OF THE UNITED STATES GOVERNMENT
THE REPORT OF THE INTER-AMERICAN COMMISSION MADE ON OCTOBER 15, 2001
CASE NO. 12.185 (MICHAEL DOMINGUES)
United States regrets the Inter-American Commission’s decision
reflected in Case No. 12.185.
Report applies standards well beyond those set forth in the American
Declaration on the Rights and Duties of Man, and it assembles unrelated
– and, in places, totally irrelevant – sources to reach a conclusion
that has no basis in law. The
United States respectfully requests that the Commission publish this
response of the United States in the next Annual Report of the
Commission, if Report No. 116/01 is published.
the Commission has ignored its own rules of procedure that preclude the
consideration of a petition “if its subject matter . . . essentially
duplicates a petition pending or already examined and settled by the
Rule 33, Commission Rules of Procedure.
The issues presented by the Domingues petition are exactly the
same as those already examined and settled by the Commission in the Case
of Jay Pinkerton and James Terry Roach (“Roach”).
the evidence assembled by the Report does not support its conclusion
there exists a customary international law prohibition on the execution
of juvenile offenders. Indeed,
upon close examination, the evidence of state practice identified leads
to the opposite conclusion: no
such principle exists in international law.
Equally important (and necessarily fatal for the Commission’s
analysis) is the Report’s total failure to identify evidence of opinio
juris – a necessary element for establishing any principle of
customary international law.
This Petition Is Duplicative Of A Petition Already Examined And
Settled By The Commission.
33 of the Rules of Procedure of the Inter-American Commission on Human
Rights expressly provides that “the Commission shall not consider a
petition if its subject matter . . . essentially duplicates a petition
pending or already examined and settled by the Commission.”
The Commission previously examined the precise question presented
in the instant case and found that while there was a jus
cogens norm prohibiting the execution of children, there did not
exist “a norm of customary international law establishing 18 to be the
minimum age for imposition of the death penalty.”
the Domingues petition presents exactly the same issues as raised in the
Roach case, as reflected in the Report’s extensive treatment of
the Roach opinion. Accordingly,
this petition should be dismissed under Rule 33.
Given the failure to follow Commission rules, it should withdraw
Customary International Law Does Not Prohibit The Execution Of
Report assembles a hodge-podge of treaties, UN resolutions, and
incomplete discussion of US law, which –
without any analysis – it concludes constitutes “overwhelming
evidence” that displays “consistency and generality” of State
practice. As if waving a
magic wand, the Report even goes so far as to declare a jus
cogens norm of international law.
It is the position of the United States that neither the state
practice identified by, nor the legal standards cited by the Report are
sufficient to establish either a customary or jus
cogens prohibition of the execution of juvenile offenders.
The Commission’s Reliance Upon Treaties As Evidence Of State
Practice Is Misplaced.
its Report the Commission concludes that the prohibition of the death
penalty with respect to individuals under 18 years of age in the
American Convention on Human Rights (Article 4.5), in the International
Covenant on Civil and Political Rights (Article 6.5), the Convention on
the Rights of the Child (Article 37), and in the Fourth Geneva
Convention (Article 68) demonstrates a pattern of practice, which
establishes a jus cogens norm.
See Michael Domingues, Report No. 116/01, Case No.
12.285 (October 15, 2001)(hereinafter “CRP”) ¶¶ 55-68.
These instruments create no such pattern, nor are they sufficient
to establish the existence of a jus
cogens norm of international law.
accurately stated by a member of the Commission in Roach, “the
fact that prohibition of the death penalty appears in these treaties . .
. does not mean that these treaties have declared an existing custom or
have crystallized or reflected a custom.”
Indeed, the negotiating histories of each of these conventions
reflects that the inclusion of the provision concerning the juvenile
death penalty was neither based upon custom, nor even by consensus:
explained by Dr. Munroy in Roach, “the American Declaration of
the Rights and Duties of Man cannot be interpreted in light of the
provisions of the American Convention on Human Rights, the International
Covenant on Civil and Political Rights and other treaties on human
rights because these treaties are subsequent to the aforecited
Declaration and are binding only on States parties to them.”
In any event, it is common knowledge that
many States ratify treaties, but fail to implement the obligations the
have assumed thereunder. Indeed,
The UN Secretary General has reported that there appear to be at least
14 countries which have ratified the CRC, but have not amended their
laws to exclude the imposition of the death penalty on persons who
committed the capital offense when under the age of 18.
Hence, reference to treaties that establish prohibitions on the
use of the death penalty is not sufficient to establish state practice
sufficient for customary international law, particularly where, as is
the case here, those provisions were not adopted by consensus.
UN Organs Have Recognized There Is No Customary International Law
Prohibition On The Execution Of Juvenile Offenders.
Report cites a 1998 UN Commission on Human Rights resolution for the
proposition that the United Nations considers the execution of juvenile
offenders to be contrary to customary international law.
The text cited, however, was adopted by a vote of
26(yes)-13(no)-12(abstentions); and fifty-one States, including
non-Commission members, signed a statement disassociating themselves
from that decision. See
CRP ¶¶ 69-71. A similar
text was adopted at the 2001 session of the Commission, by a vote of
27-18-7, with an even greater number of States – sixty-one –
dissociating themselves from the resolution.
its 2001 session, the UN Sub-Commission on the Promotion and Protection
of Human Rights also recommended a draft decision to the Commission that
would have “confirm[ed]” that international law “clearly
establishes that the imposition of the death penalty on persons aged
under 18 at the time of the offense is in contravention of customary
The Commission, however, did not adopt the recommended decision.
Instead, in two other resolutions adopted by consensus –
Extrajudicial, Summary or Arbitrary Executions and Rights of the Child
– the Commission called
upon all States “in which the death penalty has not been abolished, to
comply with their obligations as assumed under relevant provisions of
international human rights instruments, including in particular articles
37 and 40 of the Convention on the Rights of the Child (CRC) and
articles 6 and 14 of the International Covenant on Civil and Political
contrary to claims made in the Report, recent decisions of the UN
Commission on Human Rights actually show that there is no international
agreement on whether customary international law prohibits the execution
of juvenile offenders.
In Focussing On The Domestic Practice of States, The Report
Ignores A Necessary Element Of Customary International Law – Opinio
assembling its claim that customary international law prohibits the
execution of juvenile offenders, the Report asserts that the principle
is reflected in the domestic practice of States.
See ¶¶ CRP 72-76. Assuming
that State practice is consistent (which it is not), however, is not
enough to establish customary international law – opinio
juris is also necessary. That
is, these States must be engaging in the practice out of a sense of
legal obligation to do so. This
necessary element has not been established by the Report; indeed, it is
is well established that that customary international law is
“international law result[ing] from a general and consistent practice
of states followed by them from a sense of legal obligation” or opinio
For opinio juris to
exist, there must be a “sense of legal obligation, as opposed to
motives of courtesy, fairness, or morality . . . and the practice of
states recognizes a distinction between obligation and usage.”
Here, the Report makes no attempt to establish the basis for the
practice it alleges States are engaged.
Without some analysis of the context in which States discontinued
the process of executing juvenile offenders, it is impossible to assert
it was done out of a sense of legal obligation and not for motives of
courtesy, fairness or morality.
United States Practice Does Not “Demonstrate a Trend Towards
Lack of Acceptance of the Application of the Death Penalty to Those
Under the Age of 18 Years.”
Report asserts, on the basis of the United States Supreme Court decision
in Thompson v. Oklahoma, 487 U.S. 815 (1988), that there is a
trend towards lack of acceptance of the application of the death penalty
to those offenders under the age of 18.
However, the Report fails to acknowledge that the Supreme Court
in Stanford v. Kentucky, 492 U.S. 361 (1989), subsequently held
that imposition of capital punishment on an individual for a crime
committed at the age of 16 or 17 did not violate evolving standards of
decency and, thus, did not constitute cruel and unusual punishment under
the Eighth Amendment.
Report also references the adoption in 1999, by Florida and Montana, of
higher standards concerning the application of the death penalty which
allegedly “complement the
international movement to the establishment of 18 as the minimum age for
the imposition of capital punishment”;
however, neither action was based upon a rule of customary law
prohibiting the death penalty with respect to offenders under 18 years
of age. The Florida Supreme
Court held in Brennen v. Florida that the imposition of the death
penalty upon a juvenile under the age of 17 was cruel or unusual
punishment under the Florida state constitution, due to the fact that
“since 1972, more than a quarter of a century ago, no individual under
the age of seventeen at the time of the crime has been executed in
Florida.” No discussion
of customary law can be found in the negotiating history of the Montana
Legislature, or in its consideration and approval of changing the
minimum age limit for the death penalty.
See Montana Legislature
Committee Minutes, 1999 Session, 56th Legislature, Regular
Session, Senate Judiciary Committee (Mar. 23, 1999)
and House Judiciary Committee
(Jan. 29, 1999).
addition, the Report claims that the different minimum age limits for
the death penalty in different U.S. states demonstrate “a lack of
acceptance of the application of the death penalty to those offenders
under the age of 18 years.” Under
a federal system, however, states are expected to have different laws,
because “[e]ach has the power, inherent in any sovereign,
independently to determine what shall be an offense against its
authority and to punish such offenses.”
United States v. Wheeler, 435 U.S. 313, 320 (1978)(quoting
United States v. Lanza, 260 U.S. 377, 382 (1922).
Further, the Commission finds “it significant in this respect
that the U.S. federal government itself has considered 18 years to be
the minimum age for the purpose of federal capital crimes,” see
CRP ¶ 79, however, that reliance is entirely misplaced.
As the Supreme Court found in Stanford v. Kentucky, 492
U.S. 361, 372, “the statute in question does not embody a judgement by
the federal legislature that no murder is heinous enough to warrant the
execution of a youthful offender, but merely that the narrow class of
offense it defines is not.”
the Report neglects to note that the U.S. Uniform Code of Military
Justice permits the use of capital punishment for crimes committed by
members of the military under the age of 18, for the crimes specified
Accordingly, there is no “trend” in the
United States toward a prohibition on the execution of juvenile
offenders. At a minimum,
practice is uneven, and there is no evidence that states that have
chosen to end the practice have done so out of a sense of legal
obligation as required to establish a principle of customary
So-called “Related Developments” Are Neither Related Nor
Relevant To Attempts To Establish A Prohibition On The Execution Of
Juvenile Offenders Under International Law.
Report cites the Optional Protocol to the Convention on the Rights of
the Child Concerning Children in Armed Conflict as evidence “of the
developments in other fields of international law addressing the age of
majority for the imposition of serious and potentially fatal obligations
and responsibilities.” See
CRP ¶¶ 80-83. The
Commission, however, misconstrues the Protocol.
Protocol (Article 3) obligates States Parties to deposit a binding
declaration upon ratification affirming their agreement to raise the
minimum age for voluntary recruitment into their national armed forces
from the current international standard of 15 years.
Hence, the Protocol expressly authorizes the voluntary
recruitment of individuals aged 16 or 17.
The Protocol further requires (Article 1) that States Parties
take “all feasible measures” to ensure that members of their armed
forces under the age of 18 do not take a “direct part in
standard recognizes that, in exceptional cases, it will not be
“feasible” for a commander to withhold or remove a soldier under the
age of 18 from taking a direct part in hostilities.
contrary to the Commission’s assumption, related developments
establish that the execution of individuals aged 16 or 17 at the time of
the offence in exceptional circumstances is not contrary to accepted
international treaties. The
United Kingdom has adopted a similar understanding and states that:
1 of the Optional Protocol would not exclude the deployment of members
of its armed forces under the age of 18 to take a direct part in
hostilities where: -
there is a genuine military need to deploy their unit or ship to an area
in which hostilities are taking place; and
by reason of the nature and urgency of the situation:-
it is not practicable to withdraw such persons before deployment; or
to do so would undermine the operational effectiveness of their ship or
unit, and thereby put at risk the successful completion of the military
mission and/or the safety of other personnel."
Treaties Deposited with the Secretary General, Vol. I, p. 299, Optional
Protocol to the Convention on the Rights of the Child Concerning
Children in Armed Conflict, Declaration of the United Kingdom of Great
Britain and Northern Ireland (Status as at 31 Dec. 2000).
In any event, the Optional Protocol
addresses the use of children in armed conflict, not the
execution of juvenile offenders. The
death penalty is a criminal justice issue wholly unrelated to the
Optional Protocol. Accordingly,
the Optional Protocol has absolutely no probative value to attempts to
establish a norm of international law prohibiting the execution of
The United States Is Not Bound By Any International Norm
Prohibiting The Execution Of Juvenile Offenders.
The United States Has Persistently Asserted Its Right to Execute
Offenders Aged 16 and 17 at the Time of the Offense.
Report asserts that “the United States, itself rather than
persistently objecting to the standard, in several significant respects
recognized the propriety of this norm, for example by proscribing the
age of 18 as the federal standard for the application of capital
punishment and by ratifying the Fourth Geneva Convention without
reservation,” see CRP ¶ 85, however, the Commission reached
the opposite conclusion in Roach, on exactly the same set
of facts. See
Resolution 3/87 ¶ 54. As
the Commission pointed out in Roach, “[s]ince the United States
has protested the norm, it would not be applicable to the United States
should it be held to exist. For
a norm of customary international law to be binding on a State which has
protested the norm, it must have acquired the status of jus
Report identifies no statement or action of the United States since the Roach
decision that would belie its previous persistent objection to the
application of such a norm to the United States.
Indeed, the United States has consistently asserted its right to
execute juvenile offenders – by making reservations to treaties, by
filing briefs before national and international tribunals, and by making
There is simply no basis for a finding to the contrary.
even if a norm of customary international law establishing 18 to be the
minimum age for imposition of the death penalty has evolved since Roach,
which it has not, the United States is not bound to such a rule, given
its status as a persistent objector, a fact recognized by this very
Commission in Roach.
The Report Fails To Establish A Jus Cogens Norm Of International
Roach, the Commission did not find evidence of customary
international law that would prohibit the imposition of the death
penalty for 16-18 year old offenders. To find that there now exists a jus cogens norm is both inconsistent and implausible.
Commission on Human Rights, Report 116/01, Case 12.285, Michael
Domingues, ¶ 41 (October 15, 2001);
In Re Roach, Case 9647, ¶ 56 (Inter.-Am.C.H.R. 1987).
only argument presented by the Report in favor of the finding of a jus
cogens principle that prohibits the execution of juvenile offenders
is the assertion that the execution of Mr. Domingues will “shock the
conscience of humankind.” This
assertion is specious at best.
October 22, 1993, sixteen-year-old Michael Domingues brutally murdered
Arjin Chanel Pechpo and her four-year-old son, Jonathan Smith.
After the victims arrived home, where Domingues was waiting for
them, Domingues threatened Pechpo with a gun then tied her up with a
cord which he used to strangle her.
He ordered her little boy to take off his pants and get into the
bathtub with his mother’s dead body.
When an attempt at electrocuting the four-year-old failed,
Domingues stabbed Jonathan with a knife multiple times, killing him.
After the murders, Domingues then bragged about killing Pechpo
for her car, gave items he had stolen from Pechpo as gifts to friends,
and used the victim’s credit card.
Domingues v. Nevada, 112
Nev. 683, 917 P.2d 1364,112 Nev. 683; 917 P.2d 1364 (1996).
The acts of Mr. Domingues should shock the consciousness of
humankind, not the punishment those acts have earned him.
the foregoing reasons, the United States considers Report No. 116/01 to
mark a regrettable departure from the Commission’s ordinary scrupulous
adherence to the norms and procedure for the determination of individual
cases. The Commission
should withdraw its Report in the instant case and, if it deems
necessary, hear further argument.
On October 18, 2001, the United States filed a Response to the
Petition in this matter that was not considered by the Commission in
the preparation of its Report.
The United States incorporates by reference herein that
Response in its entirety and respectfully requests that the
Commission consider the October 18 Response in connection with this
Reply. For ease of
reference, a copy of the October 18 Response is attached as Appendix
A to this Reply.
Case of Jay Pinkerton and James Terry Roach,
Resolution No. 3/87, Case 9647, Inter-Am. Cm. H.R. 1986-87, 147
OES/Ser.L/VII/71, doc. 9, rev. 1 (1987) ¶ 60.
Presently, there are several petitions pending before the
Commission that have been filed against the United States raising
the same issue as addressed in Roach.
The United States has not filed – nor does it intend to
file – responses in any of those cases, as provided under Rule 33.
Case of Jay Pinkerton and James Terry Roach, Case No.
9647 (Inter.-Am.C.H.R. 1987)(Dissenting Opinion, Dr. Marco Gerardo
Monroy Cabra § 3).
Digest of U.S. Practice in International Law, Vol. I,
United States Memorandum to Edmundo Vargas Carreno, Executive
Secretary of the Inter-American Commission on Human Rights (July 15,
Commission on Human Rights, 12th Session (1957),
A/3764, § 120 (o) [A/C.3/SR.820, § 25];
See Bossuyt, M.J.,
Guide to the “Travaux
Preparatoires” of the International Covenant on Civil and
Political Rights, p. 143 (Martinus Nijhoff Publishers 1987).
See Commission on
Human Rights, Report of the Working Group on a Draft Convention on
the Rights of the Child, 45th Sess., 2 Mar. 1989, at 101,
U.N. Doc. E/CN.4/1989/48.
Case of Jay Pinkerton and James Terry Roach, Case No.
9647 (Inter.-Am.C.H.R. 1987)(Dissenting Opinion, Dr. Marco Gerardo
Monroy Cabra § 6) (emphasis added).
Sixth quinqennial report of the Secretary General on capital
punishment, supra note 13,
at 40. A number of
countries mentioned in the report have taken general reservations to
the CRC, based upon their State constitutions or Islamic Law.
Declarations and Objections Relating to the CRC, UN Doc.
The text of the draft decision is reported in UN Doc.
E/CN.4/2001/2 at 14.
CHR Res. 2001/45 (Apr. 23)(Extrajudicial, summary or arbitrary
executions); CHR Res.
2001/75 (Apr. 25)(Rights of the Child).
For the Convention see
G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49 at
167, U.N. Doc. A/44/49, 28 I.L.M. 1448, 1470.
of Public International Law (5th), 1998 at 7;
Restatement of the Foreign Relations Law of the United States
(Third), § 102(2).
Furthermore, the existence of a treaty obligation to engage
(or not to engage) in a practice is not sufficient to
establish opinio juris.
Treaty obligations are separate and distinct from obligations
under customary international law, and cannot be used to prove
The administration provided the following understanding in
transmitting the Protocol to the Senate for its advice and consent
With respect to Article
1, the United States understands that the term “feasible
measures” are those measures which are practical or practically
possible taking into account all circumstances ruling at the time,
including humanitarian and military considerations. * * *The phrase “direct participation in hostilities”
does not mean indirect participation in hostilities, such as
gathering and transmitting military information, transporting
weapons, munitions and other supplies or forward deployment.
Perhaps the most telling example of the United States’
persistent objection to the application of such a norm to the U.S.
was its reservation to ICCPR article 6(5) – which was made after
the Roach decision. Through
its instrument of ratification, the U.S. reserved the right to
impose capital punishment for crimes committed by persons less than
18 years of age, subject to constitutional restraints.
See 138 Cong. Rec. 8070-71 (1992).
Out of the 149 states that are parties to the ICCPR, only 11
have objected to the United States’ reservation to Article 6(5),
and this does not equate “condemnation within the international
community.” See CRP ¶ 62 and fn. 52.
Significantly, not one of these States noted that it does not
recognize the ICCPR as being in force between itself and the United
UNITED NATIONS MULTILATERAL TREATIES DEPOSITED WITH THE
AS AT 31 DECEMBER 2000, UN Doc. ST/LEG/SER.E/19 (2001);
Vienna Convention on the Law of Treaties, opened for
signature Amy 23, 1969, Art. 20(4)(b), 1155 UNTS 332, 333 (objection
by a contracting State to another State reservation to part of a
treaty does not prevent the treaty entering into force unless such
intention “is definitely expressed by the objecting State.”
As noted by the Report, the United States has ratified the
Fourth Geneva Convention, which prohibits imposition of the death
penalty against a national of another country held during time of
war who was under 18 when he committed the offense. See Geneva
Convention Relative to the Protection of Civilian Persons in Time of
War, Aug. 12, 1949, art. 68, 6 U.S.T. 3516, 3560 75 U.N.T.S. 286,
330. As the Commission
recognized in Roach, however, this minor exception to the
United States’ policy of opposing treaty provisions barring the
execution of persons who committed their crimes when they were 16 or
17, is limited only to foreign nationals held during time of war and
does not vitiate the country’s persistent-objector status.
There is simply no support for the proposition that this alleged
prohibition against the execution of 16- or 17-year-old offenders
has similar force to prohibitions such as those against piracy,
slavery, and genocide. Imposition of capital punishment upon offenders, who
committed offenses at 16 or 17 years of age, clearly does not fall
within this category of recognized and accepted non-derogable, jus
cogens norms. See Inter.-Am.C.H.R. Report 116/01, Case 12.285, ¶ 49 and FN 43 (citing
The Restatement of Foreign Relations Law of the United States,
§ 702). Moreover, as
Dr. Monroy stated Roach:
“There is no proof to
the effect that all states worldwide feel bound by an obligatory
rule of customary law prohibiting the death penalty with respect to
juveniles under 18 years of age.”
Roach, § 3 (dissenting opinion).