1

No. 01-_______

CAPITAL CASE

In the
Supreme Court of the United States

ALEXANDER E. WILLIAMS, IV,

Petitioner
vs.

FREDERICK J. HEAD, Warden,

Respondent.

On Petition for a Writ of Certiorari

to the Supreme Court of Georgia

MOTION FOR LEAVE TO FILE AMICUS

CURIAE BRIEF AND
BRIEF OF THE EUROPEAN UNION
AS AMICUS CURIAE IN SUPPORT OF
PETITIONER

WILLIAM J. MERTENS
Asbill Moffitt & Boss Chtd.
1615 New Hampshire Avenue,
N.W.
Suite 200
Washington, D.C. 20009-2520
(202) 234-9000, ext. 120

February 2002 Counsel of Record for

Amicus Curiae
2

CAPITAL CASE

QUESTION PRESENTED FOR REVIEW

Whether there is an international

consensus against execution of a person who was
at the time of his offense a child under the age of
18.
3

MOTION FOR LEAVE TO FILE

AMICUS CURIAE BRIEF
4

Pursuant to Supreme Court Rule 37.2(b),

the European Union respectfully moves for leave
to submit the accompanying amicus curiae brief
in support of petitioner Alexander E. Williams, IV.
Consent to the filing of this brief was granted by
counsel for petitioner but was refused by counsel
for respondent.
5

The European Union (EU) considers the

principles of liberty, democracy, respect for
human rights and fundamental freedoms, and the
rule of law, to be of vital importance both
nationally and in the international community.
These principles are common to its 15 member
states: Austria, Belgium, Denmark, Finland,
France, Germany, Greece, Ireland, Italy,
Luxembourg, the Netherlands, Portugal, Spain,
Sweden, and the United Kingdom. The EU and its
member states, as members of the international
community, have a strong interest in providing
relevant information on international human
rights norms in a case in which those norms may
be relevant.
6

The decision of the Supreme Court of

Georgia implicates a specific issue of concern to
the EU. That decision allowed the execution of a
person who, at the time of his offense, was under
the age of 18. There is a widespread
international consensus against the execution of
persons who were under 18 at the time of their
offenses. The EU submits this brief to explain
that point. It believes that its participation will
assist the Court in its decision on the petition for
certiorari.
7

For the reasons stated above, the EU

respectfully requests that the Court grant its
motion for leave to file this brief.
8

Respectfully submitted,

William J. Mertens
Counsel of Record
Asbill Moffitt & Boss Chtd.
1615 New Hampshire Ave., NW
Suite 200
Washington, DC 20009-2520
(202) 234-9000

Counsel for Amicus Curiae

February 2002
9

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ………………

i

MOTION TO FILE AMICUS CURIAE BRIEF …………. ii

TABLE OF AUTHORITIES ……………………………... v

CONSTITUTIONAL PROVISIONS AND TREATIES

INVOLVED ………………………………………………. x

STATEMENT OF INTEREST OF AMICUS CURIAE …...

1

STATEMENT OF THE CASE …………………………….

1

SUMMARY OF ARGUMENT ……………………………..

2

REASONS FOR GRANTING CERTIORARI …………….

2

A. Execution of Juveniles Is Contrary to the

Practice of Most States
………………………………………… 4

B. Execution of Juveniles Is Contrary to

International Law.
……………………………………………………… 7

C. Execution of Juveniles Is Contrary to the

Positions of States in International Bodies.
……………………… 12
10

CONCLUSION …………………………………………….
19
11

TABLE OF AUTHORITIES

Cases

MOTION FOR LEAVE TO FILE

AMICUS CURIAE BRIEF.......................................................3

Treaties

MOTION FOR LEAVE TO FILE

AMICUS CURIAE BRIEF.......................................................3

Miscellaneous

MOTION FOR LEAVE TO FILE

AMICUS CURIAE BRIEF.......................................................3
12

CONSTITUTIONAL PROVISIONS
AND TREATIES INVOLVED

U. S. Constitution, Amendment 8:

Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and
unusual punishments inflicted.

U. S. Constitution, Amendment 14, § 1:

. . . [N]or shall any State deprive any

person of life, liberty, or property, without
due process of law . . . .

International Covenant on Civil and Political

Rights, Art. 6(5):

Sentence of death shall not be imposed for

crimes committed by persons below
eighteen years of age and shall not be
carried out against pregnant women.

American Convention on Human Rights, Ch. II,

Art. 4(5):

Capital punishment shall not be imposed

upon persons who, at the time the crime
was committed, were under 18 years of age
....

United Nations Convention on the Rights of the

Child, Art. 37(a):

Neither capital punishment nor life

imprisonment without possibility of release
13

shall be imposed for offences committed by

persons below eighteen years of age . . . .

Fourth Geneva Convention, Art. 68.4:

[T]he death penalty may not be

pronounced against a protected person
who was under eighteen of age at the time
of the offence.

Vienna Convention on the Law of Treaties, Part II,

Sect. 1, Art. 18, and Sect. 2, Art. 19:

SECTION 1. CONCLUSION OF TREATIES

Article 18

Obligation not to defeat the object and

purpose of a treaty prior to its entry into
force

A State is obliged to refrain from acts which

would defeat the object and purpose of a
treaty when:

a. It has signed the treaty or has

exchanged instruments constituting the
treaty subject to ratification, acceptance or
approval, until it shall have made its
intention clear not to become a party to the
treaty; or

b. It has expressed its consent to be bound

by the treaty, pending the entry into force
of the treaty and provided that such entry
into force is not unduly delayed.
14

SECTION 2. RESERVATIONS

Article 19

Formulation of reservations
15

A State may, when signing, ratifying,

accepting, approving or acceding to a
treaty, formulate a reservation unless:

a. The reservation is prohibited by the

treaty;

b. The treaty provides that only specified

reservations, which do not include the
reservation in question, may be made; or

c. In cases not falling under sub-paragraphs

(a) and (b), the reservation is incompatible
with the object and purpose of the treaty.
16

STATEMENT OF INTEREST OF AMICUS

CURIAE 1

The European Union (EU) considers the

principles of liberty, democracy, respect for
human rights and fundamental freedoms, and the
rule of law, to be of vital importance both
nationally and in the international community.
These principles are common to its 15 member
states: Austria, Belgium, Denmark, Finland,
France, Germany, Greece, Ireland, Italy,
Luxembourg, the Netherlands, Portugal, Spain,
Sweden, and the United Kingdom. The EU and its
member states, as members of the international
community, have a strong interest in providing
relevant information on international human
rights norms in a case in which those norms may
be relevant.

STATEMENT OF THE CASE

The EU has no independent knowledge of

the circumstances of this case but from prior
1In accordance with Supreme Court Rule 37.6,
amicus curiae represents that no party other than
amicus and counsel for amicus authored this brief
in whole or in part, and no person or entity, other
than amicus and counsel, have made a monetary
contribution to the preparation or submission of
this brief. The petitioner has consented to the
filing of this brief, and his letter of consent has
been filed with the Clerk of the Court, pursuant to
Supreme Court Rule 37.3(a).
17

court filings understands that Mr. Alexander E.

Williams, IV, is on death row in Georgia after
being found guilty of committing murder when he
was only 17 years old. It also understands that
Mr.
18

Williams’s age at the time of the murder is

uncontested, and consider that his execution
would violate international norms.

SUMMARY OF ARGUMENT

There exists a broad consensus among the

states of the world against the execution of
persons who were under the age of 18 at the
time of their offenses. This consensus is
evidenced by the practices of the overwhelming
majority of nations; provisions of international law
including treaties to which the United States is a
party; and the positions of states before
international bodies. The EU respectfully submits
this brief so that the Court may take the
existence of this consensus into account in its
consideration of the petition in this case.

REASONS FOR GRANTING CERTIORARI

The EU submits this brief in support of the

petition for certiorari in view of the existence of a
widespread international consensus against the
execution of a person who was under 18 at the
time of his offense.

In assessing whether a particular

punishment violates the prohibition against cruel
and unusual punishment in the Eighth
Amendment to the United States Constitution,
this Court has said that it is guided by the
“evolving standards of decency that mark the
progress of a maturing society.” Trop v. Dulles,
356 U.S. 86, 101 (1958) (plurality opinion). As
evidence of those standards, the Court has
19

consulted a number of sources beginning with the

current practices of the American people.
Ultimately, it considers the proportionality of the
punishment to the offense. At least when, as a
threshold
20

matter, American society seems generally set

against a certain punishment, the Court has
examined “the views of the international
community in determining whether a punishment
is cruel and unusual.” Thompson v. Oklahoma,
487 U.S. 815, 830 n.31 (1988) (plurality opinion)
(citing Trop v. Dulles, 356 U.S. at 102 & n.35;
Coker v. Georgia, 433 U.S. 584, 596 n.10 (1977);
Enmund v. Florida, 458 U.S. 782, 796-797 n.22
(1982)).

The EU understands that Mr. Williams’s

petition for certiorari seeks to demonstrate that
in the 12 years since this Court’s decision in
Stanford v. Kentucky, 492 U.S. 361 (1989),
American society has manifested a consensus
against the execution of juveniles that the Court
could not discern when it allowed the execution
of 16- and 17-year-olds in that case.

The EU recognizes that in Stanford, this

Court stated as follows regarding the relevance of
international norms to analysis under the Eighth
Amendment:

We emphasize that it is American

conceptions of decency that are
dispositive . . . . While the practices
of other nations, particularly other
democracies, can be relevant to
determining whether a practice
uniform among our people is not
merely an historical accident, but
rather so “implicit in the concept of
ordered liberty” that it occupies a
21

place not merely in our mores, but,

text permitting, in our Constitution as
well, they cannot serve to establish
the first Eighth Amendment
prerequisite, that the practice is
accepted among our people.
22

Id. at 370 n.1 (internal quotations and

citations omitted; emphasis in original).

The EU understands that Mr. Williams’s

petition for certiorari attempts to demonstrate
what this passage identifies as “the first Eighth
Amendment prerequisite.” That is, the petition
seeks to show that in the 12 years since the
Court’s decision in Stanford, the practice of
sparing juveniles from the death penalty has
been widely accepted among the American
people. The EU understands that in this situation,
international norms become relevant, and the EU
submits that the present American practice is no
accident but is in harmony with a near-
unanimous international norm.

Accordingly, the EU respectfully suggests

that the international consensus mentioned
above further justifies reexamination of the
application of the Cruel and Unusual Punishment
Clause to this situation.

A. Execution of Juveniles Is
Contrary to the Practice of
Most States.

Today, the overwhelming majority of

nations, even those that consider the death
penalty appropriate for other cases, prohibit the
use of capital punishment against juvenile
offenders, that is, those individuals who were
under 18 years of age at the time of the offence.
In fact, the last 10 years have seen a marked
reduction in the number of nations that allow
23

such executions, with only a handful now

employing capital punishment for juvenile
offenders.
24

Since 1990, only seven nations reportedly

have executed juvenile offenders: Iran (6), Saudi
Arabia (1), Nigeria (1), the Democratic Republic of
Congo (DRC) (1), Yemen (1), Pakistan (2) and the
United States (14).2

In the last three years, only three of those

are known to have executed juvenile offenders:
the DRC, Iran and the United States. The other
four either changed their laws to remove
themselves from the group of nations still
tolerating the execution of juveniles, or have
denied their membership in the group to begin
with. Moreover, the DRC more recently has been
swayed by international opinion not to carry out
death sentences against juveniles. In 1994,
Yemen removed itself from the small group of
nations still permitting executions of juveniles by
enacting a new Penal Code that increased the
minimum age for the death penalty to 18 years. 3

Since then there have been no reported

executions of juveniles in Yemen. In 2000, the
Nigerian government asserted to the UN Sub-
Commission that earlier reports were wrong and

2Amnesty International, Children and the Death

Penalty, Executions Worldwide Since 1990,
50/010/2000.
3

Amnesty International, Yemen Ratification

Without Implementation: the State of Human
Rights in Yemen, AI Index, MDE 31/01/97, at 34,
37 (March 1997).
25

that the 1997 execution was not of a juvenile. 4

Saudi Arabia also emphatically

4UN Sub-Commission, Summary Record of the 6th

Meeting, 52nd Sess., August 4, 2000,
E/CN.4/Sub.2/2000/SR.6 para. 39 (2000).
(continued…)
26

denies the 1992 execution of a juvenile

offender. In July 2000, Pakistan moved to
5

outlaw juvenile executions under the

Juvenile Justice System Ordinance that was
signed on 1 July 2000, and in December
1999, the DRC called for a moratorium on
all executions. Nonetheless, in January
2000, a 14 year-old child soldier was
executed in the DRC, but according to the
6

OMCT-World Organization Against Torture,

four juvenile offenders who subsequently
were sentenced to death in DRC military
courts were granted stays. The sentences
of all four then were commuted following
appeals from the international community. 7

Thus, the U.S. and Iran seem to stand alone

among all the nations of the world as the
states that at the present time actively

54 (…continued)
(

UN Commission On Human Rights,

Summary Record of the 53rd meeting, 56th Sess.,
April 17, 2000, E/CN.4/2000/SR.53, paras. 88 and
92 (2000).

6Amnesty International reports that on January

15, 2000, the Democratic Republic of Congo
executed a 14 year old juvenile after his trial for
murder. Amnesty International: Democratic
Republic of Congo: Killing Human Decency, AI
Index: AFR 62/07/00, 31 May 2000, at 12.

7WorldOrganization Against Torture, Case COD

270401.1.CC, 31 (May 2001)
27

carry out death sentences for offenses

committed by juveniles.
28

B. Execution of Juveniles Is Contrary

to International Law.

Ratified international instruments reflect

current international norms; norms that the EU
considers do not countenance the execution of
juvenile offenders. A significant number of
treaties, including a number signed by the United
States, prohibit such executions.

The American Convention on Human

Rights, adopted in 1970, specifically prohibits the
death penalty for children. It provides: “Capital
punishment shall not be imposed upon persons
who, at the time the crime was committed, were
under 18 years of age. . . .” The U.S. signed the
8

agreement without reservation. The ratification

process has not been completed by the Senate,
but, as stated in Article 18 of the Vienna
Convention on the Law of Treaties, a nation is
obligated not to defeat the “object and purpose
of the treaty” prior to its entry into force. 9

Although the United States is not a party to the

Vienna Convention, the U. S. Department of State
has

8American Convention on Human Rights, Ch. II,

art. 4, § 5, OASTS No. 36; OAS OFF Rec. OEA/SER
L/V/IL.23 Doc. 21 Rev. 6 (1979).

9UN Doc A/Conf.39/27 at 289 (1969), 1155

U.N.T.S. 331, reprinted in 8 I.L.M. 679 (1969).
29

recognized it as the authoritative guide to current

treaty law and procedure. 10

Article 37(a) of the United Nations

Convention on the Rights of the Child (CRC) also
prohibits the execution of juvenile offenders. It
provides that “[n]either capital punishment nor
life imprisonment without possibility of release
shall be imposed for offences committed by
persons below eighteen years of age . . . .” Some
191 nations have signed and ratified the CRC.
Indeed, the Report of the Secretary General, UN
ESCOR, Economic and Social Council, Subst.
Sess., UN Doc E/2000/3 at 21 ¶ 90 (2000), notes
that in all but 14 countries party to the CRC,
national laws prohibit the imposition of the death
penalty on persons who committed the offence
when under 18 years of age. The United States
signed the CRC in 1995, but it and Somalia (a
nation with no government at present) are the
only two U.N. members that have not, as yet,
ratified the CRC.

Some 144 nations have ratified the

International Covenant on Civil and Political
Rights (ICCPR). Article 6(5) of the ICCPR
specifically forbids the use of the death penalty
against those under 18 at the time of the crime.
The language of this provision is explicit:
“Sentence of death shall not be imposed for
crimes committed by persons below eighteen
years of age . . . .” In 1979, the United States
10The Vienna Convention on the Law of Treaties,
S. EXEC. DOC. NO. 92-1, 92nd Cong., 1st Sess. 1
(1974).
30

signed the ICCPR, and in 1992, the Senate ratified

it, albeit with reservations that objected to article
6(5), and the Senate took the position that
31

the ICCPR was not self-executing. As articulated

in Article 19 of the Vienna Convention on the Law
of Treaties, a state may, when signing, ratifying,
accepting, approving or acceding to a treaty
formulate a reservation, but the reservation must
not be “incompatible with the object and purpose
of the treaty.”

The EU notes that the United States has

made no reservation to Article 4(2), which states
that no derogation can be made from article 6
even in times of public emergency, indicating
that article 6 is seen to be inherent to the
purposes of the ICCPR.

The Human Rights Committee (HRC), which

monitors and reports on matters relating to the
ICCPR treaty, has been established. By ratifying
the ICCPR and participating in the election of
officers to the United Nations Human Rights
Committee (HRC), the United States has
expressly recognized the authority of the HRC. A
11

number of federal courts also have explicitly

recognized the HRC’s authority in matters of the
ICCPR’s interpretation. See, e.g., United States v.
Duarte-Acero, 208 F.3d 1282, 1287 (11th Cir.
2000) (the HRC's guidance may be the “most
important” component in interpreting ICCPR
11

Declarations recognizing the competence of

the Human Rights Committee under Article 41,
Multilateral Treaties Deposited With the
Secretary General, Status as of 31 December
1994, U.N. Doc. ST/LEG/SER.E/13 at 133 (1995).
32

claims); United States v. Benitez, 28 F. Supp. 2d

1361, 1364 (S.D. Fla. 1998) (same); United States
v. Bakeas, 987 F. Supp. 44, 46, n.4 (D.Mass.
1997) (HRC has “ultimate authority to decide
whether
33

parties’ clarifications or reservations have any

effect”); Maria v. McElroy, 68 F. Supp. 2d 206,
232 (E.D.N.Y 1999) (HRC interpretations as
“authoritative”).

In 1995, the United Nations Human Rights

Committee concluded that the U. S. reservation
to article 6(5) was incompatible with the object
and purpose of the ICCPR and recommended that
the U. S. withdraw it. Further, the General
12

Comment Adopted by the Human Rights

Committee Under Article 40, Paragraph 4, of the
International Covenant on Civil and Political
Rights, Addendum, Hum. Rts. Comm., General
Comment No. 24 (52), & 8, U.N. Doc.
CCPR/C/21/Rev. 1/Add.6 (1995), states:

1. [W]here a reservation is not

prohibited by the treaty or falls within
the specified permitted categories, a
State may make a reservation
provided it is not incompatible with
the object and purpose of the treaty.

2. Reservations that offend

peremptory norms would not be
compatible with the object and
purpose of the Covenant. . . .
Accordingly, a State may not reserve
the right . . . to execute . . . children.

12See Consideration of Reports Submitted by

State Parties Under Article 40 of the Covenant,
U.N. Hum. Rts. Comm., 53d Sess., 1413th mtg.,
at & 14, U.N. Doc. ICCPR/C/79/Add.50 (1995).
34

3. While there is no automatic

correlation between reservations to
non-derogable provisions, and
reservations which offend against the
object and purpose of the Covenant,
a State has a heavy onus to justify
such a reservation.

4. The normal consequence of an

unacceptable reservation is not that
the Covenant will not be in effect at
all for a reserving party. Rather, such
a reservation will generally be
severable, in the sense that the
Covenant will be operative for the
reserving party without benefit of the
reservation.

The HRC expressly has concluded that the

United States’ reservation to Article 6.5 is thus,
incompatible.13

13

See HRC General Comment. Additionally,

in its first report on compliance, the Human
Rights Committee said:

Para. 279. The Committee is . . .

particularly concerned at reservations
to Article 6, paragraph 5, and Article
7 of the Covenant, which it believes
to be incompatible with the object
and purpose of the Covenant.

...
35

Article 68.4 of the Fourth Geneva

Convention states that “the death penalty may
not be pronounced against a protected person
who was under eighteen of age at the time of the
offence.” By ratifying this treaty without
reservation in 1955, the United States agreed
that in the event of war or other armed conflict in
which it may become involved, the United States
will protect all civilian children in occupied
countries from the death penalty.

Para. 281. [The HRC] “deplores

provisions in
(continued…)

(…continued)
the legislation of a number of states which
allow the death penalty to be pronounced
for crimes committed by persons under
18. . . .”

Report of the Human Rights Committee, Official

Records of the General Assembly, Fiftieth
Session, Supplement No. 40, U.N. Doc. A/50/40
(October 3, 1995), paras. 279, 281. See also
Human Rights Committee, Comments on the
United States of America, U.N. Doc.
CCPR/C/79/Add.50 (1995).
36

C. Execution of Juveniles Is
Contrary to the Positions of
States in International
Bodies.

The position taken by nations within

international bodies and organizations, including
the United Nations, further reflects relevant
international norms.

The United Nations Human Rights

Committee has expressed the view that the
execution of children violates customary
international law. United Nations Human Rights
37

Committee, General Comment No. 24 (50)

Relating to Reservations.

The United Nations Commission on Human

Rights, at its 53rd Session in 1997, passed a
resolution calling on states to consider abolishing
the death penalty altogether and urging those
states retaining it not to impose it on children. 14

Every year afterwards, the Commission has

passed a similar resolution.
15

Resolutions by the United Nations Economic

and Social Council (ECOSOC) and the General
Assembly oppose imposition of the juvenile death
penalty. The General Assembly adopted the
ECOSOC’s resolution to implement safeguards to
prevent the juvenile death penalty. The United
16

States did not make any declaration on these

standards.

14

CHR resolution “The question of the death

penalty” (E/CN.4/RES1997/12) adopted on 3 April
1997.
15

CHR resolutions “The question of the death

penalty” (E/CN.4/RES/1998/8,
E/CN.4/RES/1999/61, and E/CN.4/RES/2000/65),
the last of which was adopted on 26 April 2000.
16See Safeguards Guaranteeing Protection of the

Rights of Those facing the Death Penalty, ESC.

Res 1984/50, annex, 1984 UN ESCOR Supp. (No 1
) at 33, UN Doc E/ 1984/84 (1984).
38

In 1985, the United Nations General

Assembly adopted by consensus the United
Nations Standard Minimum Rules for the
Administration of Juvenile Justice, which also
oppose capital punishment for juveniles. Since
17

1997, the United Nations Commission on Human

Rights has passed (over dissenting votes)
resolutions calling on states to abolish the death
penalty in general and specifically asking nations
“not to impose it for crimes committed by
persons below 18 years of age.” In 2001, the
18

one Commission resolution mentioning the

prohibition of the juvenile death penalty as a
separate issue passed by consensus without vote.
This resolutions requests that

17GA res 40/33, annex, 40 UN GAOR Supp. (No

53) at 207, UN Doc A/40/53 (1985).

18See The Question of the Death Penalty, Comm.

on Hum. Rts., 57th Sess. Resolution 2001/68,
adopted April 25, 2001, E/CN.4/2001/Res/68
(2001), The Question of the Death Penalty, Comm
on Hum. Rts., 56th Sess, Resolution 2000/65,
adopted April 27, 2000, E/CN.4/2000/RES/65
(2000); The Question of the Death Penalty,
Comm on Hum. Rts., 55th Sess, Resolution
1999/61, adopted April 28, 1999,
E/CN.4/RES/1999/61 (1999); The Question of the
Death Penalty, Comm on Hum Rts., 54th Sess,
Resolution 1998/8, adopted April 3, 1998,
E/CN.4/1998/RES/8 (1998); The Question of the
Death Penalty, Comm. on Hum. Rts., 53rd Sess.
Resolution1997/12, adopted April 3 1997,
E/CN.4/1997/RES/12 (1997).
39

governments comply with the mandates of Article

37 of the CRC and Article 6(5) of the ICCPR.
19

Furthermore, the United Nations Sub-

Commission on the Promotion and Protection of
Human Rights has passed similar resolutions. In
1999, the United States was identified as one of
six nations that had executed juvenile offenders
since 1990. On the Sub-Commission’s
accounting, the United States was responsible for
10 of the 19 executions during that time period.
The Sub-Commission condemned the imposition
of the death penalty on those who were under 18
at the time of their offense and called on all
states, including the United States, that still
executed children to end that practice. One year
20

later, the Sub-Commission confirmed “that the

imposition of the death Penalty on those aged
under 18 at the time of the commission of the
offence is contrary to customary international
law.”21

19See Rights of the Child, Comm on Hum. Rts.

57th Sess., Resolution 2001/75, adopted April 25,
2001, E/CN.4/2001/RES/75 para. 28(a) (2001).

20The Death Penalty Particularly in Relations to

Juvenile Offenders, United Nations Sub-
Commission on the Promotion and Protection of
Human Rights, 52nd Sess., Res. 1999/4, adopted
August 24, 1999, UN Doc.
E/CN.4/SUB.2/RES/1999/4 (1999).

21The Death Penalty Particularly in Relations to

Juvenile Offenders, United Nations Sub-
Commission on the Promotion and Protection of
40

By consensus, the ECOSOC has adopted

standards forbidding the execution of persons for
crimes when they were under 18, and the United
Nations General Assembly has endorsed these
standards. The United States did not make any
22

declaration on these standards. The Seventh

United Nations Congress on the Prevention of
Crime and Treatment of Offenders has done
likewise, as have the United Nations Standard
23

Human Rights, 53rd Sess., Res. 2000/17, adopted

August 17, 2000, UN Doc.
((continued…)

(…continued)
E/CN.4/Sub.2/RES/2000/17 (2000).

22

ECOSOC Resolution on Safeguards

Guaranteeing Protection of Rights of Those
Facing the Death Penalty 1984/50, endorsed by
the UNGA in Resolution 39/118 adopted on 25
May 1984.

23

The Seventh United Nations Congress on

the Prevention of Crime and the Treatment of
Offenders, Milan 1985 (The “Beijing Rules”).
Article 17.2 of Guiding Principles in Adjudication
and Disposition states: “Capital punishment shall
not be imposed for any crime committed by
juveniles.”
41

Minimum Rules for the Administration of Juvenile

Justice.
24

24

Resolution on Minimum Rules for the

Administration of Juvenile Justice, UNGA
Resolution 40/33 of 29 November 1995.
42

The United Nations Sub-Commission on the

Promotion and Protection of Human Rights
passed a resolution on August 24, 1999
E/CN.4/Sub.2/1999/RES/4 (24 Aug. 1999).

In 1987, the Inter-American Commission on

Human Rights found that there was a regional
jus cogens peremptory norm encompassing the
Organization of American States that prohibited
the execution of children. As stated in Article 53
of the Vienna Convention on the Law of Treaties a
jus cogens norm 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.” 25

The Restatement (Third) of the Foreign Relations

Law (1986), agrees with this standard, stating
that a jus cogens norm is established where there
is acceptance and recognition by a “large
majority” of states, even if over dissent by “ a
very small number of states.” The United States
26

itself agreed with that general point. See

25Vienna Convention on the Law of Treaties, May

23, 1969, art 53, 1155 U.N.T.S. 331, 352,
reprinted in 8 I.L.M. 679).

26Restatement (Third) of the Foreign Relations

Law § 102, and Reporter’s Note 6 (1986) (citing
Report of the Proceedings of the Committee of
the Whole, May 21, 1968, U.N. Doc.
A/CONF.39/11 at 471-7).
43

Pinkerton and Roach v. United States, Resolution

No. 3/87, Case 9647, Inter-Am. Cm. H.R., Annual
Report of the Inter-American Commission on
Human Rights 1986-1987 147, OES/Ser.L/V/II/71,
doc. 9, rev. 1 (1987) ¶ 55:
44

The Commission finds that in the member

States of the OAS there is recognized a
norm of jus cogens which prohibits the
State execution of children. This norm is
accepted by all the States of the
inter-American system, including the United
States. The response of the U.S.
Government to the petition in this case
affirms that “[A]ll states, moreover, have
juvenile justice systems; none permits its
juvenile courts to impose the death
penalty.”

As of 1987, however, the U. S. did not

agree that there was a generally understood age
of majority for purposes of this principle. Id. ¶ 56:

The Commission finds that this case

arises, not because of doubt
concerning the existence of an
international norm as to the
prohibition of the execution of
children but because the United
States disputes the allegation that
there exists consensus as regards the
age of majority

In the view of the EU, the international

agreements cited above, especially the rapid and
near-universal acceptance of CRC, dispel any
doubt on this point. Whatever uncertainty may
have existed in 1987, it is now clear that
throughout the western hemisphere and the rest
of the world, there is a broad consensus that 18 is
the age of majority for purposes of the prohibition
against execution of children.
45

The EU believes that these sources

demonstrate conclusively the existence of a
broad, international consensus
46

against execution of children, and that except in

the United States and a very few other nations,
this means that no one may be executed for a
crime committed before the age of 18.

CONCLUSION

In the light of relevant international norms,

the EU and its member states respectfully
support Mr. Williams’s petition for certiorari to
review the judgment of the Supreme Court of the
State of Georgia.

February 2002

WILLIAM J.
MERTENS
Asbill Moffitt & Boss
Chtd.
1615 New
Hampshire Avenue, N.W.
Suite 200
Washington, D.C.
20009-2520
(202) 234-9000,
ext. 120

Counsel of Record
for Amicus Curiae the European
Union