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16 Vietnamese J. Legal Sciences 1 (2026)

handle is hein.journals/vemsjl2026 and id is 1 raw text is: Vietnamese Journal of Legal Sciences, Vol. 16, No. 1, 2026 , pp. 1-18 CONTEMPLATIONS ON THE DEATH PENALTY ABOLITION UNDER THE INTERNATIONAL CRIMINAL COURT'S JUSTICE SYSTEM BILLY ESRATIAN Australian National University, Australia Email: billy.esratian@anu.edu.au Abstract The state's choice to retain the death penalty within its penal system, traditionally, has been within the realm of its sovereignty. A dynamic, however, materialized when the International Criminal Court (ICC) took a zero-sum approach in its criminal justice system by abolishing the death penalty. Consequently, a potential erosion of what has been traditionally recognized as the state's choice arises. This article will assess the evolution of the criminal justice system in the international law context, which eventually influenced the ICC's position. Following such observation, this article will inquire whether the ICC's abolitionist approach could be universally embraced, especially in a world filled with diverse legal traditions. Finally, this article will probe the leeway within the complementarity principle, which for so long has been regarded as the retentionist states' last line of defence in preserving the death penalty when the ICC has jurisdiction. Keywords: death penalty, International Criminal Court, legal pluralism, complementarity principle, United Nations Security Council Received: 18 October 2025 Revised: 02 January 2026 Accepted: 13 January 2026 The state's retention of the death penalty within its criminal law system has traditionally been deliberate. It is an exercise of the state's sovereignty. The conception of the International Criminal Court (ICC), however, brings about a potential undermining of such a status quo, for the death penalty is not recognized under the ICC's penal system. Arguably, the complementarity principle exists to preserve the prioritization of the state's exercise of its own penal system, and by extension, its application of the death penalty. However, a closer look at the United Nations Security Council's referral power in the ICC presents yet another dynamic to the state. In light of this, a normative evaluation on the ICC's death penalty abolition is needed to shed light on several convolving relevant issues, including legal pluralism, retributive justice, and the complementarity principle. To do so, this article employs a doctrinal methodology and theoretical approach to trace the evolution of the abolition of the death penalty within the ICC's penal system and the potential unintended consequences thereof. DOI: 10.2478/v17s-2026-0021 1