16 outside of the realm of law”. To support its argument, the State asserted that “the Barbadian criminal justice system allows every person accused of a crime of murder or treason the full range of due process rights and procedures, access to common law and statutory defenses and exceptions, and judges each person’s guilt or innocence at law individually. Further, the Barbados Privy Council examines all of the considerations that may be said to apply to the individual – looking at that person in her or his unique circumstances – in order to decide whether to commute the death sentence”. 57. Although the Court agrees that extrajudicial executions are, by definition, arbitrary and contrary to Article 4(1) of the Convention,51 the State is incorrect to assume that a lawfully sanctioned death sentence may not also be arbitrary. A lawfully sanctioned mandatory sentence of death may be arbitrary where the law fails to distinguish the possibility of different degrees of culpability of the offender and fails to individually consider the particular circumstances of the crime. Section 2 of the Offences Against the Person Act in Barbados lawfully sanctions the death penalty as the one and only possible sentence for the crime of murder52, and the law does not allow the imposition of a lesser sentence in consideration of the particular characteristics of the crime (supra pars. 49-61), or the participation and degree of culpability of the defendant. 58. In this regard, the Court has previously held that to consider all persons responsible for murder as deserving of the death penalty, "treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the death penalty."53 59. Evidently, the State is correct in asserting that the strict observation of certain due process rights and procedures are essential in evaluating whether the death penalty has been imposed arbitrarily.54 Nevertheless, a distinction should be made between the sentencing stage and the availability and observance of such procedures during the whole proceedings of a capital case, including the appeals process. In accordance with the law in Barbados, the availability of statutory and common law defenses and exceptions for defendants in death penalty cases are relevant only for the determination of the guilt or innocence of the accused, not for the determination of the appropriate punishment that should be imposed once a person has been convicted. That is, a defendant in a capital 51 Cf. Case of Cantoral Huamaní and García Santa Cruz, supra note 25; Case of Escué Zapata V. Colombia. Merits, Reparations and Costs. Judgment of July 4, 2007. Series C No. 165, and Case of La Rochela Massacre V. Colombia. Merits, Reparations and Costs. Judgment of May 11, 2007. Series C No. 163. 52 The definition of murder is not provided in any written law, as it remains a common law offence, and it is understood that “[m]urder is committed where a person of sound mind and the age of discretion unlawfully kills any reasonable creature in being under the Queen’s peace with malice aforethought either expressed by that person or implied by law, so that the party wounded or hurt dies of that wound or hurt within a year and a day of same”. Cf. Definition of murder in Final written submissions of the State (merits case file, volume III, folio 848). Moreover, a person who “aids, abets, counsels, procures or incites another to commit [murder] is guilty of [such] offence and may be proceeded against and punished as a principal offender”. Cf. Offenses Against the Person Act, supra note 38, s. 45, (folio 2992). 53 Cf. Case of Hilaire, Constantine and Benjamin et al., supra note 42, para. 105, citing Woodson v. North Carolina, 428 U.S. 280, 304 (1976). The Supreme Court of the United States of America held that the mandatory death penalty constituted a violation of the due process guarantees of the Fourteenth Amendment and the right to not be subjected to cruel and unusual punishment of the Eighth Amendment of the Constitution of the United States of America. The Court also indicated that the imposition of the death penalty generally necessitates a consideration of the relevant facets of the character and record of the individual offender and the circumstances of the particular offence. 54 In Advisory Opinion OC-16/99, the Court made it clear that when due process guarantees are affected the “imposition of 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 (e.g. The American Convention on Human Rights, Article 4 […]) with the juridical consequences inherent in a violation of this nature i.e., those pertaining to the international responsibility of the State and the duty to make reparations”. Cf. The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, supra note 44, para. 137.