Death Penalty and United Nations

Gauri Gupta

“ The taking of life is too absolute, too irreversible, for one human being to inflict it on another, even when backed by legal process.”

UN Secretary General
Ban Ki-moon

Death penalty is not yet prohibited under the International law. However, it’s abolition is encouraged and may be imposed within very strict limitations. According to the United Nations official data, today, more than two – third of the member states of the UN have either abolished the death penalty or they simply do not implement it. Most of these nations are diverse and rich in culture and have remarkable legal systems in their nations. The General Assembly adopted a resolution in 2007 on a moratorium on the use of the death penalty. On 21 December 2010, it adopted a third resolution on the moratorium which was approved by a broader margin and stated that “ Statesstill maintain the death penalty to progressively restrict its use, to reduce the number of offences for which it may be imposed, and to establish a moratorium on execution with a view to abolish the death penalty.”

The International Covenant on Civil and Political Rights does not abolish death penalty, however, there are certain instruments[1] that work towards the abolition of capital punishment. At the International level, the most important provision of law that deals with the death penalty is Article 6 of the International Covenant on Civil and Political Rights (ICCPR). During the draft of the ICCPR, only ten member nations had been signatories to it for the abolition of the death penalty. However, extensive debates and discussions on the right to life and the personal liberty associated with it interested other nations to sign up for it.

ICCPR and Capital Punishment :Article 6 of the International Covenant on Civil and Political Rights states:

  • Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of life.
  • In countries that have not abolished the death penalty, sentence of death may be imposed for the most heinous crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court.
  • When the deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorise any State Party to the present Covenant on the Prevention and Punishment of the Crime of Genocide.
  • Anyone sentenced to death has the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death can be granted in all cases.
  • Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.
  • Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the Covenant.

The above stated article clearly lays down certain reasonable restrictions on the imposition of death penalty under Article 6 of the ICCPR. Some of these are: right to fair trial before the imposition of death penalty; limitation of the death penalty to the most serious offenses, prohibition against the execution of persons under eighteen years of age; prohibition against the execution of pregnant women and right to seek pardon and commutation against the sentence of death penalty. [s3] 

  • Right to Fair Trial – “Arbitrarily deprived”

Article 6 of the ICCPR clearly states that every individual by the virtue of birth has the right to life. No individual can be “arbitrarily deprived” of this inherent right except by a procedure laid down by law. The Human Rights Committee[2] has interpreted this article and has stated that every individual has the right to observe a fair trial before the imposition of the death penalty. It can be divided under two heads: a) protection against being arbitrarily deprived of one’s inherent right to life and b) requirement that the death penalty not be imposed when the Covenant is otherwise breached.

  • Limitation of the imposition of Death Penalty to “the most serious offenses”

The limitation of the imposition of capital punishment to‘ the most serious offenses’ is an established principle of International Law, although there is no definite definition and agreement as to what are the most serious offenses.  The Economic and Social Council stipulated that the most serious crimes should not go beyond intentional crimes with lethal or extremely grave and harsh consequences. These safeguards are not legally binding in nature, however, they have been validated by the UN General Assembly, demonstrating strong support on the international level.
This interpretation is not universally accepted since what comprises of the “ most serious crimes” is different for every nation.
Example: Islamic states consider adultery and apostacy are the most serious crimes whereas other states like Singapore consider drugs related offenses are the most serious in nature.
This provision is extremely limited in its application and is used as an exceptional measure with strict conditions and restrictions under the international law.

  • Imposition of Death Penalty –  Breach of Human Rights

The argument that death penalty is cruel and inhumane in nature is gaining an increasing ground with the expansion of the Human Rights. The European Court of Human Rights found that the death row phenomenon in the United States comprises of cruel, inhumane or disregarding treatment in Soering v. United Kingdom and Germany[3], as did the Judicial Committee of the Privy Council in Pratt et al v Attorney – General for Jamaica et at [4]. There are innumerable modes of execution most of which are identified as unacceptable by the International law as there are callous in nature.

Example: the Human Rights Committee has esteemed the use of gas chambers as constituting cruel, harsh, inhuman and disregarding treatment. It has also stipulated that “public executions are incompatible with the human dignity.”
The distinction between cruel, inhuman and torture is blurred. Some of the experts claim that execution is similar to torture as it constitutes, an extreme mental and physical impact on the person.
During the current times, the progress towards considering capital punishment to constitute torture is slow. However, due to the increasing growth and development of Human Rights,it is most likely that in the near future most of the methods of carrying out execution would themselves be considered as a breach of the inherent right to life.

A look towards the arguments of the Abolitionists and the Retentionists of Death Penalty

As the Human Rights Committee states, the ICCPR strongly favours the abolition of death penalty. However, article 6 of the ICCPR does not mandate the abolition of capital punishment under the International law.
The first international treaty to abolish death penalty was the Geneva Convention, 1929, which restricted it to a penalty on the prisoners of war who have been taken in armed conflict.
With the advent of the United Nations Declaration on Human Rights, the idea of the abolition of death penalty has been gaining ground. According to the official data of the UN, at the beginning of the 20th century, only Costa Rica, San Marino and Venezuela has permanently abolished the death penalty. Today, over 133 countries have abolished capital punishment in law or practice.
Steady progress is taking place with three countries abolishing death penalty every year throughout the last decade.[5]
The debate and discussion on death penalty at the international and national level is more of an issue backed firmly by the arena of Human Rights, making it no longer acceptable as a national criminal law policy.
States have abolished death penalty for numerous reasons, with the discourse to human rights being the foremost one. When the Constitutional Court of South Africa abolished death penalty, Justice Chaskalson said, “ The right to life and dignity are the most important to all human right……and this must be demonstrated by the state in everything it does, including punishing its criminals.”
Some of the states have put forth their concerns with the discriminatory ways in which the penalty is imposed[6]
Those who favour in the retention of death penalty argue that it deters crimes and prevents re-offenses. Some experts even claim that it is a matter of sovereignty and is in no way an arena of human right laws. Some of the Islamic countries even claim that it is under their religion and in accordance with the Islamic principles.

Conclusion

I would like to conclude my essay by providing the positions of different international organisations on death penalty.
Both the Office of the High Commissioner of Human Rights and the High Commissioner of Human Rights strongly oppose death penalty and support its universal abolition.[7]The UN General Assembly also shows its support towards the abolition of capital punishment.
On 18 December 2007, the UN General Assembly adopted a resolution supporting a moratorium on capital punishment[8]. 104 countries voted in favour of the resolution while 54 were against it. 29 countries are still abstaining from it.
Amnesty International, the International Commission of Jurists and Human Rights Watch have labelled the death penalty a violation of the right to life and the protection against cruel, inhumane and degrading treatment.
Both the former Secretary Generals of UN Ban Ki-Moon and Kofi Annan[9] favoured and promoted the abolition of death penalty.
International law is thus, moving towards the abolition of death penalty steadily. While capital punishment remains legal at the international level during the current time, it is highly likely that it will be abolished in the near future.

References:

  1. https://www.un.org/
  2. https://www.ohchr.org/Lists/MeetingsNY/Attachments/27/moving_away_from_death_penalty_web.pdf
  3. file:///C:/Users/new/AppData/Local/Packages/Microsoft.MicrosoftEdge_8wekyb3d8bbwe/TempState/Downloads/Deathpenalty_Paper%20(1).pdf
  4. https://files.deathpenaltyinfo.org/legacy/files/pdf/Oxfordpaper.pdf

[1] These include: Second Optional Protocol to the International Covenant on Civil and Political Rights, the Protocol to the American Convention on Human Rights to Abolish the Death Penalty. The ones that strictly limit death penalty include: the Convention on Human Rights and Fundamental Freedoms of the Commonwealth of Independent States, the American Convention on Human Rights and the Arab Charter on Human Rights

[2] Note: the findings of the Human Rights Committee are in-principle only. They are not binding in nature.

[3] 7 July 1989 Series A Vol 161 11 EHRR 439

[4] [1993]  4 ALL ER 769

[5] Amnesty International “ Facts and Figures on Death Penalty” ; Robert Badinter, “Preface- Movinh towards the abolition of death penalty”

[6] Roger Hood- ‘The importance of Abolishing Death Penalty’; United Nations Norms and Guidelines in Criminal Justice: From Standard- Setting to Implementation, and Capital Punishment

7 https://www.ohchr.org/EN/Issues/DeathPenalty/Pages/DPIndex.aspx

[8] First resolution of its kind. A similar one was rejected in 1994 and 1999.

[9] Served as the eighth and seventh Secretary Generals of the United Nations respectively

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s