When counter-terrorism undermines its own logic: the Sahel's death penalty revival, international humanitarian law and the Banjul Charter

1Introduction

On 4 December 2025 Burkina Faso's Council of Ministers approved a draft Penal Code restoring capital punishment for high treason, terrorism and espionage, seven years after abolition.¹ The bill remains before the Transitional Legislative Assembly.² Chad, which abolished the death penalty in 2020, appointed a commission in June 2025 on reinstatement, though the UN Human Rights Committee urged it in March 2026 not to proceed.³

Both depart from a settled regional position: 24 of the 54 state parties to the African Charter on Human and Peoples' Rights have abolished the death penalty for all crimes, and in 2025 only Somalia and South Sudan executed anyone in sub-Saharan Africa.⁴ This article assesses that case on legal, procedural and security grounds. It is unsustainable on each.

2Legality

The legal objection is drawn from African practice, not imported into it. When African and African-created tribunals confronted the gravest crimes in international law, they declined to impose death. The Extraordinary African Chambers, established by the African Union and Senegal, convicted former Chadian president Hissène Habré of crimes against humanity, war crimes and torture, and imposed life imprisonment.⁵ The International Criminal Tribunal for Rwanda sentenced Jean Kambanda to life for genocide.⁶ The Special Court for Sierra Leone, whose statute permitted only imprisonment, gave Charles Taylor 50 years,⁷ and article 77 of the Rome Statute confirms the position at the International Criminal Court.⁸ Terrorism, by contrast, has no settled definition in international law and is prosecuted under domestic statutes with fewer safeguards. A state cannot reserve its severest penalty for offences less grave than those its regional institutions declined to punish by death.

A state cannot reserve its severest penalty for offences less grave than those its regional institutions declined to punish by death.

The African Court has restricted the penalty further, holding in Ally Rajabu that a mandatory death sentence violates article 4 and that hanging violates the dignity protected by article 5.⁹ Article 4 is itself unusual: as the Commission has observed, unlike article 6(2) of the International Covenant on Civil and Political Rights it preserves no exception for the most serious crimes. That silence is not a prohibition, but it leaves any death sentence to be justified against the ban on arbitrary deprivation of life.

These penalties would operate under further limits. Hostilities between Sahelian forces and Jama'at Nasr al-Islam wal-Muslimin (JNIM) or Islamic State Sahel Province are non-international armed conflicts governed by Common Article 3 and, where the organisational threshold is met, Additional Protocol II.¹⁰ Common Article 3 forbids sentences passed other than by a regularly constituted court affording all indispensable judicial guarantees,¹¹ which Additional Protocol II and customary law specify as independence, impartiality, the presumption of innocence and freedom from compelled confession.¹² General Comment 3 confirms that the right to life permits no derogation in response to terrorism and is read alongside humanitarian law in armed conflict.¹³

3Procedure

Whether those guarantees can be met is an empirical question. The African Commission's fair trial guidelines state that military courts should never exercise jurisdiction over civilians, and that special tribunals should not hear offences belonging to the ordinary courts.¹⁴ Nigerian terrorism trials depart from both. Human Rights Watch documented convictions resting on uncorroborated confessions, untrained interpreters and defendants who met counsel on the day of trial; its 2026 review found prosecutors withdrawing charges they could not prove once defendants pleaded not guilty.¹⁵ The Ministry of Justice has itself identified reliance on confessions, absent forensic evidence and the difficulty of rendering military intelligence admissible as the principal obstacle.¹⁶ Neither proposal identifies the trial forum or the method of execution. A sentence of imprisonment imposed on such evidence can be reviewed; an execution cannot.

The consequence is not merely unlawfulness. Article 8(2)(c)(iv) of the Rome Statute makes breach of that prohibition a war crime in non-international armed conflict. Trial Chamber X applied that provision in the Sahel in June 2024, convicting Al Hassan Ag Abdoul Aziz of assisting sentences passed in Timbuktu by a court lacking the 'essential guarantees of independence and impartiality'. The Chamber read that requirement as reaching beyond how a court is constituted to its capacity to conduct a fair trial, treating the absence of those guarantees as sufficient.¹⁷ Burkina Faso notified withdrawal from the Statute in June 2026 but remains bound until June 2027. Liability is not automatic: the conflict must have substantially affected the perpetrator's ability, decision, manner or purpose.¹⁸ Where defendants are captured in operations and tried under jurisdiction created by the conflict, that nexus is met, and conduct for which the Court held an armed group's officials responsible does not change character because a state commits it.

4Security

The remaining argument is deterrence, and the burden rests on the state invoking it. The United States National Research Council found the deterrence literature incapable of showing whether capital punishment raises, lowers or leaves homicide rates unchanged.¹⁹ On terrorism specifically, UN special rapporteurs found no persuasive evidence that the death penalty contributes more than other punishments to its eradication.²⁰ The United Kingdom answered the same question under sustained terrorist violence: Parliament declined to restore capital punishment in Northern Ireland, and in 1990 the Government relayed the Northern Ireland Secretary's assessment that executions would create martyrs, hinder the legal processes built for terrorism cases, and damage the trust between security forces and the community on which information about terrorism depends.²¹ In the Sahel, security force abuses already sustain insurgent recruitment.²² Whether executions would compound this has not been measured, but the British assessment identifies the mechanism.

5Conclusion

Reinstatement is not a trade-off between rights and security but a loss on both.

The Working Group should seek African Union adoption of the 2015 Draft Protocol on the abolition of the death penalty, and press Burkina Faso and Chad to accede to the Second Optional Protocol.²³ The institutions Africa built to judge genocide did not require the death penalty, and nothing suggests that terrorism prosecutions under weaker safeguards require it.

Suggested citation: Carballo Nievas, M. F. (2026). When counter-terrorism undermines its own logic: the Sahel's death penalty revival, international humanitarian law and the Banjul Charter. Winner of the Best Research Paper Award on the Death Penalty, African Commission on Human and Peoples' Rights (ACHPR), Banjul, 10 October 2026.

Online sources were accessed on 1 September 2026. The status of the legislative proposals in Burkina Faso and Chad may have changed since that date.