Report No. 262

(iii) The Case of Terrorism

4.3.21 An important question faced by this Commission was whether the death penalty should be retained in the context of terrorism-related crimes, even if it abolished for all other offences. One of the major reasons for this proposition is that the death penalty acts as an important tool for maintaining the security of citizens and the integrity of the nation, by deterring similar future crimes. Since terrorist crimes are very different from ordinary crimes in terms of the motives applicable, deterrence assumptions need a re-look to ascertain whether it is desirous to perhaps retain the death penalty for terrorism related crimes.

4.3.22 A view is taken by many that the death penalty is unlikely to deter terrorists, since many are on suicide missions (they are prepared to give up their life for their 'cause'),297 there are other reasons why the death penalty in fact might increase terrorist attacks.

The death penalty is often solicited by terrorists, since upon execution, their political aims immediately stand vindicated by the theatrics associated with an execution.298 They not only get public attention, but often even gain the support of organisations and nations which oppose the death penalty. The Indonesian Bali Bomber's reaction to news of his conviction and execution was beaming and with a "thumbs-up" as if he had just won an award.299

297 Thomas Michael McDonnell, The Death Penalty-An Obstacle to the "War against Terrorism?, 37 Vand. J. Transnat'L L. 353, 390 (2004). See also President George W. Bush's 2002 National Security Strategy, released roughly one year after 9/11, stating that "Traditional concepts of deterrence will not work against a terrorist enemy whose avowed tactics are wanton destruction and the targeting of innocents; whose so-called soldiers seek martyrdom in death and whose most potent protection is statelessness.

Deterrence-the promise of massive retaliation against nations-means nothing against shadowy terrorist networks with no nation or citizens to defend"- Commencement Address at the United States Military Academy in West Point, New York, 38 Weekly Comp. Pres. Doc. 944, 946 (June 1, 2002); Bush's 2006 address also addressed the same point "the terrorist enemies we face today hide in caves and shadows and emerge to attack free nations from within.

The terrorists have no borders to protect or capital to defend. They cannot be deterred-but they will be defeated"- See Commencement Address at the United States Military Academy in West Point, New York, 42 Weekly Comp. Pres. Doc. 1037, 1039 (May 27, 2006).

298 Thomas Michael McDonnell, The Death Penalty-An Obstacle to the "War against Terrorism?, 37 Vand. J. Transnat'L L. 353 2004, 401.

299 Jane Perlez, Court Decides to Sentence Bali Bomber to Death, N.Y. Times, Aug. 8, 2003.

4.3.23 Jessica Stern, a pre-eminent expert on the issue of terrorism opines:

One can argue about the effectiveness of the death penalty generally. But when it comes to terrorism, national security concerns should be paramount. The execution of terrorists, especially minor operatives, has effects that go beyond retribution or justice. The executions play right into the hands of our adversaries. We turn criminals into martyrs, invite retaliatory strikes and enhance the public relations and fund-raising strategies of our enemies.300

300 Jessica Stern, Execute Terrorists at Our Own Risk, NY Times, 28th February, 2001.

4.3.24 Similarly, while commenting on the specific case of the Boston marathon Bomber, Dzhokhar Tsarnaev, Alan Dershowitz writes:

Seeking the death penalty against Tsarnaev, and imposing it if he were to be convicted, would turn him into a martyr. His face would appear on recruiting posters for suicide bombers. The countdown toward his execution might well incite other acts of terrorism. Those seeking paradise through martyrdom would see him as a role model...301

301 Alan Dershowitz, Dzhokhar Tsarnaev should not face the death penalty, even for a capital crime, The Guardian, 24th April 2013.

4.3.25 It is useful also to refer to Jeremy Bentham, the pioneer of the deterrence theory. In the context of "rebels" or in cases of "rebellion" (which can be roughly equated to anti-nationals or terrorists), Bentham said that executing them would not deter other potential rebels, but in fact make the executed person a martyr, whose death would inspire, and not deter potential followers.302

302 HA Bedau, Bentham's Utilitarian Critique of the Death Penalty, 74 Journal of Criminal Law and Criminology 1033, 1046 (1983).

4.3.26 Although there is no valid penological justification for treating terrorism differently from other crimes, concern is often raised that abolition of death penalty for terrorism related offences will affect national security. There is a sharp division among law-makers due to this concern. Given these concerns raised by the law makers, the Commission does not see any reason to wait any longer to take the first step towards abolition of the death penalty for all offences other than terrorism related offences.