the U.S. was alone in its execution of 3 juvenile offenders. Yemen’s sole execution took place in 1993, and Saudi Arabia’s in 1992, with the consequence that since 1998, only three states, the U.S., Congo and Iran, have executed juvenile offenders sentenced to death.[71] 75. As with adherence to regional treaties in the Western Hemisphere, it is pertinent to note that of the few states that have continued to execute juveniles, none but the United States are counted among the members of the inter-American system. In the Commission’s view, this reinforces the existence of a particularly pervasive regional norm repudiating the application of the death penalty to persons under 18 years of age. 76. Domestic practice over the past 15 years therefore evidences a nearly unanimous and unqualified international trend toward prohibiting the execution of offenders under the age of 18 years. This trend crosses political and ideological lines and has nearly isolated the United States as the only country that continues to maintain the legality of the execution of 16 and 17 year old offenders, and then, as the following discussion indicates, only in certain state jurisdictions. d. Practice of the United States 77. Within the United States, judicial determinations and legislative initiatives over the past 20 years have also demonstrated a trend towards lack of acceptance of the application of the death penalty to those offenders under the age of 18 years. At the time of the decision of the U.S. Supreme Court in the case Thompson v. Oklahoma in 1988, 36 states authorized the use of capital punishment and of those, 18 required that the defendant attain at least the age of 16 years at the time of his or her offense, while another 19 provided no minimum age for the imposition of the death penalty.[72] In the Thompson decision, the U.S. Supreme Court held that the execution of offenders under the age of sixteen years at the time of their crimes was prohibited by the Eighth Amendment to the United States Constitution.[73] In its analysis of that case, the Supreme Court concluded that it would “offend civilized standards of decency to execute a person who was less than 16 years old at the time of his or her offense,” and cited in support of its conclusion the fact that
78. Moreover, since this initiative by the U.S. Supreme Court to establish a minimum age of 16 at which an offender may be executed in the United States, additional state jurisdictions have moved toward a higher standard. In 1999, for example, the Florida Supreme Court interpreted the Florida Constitution to prohibit the death penalty for sixteen-year-old offenders, ruling that the execution of a person who was 16 years old at the time of his crime violated the Florida Constitution and its prohibition against cruel and unusual punishment.[75] On April 30, 1999 a revision of Montana state law raised the minimum age of offenders who are eligible for the death penalty from 16 year to 18 years of age. 79. Currently within the United States, 38 states and the federal military and civilian jurisdictions have statutes authorizing the death penalty for capital crimes. Of those jurisdictions, 16 have expressly chosen the age of 18 at the time of the crime as the minimum age for eligibility the death sentence,[76] compared to approximately 10 in 1986,[77] and 23 states allow the execution of those under 18, compared to 27 in 1986.[78] These statistics complement the international movement toward the establishment of 18 as the minimum age for the imposition of capital punishment. The Commission considers it significant in this respect that the U.S. federal government itself has considered 18 year to be the minimum age for the purposes of federal capital crimes.[79] As the U.S. government is the authority responsible for upholding that State’s obligations under the American Declaration and other international instruments, the Commission considers the federal government’s adoption of 18 as the minimum age for the application of the federal death penalty as a significant indication by the United States itself of the appropriate standard on this issue. e. Related Developments Regarding the Age of Majority 80. The Commission notes that the emergence of 18 as the minimum age for the execution of offenders is consistent with developments in other fields of international law addressing the age of majority for the imposition of serious and potentially fatal obligations and responsibilities. The Commission notes in particular the establishment of 18 as the minimum age for individuals to take direct part in hostilities as members of their state’s armed forces. In this respect, the Optional Protocol to the Convention on the Rights of the Child respecting the involvement of children in armed conflicts, which was adopted and opened for signature, ratification and accession on May 25, 2000,[80] provides in Article I that the age of 18 years represents a threshold below which special protection is required:
81. The United States signed the Optional Protocol on September 7, 2000, and while it has not yet ratified the Protocol or the underlying Convention, both the President of the United States[81] and the U.S. Congress expressed support for the rule prescribed in Article I, with Congress encouraging the United States delegation “not to block the drafting of an optional protocol to the Convention on the Rights of the Child that would establish 18 as the minimum age for participation in armed conflict.”[82] 82. Support for this standard has also been expressed by the OAS General Assembly, which by resolution dated June 5, 2000 noted that more than 300,000 children under 18 years of age were at that time participating in armed conflicts worldwide. In light of this statistic, the General Assembly called upon member states to consider signing and ratifying the Optional Protocol to the United Nations Convention on the Rights of the Child regarding the participation of children in armed conflicts.[83] Similar standards have been recognized internationally and within the United States itself in connection with areas of societal participation, such as the right to vote, in which the attainment of the age of 18 is considered a minimum and necessary prerequisite.[84] 83. Accordingly, a finding that an international norm has emerged establishing 18 as the minimum age at which an individual is liable to face the ultimate punishment of death is, in the Commission’s view, entirely consistent with corresponding developments relating to obligations of an equivalent or lesser nature, such as participating in armed conflict or electing political leaders. Indeed, it is difficult to rationalize, much less justify, why a lesser standard should apply in the implementation of capital punishment. This is particularly evident given the broadly-recognized international obligation of states to provide enhanced protection to children, which includes ensuring the well-being of juvenile offenders and endeavor their rehabilitation. These obligations are reflected in Article 19 of the American Convention[85] and Article VII of the American Declaration[86] and, as interpreted by the Inter-American Court of Human Rights, require that “when the State apparatus has to intervene in offenses committed by minors, it should make substantial efforts to guarantee their rehabilitation in order to ‘allow them to play a constructive and productive role in society.’”[87] f. Conclusion 84. In the Commission’s view, the evidence canvassed above clearly illustrates that by persisting in the practice of executing offenders under age 18, the U.S. stands alone amongst the traditional developed world nations and those of the inter-American system, and has also become increasingly isolated within the entire global community. The overwhelming evidence of global state practice as set out above displays a consistency and generality amongst world states indicating that the world community considers the execution of offenders aged below 18 years at the time of their offence to be inconsistent with prevailing standards of decency. The Commission is therefore of the view 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. 85. Moreover, the Commission is satisfied, based upon the information before it, that this rule has been recognized as being of a sufficiently indelible nature to now constitute a norm of jus cogens, a development anticipated by the Commission in its Roach and Pinkerton decision. As noted above, nearly every nation state has rejected the imposition of capital punishment to individuals under the age of 18. They have done so through ratification of the ICCPR, U.N. Convention on the Rights of the Child, and the American Convention on Human Rights, treaties in which this proscription is recognized as non-derogable, as well as through corresponding amendments to their domestic laws. The acceptance of this norm crosses political and ideological boundaries and efforts to detract from this standard have been vigorously condemned by members of the international community as impermissible under contemporary human rights standards. Indeed, it may be said that the United States itself, rather than persistently objecting to the standard, has in several significant respects recognized the propriety of this norm by, for example, prescribing the age of 18 as the federal standard for the application of capital punishment and by ratifying the Fourth Geneva Convention without reservation to this standard. On this basis, the Commission considers that the United States is bound by a norm of jus cogens not to impose capital punishment on individuals who committed their crimes when they had not yet reached 18 years of age. As a jus cogens norm, this proscription binds the community of States, including the United States. The norm cannot be validly derogated from, whether by treaty or by the objection of a state, persistent or otherwise. 86. Interpreting the terms of the American Declaration in light of this norm of jus cogens, the Commission therefore concludes in the present case that the United States has failed to respect the life, liberty and security of the person of Michael Domingues by sentencing him to death for crimes that he committed when he was 16 years of age, contrary to Article I of the American Declaration. 87. As a further consequence of this determination, the Commission finds that the United States will be responsible for a further grave and irreparable violation of Mr. Domingues’ right to life under Article I of the American Declaration if he is executed for crimes that he committed when he was 16 years of age. continued...
* Commission Member Professor Robert Goldman did not take part in the discussion and voting on this case, pursuant to Article 17(2) of the Commission's Rules of Procedure. [1] During its 109th special session in December 2000, the Commission approved the Rules of Procedure of the Inter-American Commission on Human Rights, which replaced the Commission’s prior Regulations of April 8, 1980. Pursuant to Article 78 of the Commission’s Rules of Procedure, the Rules entered into force on May 1, 2001. Article 29(2) of the Commission’s prior Regulations has been replaced by Article 25(1) of the Rules of Procedure, which provides: “In serious and urgent cases, and whenever necessary according to the information available, the Commission may, on its own initiative or at the request of a party, request that the State concerned adopt precautionary measures to prevent irreparable harm to persons.” [2] Petitioner’s petition dated December 7, 2000, p. 5. [3] Petitioner’s petition dated December 7, 2000 p. 9 citing James Terry Roach and Jay Pinkerton v. United States, Case 9647, Res. 3/87, 22 September 1987, Annual Report of the IACHR 1986-87, paras. 56, 57, 60. [4] Article 6(5) of the ICCPR prohibits the imposition of the death sentence for crimes committed by persons below eighteen years of age. The Petitioner contends that the United States’ reservation to Article 6(5) of the ICCPR is invalid under Article 19 of the Vienna Convention because it “is incompatible with the object and purpose of the treaty.” [5] Petitioner’s petition dated December 7, 2000, p. 14. [6] Petitioner’s petition dated December 7, 2000, pp. 14-15, citing UN Doc. E/CN.4/Sub.2/1999/RES/4 (24 August 1999); Question of the Death Penalty, UN Hum. Rts. Comm. Res. 1997/12 adopted April 3, 1997. [7] Petitioner’s petition dated December 7, 2000, p. 16, citing Amnesty International, Juveniles and the Death Penalty, at 3-6 November 1998; Fight the Death Penalty in USA, Death Penalty for Juvenile Offenders (Jan. 26, 1999) as indicating that since 1990, only the Democratic Republic of Congo, Iran, Nigeria, Pakistan, Saudi Arabia, Yemen and the United States are known to have executed children who were under 18 years of age at the time of their offense. [8] Petitioner’s petition dated December 7, 2000, p. 17 (indicating that on July 8, 1999, the Supreme Court of Florida ruled that the execution of a person who was 16 years old at the time of his crime violated the Florida Constitution and its prohibition against cruel and unusual punishment, and that on April 30, 1999, the Governor of Montana signed into effect a law that raised the minimum age of offenders who are eligible for the death penalty from 16 to 18 years); Brennan v. Florida, 754 So.2d 1 (Fla. July 8, 1999), rehearing denied October 21, 1999; Mont. Code Ann. §§ 45-2-102 (1999). [9] Roach and Pinkerton v. United States, supra, para. 63. [10] Petitioner’s petition dated December 7, 2000, p. 20. [11] Petitioner’s petition dated December 7, 2000, pp. 21-26. The Petitioner argues, inter alia, that the State’s reservation to Article 6(5) of the ICCPR is invalid as contrary to the object and purpose of the treaty and to a norm of jus cogens, and cites Articles 19 and 53 of the Vienna Convention on the Law of Treaties, an April 6, 1995 report of the U.N. Human Rights Committee finding the U.S. reservation to Article 6(5) to be incompatible with the object and purpose of the Covenant, and direct objections to the U.S. reservation lodged by at least eleven other signatory countries to the ICCPR). [12] Vienna Convention on the Law of Treaties, UN Doc. A/CONF. 39/27 (1969), Article 18. [13] See e.g. Desmond McKenzie et al. v. Jamaica, Case 12.023, Annual Report of the IACHR 1999; Garza v. United States, supra. [14] The Inter-American Court of Human Rights and this Commission have previously determined that the American Declaration of the Rights and Duties of Man is a source of international obligation for the United States and other OAS member states that are not parties to the American Convention on Human Rights, based upon Articles 3, 16, 51, 112, and 150 of the OAS Charter. See I/A Court H.R., Advisory Opinion OC-10/89 Interpretation of the American Declaration of the Rights and Duties of Man Within the Framework of Article 64 of the American Convention on Human Rights, July 14, 1989, Ser. A Nº 10 (1989), paras. 35-45; Roach and Pinkerton v. United States, supra, paras. 46-49. See also Statute of the Inter-American Commission on Human Rights, Article 20. [15] Article 31(1) of the Commission’s Rules of Procedure provides: “In order to decide on the admissibility of a matter, the Commission shall verify whether the remedies of the domestic legal system have been pursued and exhausted in accordance with the generally recognized principles of international law.” [16] Article 32 of the Commission’s Rules of Procedure provides: “The Commission shall consider those petitions that are lodged within a period of six-months following the date on which the alleged victim has been notified of the decision that exhausted domestic remedies.” [17] Article 33(1)(a) of the Commission’s Rules of Procedure provides: “The Commission shall not consider a petition if its subject matter: a. is pending settlement pursuant to another procedure before an international governmental organization of which the State concerned is a member.” [18] Article 32(2)(b) of the Commission’s Rules of Procedure provides: “However, the Commission shall not refrain from considering petitions referred to in paragraph 1 when: (b) the petitioner before the Commission or a family member is the alleged victim of the violation denounced and the petitioner before the other organization is a third party or a nongovernmental entity having no mandate from the former.” [19] Article 34 of the Commission’s Rules of Procedure provides: “The Commission shall declare any petition or case inadmissible when: a. It does not state facts that tend to establish a violation of the rights referred to in Article 27 of these Rules of Procedure; b. the statements of the petitioner or of the State indicate that it is manifestly groundless or out of order; or c. supervening information or evidence presented to the Commission reveals that a matter is inadmissible or out of order.” [20] See e.g. I/A Court H.R., Advisory Opinion OC-16/99 (1 October 1999) “The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law”, para. 136 (finding that “[b]ecause execution of the death penalty is irreversible, the strictest and most rigorous enforcement of judicial guarantees is required of the State so that those guarantees are not violated and a human life not arbitrarily taken as a result”); Baboheram-Adhin et al. V. Suriname, Communication Nos. 148-154/1983, adopted 4 April 1985, para. 14.3 (finding that the law must strictly control and limit the circumstances in which a person may be deprived of his life by the authorities of the state.); Report by the U.N. Special Rapporteur on Extra-judicial Executions, Mr. Bacre Waly Ndiaye, submitted pursuant to Commission on Human Rights Resolution 1994/82, Question of the Violation of Human Rights and Fundamental Freedoms in any part of the World, with particular reference to Colonial and Other Dependent Countries and Territories, UN Doc.E/CN.4/1995/61 (14 December 1994) (hereinafter “Ndiaye Report”), para. 378 (emphasizing that in capital cases, it is the application of the standards of fair trials to each and every case that needs to be ensured and, in case of indications to the contrary, verified, in accordance with the obligation under international law to conduct exhaustive and impartial investigations into all allegations of violation of the right to life.). [21] See e.g. IACHR, Andrews v. United States, Report 57/96, Annual Report of the IACHR 1997), paras. 170-171; IACHR, Baptiste v. Grenada, Report Nº 38/00, Annual Report of the IACHR 1999, paras. 64-66; McKenzie et al. v. Jamaica, Report Nº 41/00, Annual Report of the IACHR 1999, paras. 169-171. [22] See IACHR, Santiago Marzioni v. Argentina, Report Nº 39/96, Annual Report of the IACHR 1996, p. 76, paras. 48-52. See also IACHR, Clifton Wright v. Jamaica, Report Nº 29/88, Annual Report of the IACHR 1987-88, p. 154. [23] See e.g. Marzioni v. Argentina, supra; Wright v. Jamaica, Case, supra; Baptiste v. Grenada, supra, para. 65; McKenzie et al. V. Jamaica, supra, para. 170. [24] Roach and Pinkerton v. United States, supra. [25] Roach and Pinkerton v. United States, supra, paras. 56, 57. [26] At the time of the Roach and Pinkerton case, these States were: California, Colorado, Connecticut, Illinois, Nebraska, New Jersey, New Mexico, Ohio and Tennessee. [27] Roach and Pinkerton v. United States, supra, para. 60. [28]
See I/A Court H.R., Interpretation of the American Declaration
of the Rights and Duties of Man Within the Framework of Article 64 of
the American Convention on Human Rights, Advisory Opinion OC-10/89 of
July 14, 1989, [29] The Inter-American Court of Human Rights has viewed with approval the Commission's practice of applying sources of international law in addition to the American Convention. In its Advisory Opinion interpreting the terms "other treaties" in Article 64 of the American Convention, the Court stated: The Commission has properly invoked in some of its reports and resolutions "other treaties concerning the protection of human rights in the American states", regardless of their bilateral or multilateral character, or whether they have been adopted within the framework or under the auspices of the inter-American system. See I/A Court H.R., Advisory Opinion OC-1/82 of September 24, 1982, "Other Treaties" Subject to the Advisory Jurisdiction of the Court (Article 64 of the American Convention on Human Rights), (Ser. A) Nº 1 at para. 43 (1982). [30] Advisory Opinion OC-16/99, supra, para. 114, citing, inter alia, the decisions of the European Court of Human Rights in Tyrer v. United Kingdom (1978), Marckx v. Belgium (1979), and Louizidou v. Turkey (1995). [31] Article 38(1) of the Statute of the International Court of Justice prescribes what are broadly considered to constitute the primary and secondary sources of international law, namely: a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states ; a) international custom, as evidence of a general practice accepted as law ; a) the general principles of law recognized by civilized nations ; a) judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. Statute of the International Court of Justice, 59 Stat. 1055, T.S. 993, Art. 38(1). [32] The Commission notes in this regard that the Inter-American Court of Human Rights has considered the U.N. Convention on the Rights of the Child to form part of the comprehensive corpus juris for the protection of the child that is appropriately used to establish the content and scope of the rights of the child under Article 19 of the American Convention on Human Rights. I/A Court H.R., Villagran Morales et al. Case (The “Street Children” Case), Judgment of November 19, 1999 (Merits), Annual Report 1999, p. 665, para. 194. See also IACHR, Report on the Human Rights of Asylum Seekers in the Canadian Refugee Determination System, OEA/Ser.L/V/II.106 Doc 40, rev (February 28, 2000), para. 38 (confirming that while the Commission clearly does not apply the American Convention on Human Rights in relation to member states that have yet to ratify that treaty, its provisions may well be relevant in informing an interpretation of the principles of the Declaration). [33] The Restatement of Foreign Relations Law of the United States defines customary international law as constituting those rules that result from a general and consistent practice of states followed by them from a sense of legal obligation. See Restatement of Foreign Relations Law of the United States (Third) § 102(2) (1987). [34] See Vienna Convention on the Law of Treaties, UN Doc. A/CONF. 39/27 (1969), Article 53 (providing that “[a] treaty is void if at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present convention, a peremptory norm of general international law is 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 general international law having the same character.”) [35] Yearbook of the International Law Commission, 1950, II, 26, para. 11. See similarly Ian Brownlie, Principles of Public International Law (5th ed., 1998) at 5 (identifying four attributes of a rule of customary international law: duration; uniformity and consistency of practice; generality of practice; and opinio juris et necessitatis). [36] See e.g. Asylum Case, ICJ Reports (1950), at 276-7 (stating that a part that relies on custom “must prove that this custom is established in such a manner that it has become binding on the other party […] that the rule invoked […] is in accordance with a constant and uniform usage practiced by the States in question, and that this usage is the expression of a right appertaining to the State granting asylum and a duty incumbent on the territorial State. This follows from Article 38 of the Statute of the Court, which refers to international custom ‘as evidence of a general practice accepted as law.’”). [37] Id. See also J.L. Brierly, The Law of Nations (6th ed., 1963 ) at 61-62. [38] Malcolm N. Shaw, International Law (4th ed., 1997) at 66. [39] See e.g. Anglo-Norweigian Fisheries Case, ICJ Reports (1951), p. 131 (recognizing the principle that a state may contract out of a custom in the process of formation); Brownlie, supra, at 10. [40] IACHR, Roach and Pinkerton v. United States, Case 9647, Annual Report of the IACHR 1987, para. 55. [41] Brownlie, supra, at 515. See also Vienna Convention on the Law of Treaties, supra, Articles 53, 64. [42] See Barcelona Traction Case (Second Phase), ICJ Reports (1970) 3 at 32, sep. op. Judge Ammoun (indicating that obligations of jus cogens “derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination.”). See similarly East Timor Case, ICJ Reports (1995) 90 at 102. [43] See e.g. The Restatement of Foreign Relations Law of the United States, supra, § 702 and comment n (indicating that while not all human rights norms are peremptory norms (jus cogens), several norms can be identified as falling within this category, such that an international agreement that violates them is void, if they are practiced, encouraged, or condoned as a matter of state policy: genocide; slavery or slave trade; the murder or causing the disappearance of individuals; torture or other cruel, inhuman, or degrading treatment or punishment; prolonged arbitrary detention; systematic racial discrimination; and a consistent pattern of gross violations of internationally recognized human rights). [44] See Richard Lillich, Civil Rights, in Human Rights in International Law: Legal and Policy Issues 115, 118, n. 17 (Theodor Meron ed., 1988). [45] See e.g. The Restatement of Foreign Relations Law of the United States, supra, § 102 and report’s note 6 (1986), citing Report of the Proceedings of the Committee of the Whole, May 21, 1968, UN Doc. A/Conf.39/11 at 471-72. [46] See e.g. Roach and Pinkerton v. United States, supra; Andrews v. United States, Report Nº 57/96, Annual Report of the IACHR 1997. [47] The Commission notes that according to some U.S. courts, international law that has risen to the level of a jus cogens norm is legally binding on domestic courts. See United States v. Mata-Ballesteros, 71 F.3d 754 (9th Cir. 1995); In Committee of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2f 929 (D.C. Cir. 1988); White v. Paulson, 997 F. Supp. 1380 (E.D. Wash. 1998) [48]
UN Convention on the Rights of the Child, G.A. Res. 44/25, UN GAOR, 44th
Sess., Supp. Nº 49, at 167, UN Doc. A/44/49 (1989), reprinted in 28
I.L.M. 1448 (1989). See also United Nations Treaty Database,
U.N. Convention on the [49] International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S. 171. See also United Nations Treaty Database, International Covenant on Civil and Political Rights (last modified September 5, 2001), <http: // untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterIII/treaty29.asp>. [50] Albania (1991); Algeria (1989); Angola (1992); Armenia (1993); Azerbaijan (1992); Bangladesh (2000); Belize (1996); Benin (1992); Bosnia and Herzegovina (1993); Botswana (2000); Brazil (1992); Burkina Faso (1999); Burundi (1990); Cambodia (1992); Cape Verde (1993); Chad (1995); Cote d’Ivoire (1992); Croatia (1992); Czech Republic (1993); Dominica (1993); Equatorial Guinea (1987); Estonia (1991); Ethiopia (1993); Ghana (2000); Greece (1997); Grenada (1991); Guatemala (1992); Haiti (1991); Honduras (1997); Ireland (1989); Israel (1991); Kuwait (1996); Kyrgyzstan (1994); Latvia (1992); Lesotho (1992); Liechtenstein (1998); Lithuania (1991); Malawi (1993); Malta (1990); Monaco (1997); Mozambique (1993); Namibia (1994); Nepal (1991); Nigeria (1993); Paraguay (1992); Republic of Korea (1990); Republic of Moldova (1993); Seychelles (1992); Sierra Leone (1996); Slovakia (1993); Slovenia (1992); Somalia (1990); South Africa (1998); Switzerland (1992); Tajikistan (1999); Thailand (1996); The Former Yugoslav Republic of Macedonia (1994); Turkmenistan (1997); Uganda (1995); USA (1992); Uzbekistan (1995); Yemen (1987); Yugoslavia (2001); Zimbabwe (1991). [51] In addition, China and Lao People’s Democratic Republic signed the Covenant in 1988 and 2000 respectively. [52] Article 19(c) of the Vienna Convention on the Law of Treaties precludes a state from formulating reservations to a treaty when the reservation is “incompatible with the object and purpose of the treaty.” The states objecting to the U.S. reservation to Article 6(5) of the ICCPR include Belgium, Denmark, Finland, France, Germany, Italy, the Netherlands, Norway, Portugal, Spain and Sweden, the pertinent objections of which read as follows: Belgium: The Government of Belgium wishes to raise an objection to the reservation made by the United States of America regarding article 6, paragraph 5, of the Covenant, which prohibits the imposition of the sentence of death for crimes committed by persons below 18 years of age. Denmark: In the opinion of Denmark, reservation (2) of the United States with respect to capital punishment for crimes committed by persons below eighteen years of age as well as reservation (3) with respect to article 7 constitute general derogations from articles 6 and 7, while according to article 4, para 2 of the Covenant such derogations are not permitted. Finland: With regard to the reservations, understandings and declarations made by the United States of America: As regards reservation (2) concerning article 6 of the Covenant, it is recalled that according to article 4(2), no restrictions of articles 6 and 7 of the Covenant are allowed for. In the view of the Government of Finland, the right to life is of fundamental importance in the Covenant and the said reservation therefore is incompatible with the object and purpose of the Covenant. France: At the time of the ratification of [the said Covenant], the United States of America expressed a reservation relating to article 6, paragraph 5, of the Covenant, which prohibits the imposition of the death penalty for crimes committed by persons below 18 years of age. France considers that this United States reservation is not valid, inasmuch as it is incompatible with the object and purpose of the Convention. Germany: The Government of the Federal Republic of Germany objects to the United States' reservation referring to article 6, paragraph 5 of the Covenant, which prohibits capital punishment for crimes committed by persons below eighteen years of age. The reservation referring to this provision is incompatible with the text as well as the object and purpose of article 6, which, as made clear by paragraph 2 of article 4, lays down the minimum standard for the protection of the right to life. Italy: The Government of Italy, ..., objects to the reservation to art. 6 paragraph 5 which the United States of America included in its instrument of ratification. In the opinion of Italy reservations to the provisions contained in art. 6 are not permitted, as specified in art.4, para 2, of the Covenant. Therefore this reservation is null and void since it is incompatible with the object and the purpose of art. 6 of the Covenant. Netherlands: The Government of the Kingdom of the Netherlands objects to the reservations with respect to capital punishment for crimes committed by persons below eighteen years of age, since it follows from the text and history of the Covenant that the said reservation is incompatible with the text, the object and purpose of article 6 of the Covenant, which according to article 4 lays down the minimum standard for the protection of the right to life. Norway: With regard to reservations to articles 6 and 7 made by the United States of America: 1. In the view of the Government of Norway, the reservation (2) concerning capital punishment for crimes committed by persons below eighteen years of age is according to the text and history of the Covenant, incompatible with the object and purpose of article 6 of the Covenant. According to article 4 (2), no derogations from article 6 may be made, not even in times of public emergency. For these reasons the Government of Norway objects to this reservation. Portugal: With regard to the reservations made by the United States of America: The Government of Portugal considers that the reservation made by the United States of America referring to article 6, paragraph 5 of the Covenant which prohibits capital punishment for crimes committed by persons below eighteen years of age is in compatible with article 6 which, as made clear by paragraph 2 of article 4, lays down the minimum standard for the protection of the right to life. Spain: With regard to the reservations made by the United States of America: After careful consideration of the reservations made by the United States of America, Spain wishes to point out that pursuant to article 4, paragraph 2, of the Covenant, a State Party may not derogate from several basic articles, among them articles 6 and 7, including in time of public emergency which threatens the life of the nation. The Government of Spain takes the view that reservation (2) of the United States having regard to capital punishment for crimes committed by individuals under 18 years of age, in addition to reservation (3) having regard to article 7, constitute general derogations from articles 6 and 7, whereas, according to article 4, paragraph 2, of the Covenant, such derogations are not to be permitted. Therefore, and bearing in mind that articles 6 and 7 protect two of the most fundamental rights embodied in the Covenant, the Government of Spain considers that these reservations are incompatible with the object and purpose of the Covenant and, consequently, objects to them. Sweden: A reservation by which a State modifies or excludes the application of the most fundamental provisions of the Covenant, or limits its responsibilities under that treaty by invoking general principles of national law, may cast doubts upon the commitment of the reserving State to the object and purpose of the Covenant. The reservations made by the United States of America include both reservations to essential and non-derogable provisions, and general references to national legislation. Reservations of this nature contribute to undermining the basis of international treaty law. All States Parties share a common interest in the respect for the object and purpose of the treaty to which they have chosen to become parties. Sweden therefore objects to the reservations made by the United States to: […] article 6; cf. Reservation (2). UN Treaty Database, ICCPR, supra. [53] UNHRC, Comments on the United States of America, UN Doc. CCPR/C/79/Add.50 (1995). See also Consideration of Reports Submitted by State Parties Under Article 40 of the Covenant, U.N. Hum. Rts. Comm., 53d Sess., 1413th mtg, at para. 14, U.N. Doc. CCPR/C/79/Add.50 (1995). [54] Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L/V/I.4 rev.8 (22 May 2001), p. 48. [55] See generally IACHR, Juan Carlos Abella v. Argentina, Case 11.137, Report Nº 55/97, Annual Report of the IACHR 1997, para. 158 (recognizing that the American Convention, as well as other universal and regional human rights instruments, and the 1949 Geneva Conventions “share a common nucleus of non-derogable rights and a common purpose of protecting human life and dignity.”). [56] Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 75 U.N.T.S. 287, Article 68. See also Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Additional Protocol I), 1125 U.N.T.S. 3, Art. 77(5) (providing that the “death penalty for an offence related to the armed conflict shall not be executed on persons who had not attained the age of eighteen years at the time the offence was committed."); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Additional Protocol II), 1125 U.N.T.S. 609, Art. 6(4) (providing that the “death penalty shall not be pronounced on persons who were under the age of eighteen years at the time of the offence"). [57] International Committee of the Red Cross, International Humanitarian Law Database, Treaties, visited August 27, 2001, <http: // www.icrc.org/ihl>. [58] International Committee of the Red Cross, Commentary on the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War (J.S. Pictet ed., 1958), at 346-347. [59] See 12 UN GAOR C.3 (819th mtg) at 287, UN Doc. A/C.3/SR.819. [60] The Death Penalty, Pertaining in Relation to Juvenile Offenders, U.N. Sub-committee on the promotion and Protection of Human Rights, UN Doc. E/CN.4/Sub.2/RES/1999/4 (24 August 1999). See similarly The Death Penalty, Pertaining in Relation to Juvenile Offenders, U.N. Sub-committee on Promotion and Protection of Human Rights, 53rd Sess., Res. 2000/17, adopted August 17, 2000, UN Doc. E/CN.4/Sub.2/RES/2000/17 (2000). [61] Question of the death penalty, UN Hum. Rts. Comm. Res. 1998/8, UN Doc. E/CN.4/RES/1998/8 (3 April 1998), para. 3(a) (urging that all states that still maintain the death penalty “to comply fully with their obligations under the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child, notably not to impose the death penalty for any but the most serious crimes, not to impose it for crimes committed by persons below eighteen years of age, to exclude pregnant women from capital punishment and to ensure the right to seek pardon or commutation of sentence”). [62] Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, ECOSOC Res. 1984/50 (25 May 1984), Annex, para. 3 (providing that "[p]ersons below 18 years of age at the time of the commission of the crime shall not be sentenced to death"). [63] See U.N.G.A. Res. 39/118 (14 December 1984); Report of the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders (26 August to 6 September 1985) UN Doc. A/ Conf.121/22 (1985) at 86-87. [64] UN Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”), G.A. Res 40/33, Nov 29, 1985, Annex, rule 17.2. [65] Roger Hood, The Death Penalty: A World-wide Perspective (2nd ed., 1996), at 8. [66] Amnesty International Website, Campaigns, Death Penalty, (last modified June 1, 2001), <http://www.web.amnesty.org/rmp/dplibrary.nsf>. [67] Amnesty International, Children and the Death Penalty, Executions Worldwide since 1990, AI Index 50/10/001111 (November 2000). [68] Crime Prevention and Criminal Justice: Capital Punishment and the Implementation of the Safeguards Guaranteeing Protection of the Rights of those Facing the Death Penalty, Report of the Secretary General, UNESCOR, Economic and Social Council, Subst. Sess., U.N. Doc. E/2000/3 (2000), para. 90. [69] Amnesty International, Too young to vote, old enough to be executed – Texas set to kill another child offender, AI Index: AMR 51/105/2001 (July 2001), p. 32. [70] Id., indicating that Yemen abolished the death penalty for 16 and 17 year old offenders in 1994 and Pakistan followed in 2000. [71] Id. See also AI-index: ACT 50/002/2001 (April 2001). [72] Thompson v. Oklahoma, 487 U.S. 815, 823-831(1988). [73] Id. [74] Id. [75] Brennan v Florida 754 So. 2d 1 (Fla. July 8, 1999) following its decision in Allen v The State 636 So. 2d 494 (Fla. 1994). [76] These 16 jurisdictions include California, Colorado, Connecticut, Illinois, Kansas, Maryland, Nebraska, New Jersey, New Mexico, New York, Ohio, Oregon, Tennessee, Washington, Montana, and the Federal Government. [77] Roach and Pinkerton v. United States, supra, para. 57. [78] Five states have chosen age seventeen as the minimum age, Georgia, New Hampshire, North Carolina, Texas, and Florida. The other eighteen death penalty jurisdictions use age sixteen as the minimum age, either through an express age prescribed by statute or by court ruling. See The Juvenile Death Penalty Today: Death sentences and executions for juvenile crimes, January 1, 1973 – December 31, 2000 by Victor L. Streib Professor of Law The Claude W. Pettit College of Law Ohio Northern University Ada, Ohio 45810-1599 (last modified February 2001), <http: // www . law.onu.edu/faculty/streib/juvdeath.htm>. See also United States v. Burns [2001] 1 S.C.R. 283, para. 93 (Can.) [79] 18 U.S.C. § 3591 (1994). [80] G.A. Res. A/RES/54/263. At present, the Protocol has 4 state parties and 76 signatories. [81] See U.S. Department of State publication, Office of the Press Secretary, The White House, Remarks by the President at Protocol Orders signing ceremony at the United Nations, New York, July 5 2000 (quoting U.S. President Clinton’s comments on Article I of the Protocol as follows: The Optional Protocol on Children in Armed Conflict sets a clear and a high standard: No one under 18 may ever be drafted by any army in any country. Its signatories will do everything feasible to keep even volunteers from taking a direct part in hostilities before they are 18. They will make it a crime for any non-governmental force to use children under 18 in war.[…] Every American citizen should support these protocols. They represent a worldwide consensus on basic values -- values every citizen of our country shares. […] I am grateful for the opportunity America has had to take a leading role in negotiating these agreements, and to be among the first nations to sign them. [..] I pledge my best efforts to see that we are also leaders in implementing them.). [82] Appropriation for the Department of Defense for Fiscal Year 1999, Section 8128(a) of the Conference Report Accompanying H.R. 4103, § B(4). [83] See Resolution of the General Assembly of OAS of June 5, 2000 AG/RES. 1709 (XXX-O/00). [84] See e.g. Inter-Parliamentary Union, Electoral Systems: A World-Wide Comparative Study, Geneva 1993 (reviewing the electoral systems of 150 of the world’s 186 sovereign states and noting that [t]he right to vote supposes that electors should have reached an age at which they are able to express an opinion on political matters, as a rule coinciding with the age of legal majority […] the norm today is eighteen years; an overwhelming majority of 109 states has opted for this minimum age limit, with most other States having a slightly higher limit (19-21 years). The lowest limit 16 years – is practiced in four countries: Brazil, Cuba, Iran and Nicaragua.). See also U.S. Const., Amend. XXVI (providing that “The right of citizens of the United States, who are 18 years of age or older, to vote shall not be denied or abridged by the United States or any State on account of age.”); Stanford v. Kentucky, 492 U.S. 361 (1989), dissenting opinions of Justices Brennan, Marshall, Blackman, and Stevens (observing that in the United States: Legislative determinations distinguishing juveniles from adults abound. These age-based classifications reveal much about how our society regards juveniles as a class, and about societal beliefs regarding adolescent levels of responsibility […] The participation of juveniles in a substantial number of activities open to adults is either barred completely or significantly restricted by legislation […] No State has lowered its voting age below 18 years [..] Nor does any State permit a person under 18 to serve on a jury […] Only four States ever permit persons below 18 to marry without parental consent […] Thirty-seven States have specific enactments requiring that a patient have attained 18 before she may validly consent to medical treatment […] Thirty-four States require parental consent before a person below 18 may drive a motor car [...] Legislation in 42 States prohibits those under 18 from purchasing pornographic materials […] Where gambling is legal, adolescents under 18 are generally not permitted to participate in it, in some or all of its forms […] In these and a host of other ways, minors are treated differently from adults in our laws, which reflects the simple truth derived from communal experience that juveniles as a class have not the level of maturation and responsibility that we presume in adults and consider desirable for full participation in the rights and duties of modern life.). [85] Article 19 of the American Convention provides: “Every minor child has the right to the measures of protection required by his condition as a minor on the part of his family, society, and the state.” [86] Article VII of the American Declaration provides: “All women, during pregnancy and the nursing period, and all children have the right to special protection, care and aid.” [87] I/A Court H.R., Villagran Morales and others (“Street Children”) Case, Judgment of November 19, 1999, Annual Report 1999, para. 197. See similarly IACHR, Argentina v. X & Y, Case Nº 10.506, Annual Report of the IACHR 1996; Eur. Court H.R., T. v. United Kingdom, Judgment of December 16, 1999; UN Standard Minimum Rules for the Administration of Juvenile Justice, supra, Rule 17. |
