27. ln this decision the African court, by dint of the fact that it denounces only the
mandatory death penalty,
is out of step with the position which can be
considered as constant of the United Nations lnternational Law commission.
The lnternational Law commission has been "convinced that the abolition of
the death penalty contributes to the enhancement of human dignity and the
progressive extension of fundamental rights"zs. This development is reflected
in the pronouncements of the lnter-American court, which emphasized that the
lack of consular assistance is an infringement of fundamental rights. ln these
circumstances, it continued " the death penalty is a violation of the right not to
be 'arbitrarily' deprived of one's life, in the terms of the relevant provisions of
the human rights treaties (...)"30.
court, while asking Tanzania to review its legislation on a category of death
penalty - the mandatory death penalty3l - is refusing to direct its decision to
28. The
condemn the death penalty. It allows islands of tolerance to persist. on this
judgment, it departs from the trend of international criminal law. As to the
universality of the abolition of the death penalty, it must be recalled, without
necessarily exaggerating, that in its judgment on fhe Norfh sea continental
shel€z the lnternational court
of Justice had carefully examined
the
relationship between conventional and customary standards. It considered that
international conventions could produce cu_stomary accessions that were
applicable.
Blaise Tchikaya
_-
}
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.,"
q,d-
,,"
years, which may not exceed a maximum of30 years; or (b) A term oflife imprisonment whenjustified
by the extreme
gravity ofthe crime and the individual circumstances ofthe conviaed person,,.
2e
Resolution 1997112,3 April 1997. (24) and Resolution 1998/g, 3 April 1998.
30
IAIIRC, O.C., I October 1999, p.264, g .37 et p. 268, $ l4l
3r
Article 197 ofthe Penal Code of Tanzania states that "Any p".ro,
of murder shall be sentenced to
"onvicted
death"
ICJ., North Sea continental Shelf, Denmark and the Netherlands v. FRG ICl, 20 February 1969
32
72