Implementing the Death Penalty Crime: Dilemma between the Nationality Principle and Human Rights

Abstract

Extradition and prosecution are essential to international legal cooperation, aimed at preventing immunity from criminal responsibility, especially in cases involving the refusal to extradite nationals. The implementation of these principles is affected by the trend of abolitionist countries denying mutual legal assistance (MLA) requests related to death penalty offenses. To exercise nationality jurisdiction effectively, it is crucial for the requesting state to guarantee that death penalty sentences will not be imposed. While retentionist countries demonstrate the efficacy of the nationality principle in investigating crimes abroad, abolitionist nations view it as a human rights violation. This paper examines Article 8, paragraph (5) of the Draft Criminal Code, which outlines the exceptional nature of the death penalty within the nationality principle's application. The findings indicate that this article allows countries affected by crime to impede Indonesia's MLA requests for death penalty cases, aligning with their international obligations and human rights considerations. This research adopts a normative approach and employs pragmatic-descriptive analysis.

Keywords

• nationality principle
• death penalty
• mutual legal assistance