ANALYSING THE UNITED NATION’S ROLE IN THE PATH TOWARDS ABOLITION OF DEATH PENALTY

Mahek Bhojwani

INTRODUCTION

The Office of the United Nations High Commissioner for Human Rights (OHCHR) in furtherance of its efforts to abolish the death penalty, had recently drafted a resolution for a moratorium in 2018.[1] However, this is not the first time a draft resolution has been proposed. Several resolutions calling upon moratoriums had earlier been passed and adopted in 2007, 2008, 2010, 2012 and 2013.[2] An attempt towards the cause was also made in 2016.[3] The movement against the age-old penalty had begun around the 1960s; way earlier than the first steps towards formal action. Despite the efforts by the means of several resolutions, the penalty remains in practise in certain countries.

ANALYSIS

It is difficult to categorize all countries as either completely abolitionist or totally retentionist, for the terms only depict extremities. In reality, there are countries where the penalty is legal but not frequently practised. Even the countries that are today recognised as completely abolitionist had not abolished the penalty in a single step. For example, Portugal, the first country to abolish death penalty completely, had first scrapped it for political crimes in 1867, for all crimes in 1976 and formally abolished the penalty in its entirety in 1987. The death penalty can only be abolished completely when its original purpose and need is gradually realized to be unnecessary.  The United Nations had tried to pass a resolution in 1994 too but it had failed, supporting that a worldwide abolition is not an easy and one step task.[4] Another resolution in 1997 had been passed, before the discussion gained significant momentum in the recent years[5] Ever since, a significant change has been observed in the trends, the numbers of those in favour of a moratorium staying the practise of the penalty increasing from 99  in 2007[6] to around  123 nations  in 2018.

By the means of the recent moratorium, the universal protector of human rights has taken into consideration the reasons for opposing the complete abolition. It has therefore made an attempt to achieve the utopian goal in a balanced manner and called upon states to start with a stay on executions that it hopes will eventually lead to complete abolition. It introduced certain safeguards via the aim to “progressively restrict the use of the death penalty and reduce the number of offenses for which it may be imposed”. The safeguards include the maximum protection of human rights by the means of execution and the trial process among others. Besides the safeguards, it also provides for information on such executions to be made public. The major concern expressed is that the death penalty should not be awarded arbitrarily or on the basis of discriminatory laws.[7]

Although there is no consensus on the question of the death penalty, countries of the United Nations do agree that there should be no arbitrary deprivation of life and the mode of execution shall also be one that is not opposed to human dignity. In the discussion of the 2007 resolution, India, Egypt and Bangladesh, respecting human rights have expressed that their legal systems are careful of errors and are also exhaustive and allow for redress. In India, the legal procedure for awarding the death penalty is exhaustive and transparent; the laws require a valid justification for awarding the death penalty. The country follows the ‘rarest of the rare’ doctrine that restricts the use of the death penalty to specified circumstances only. Safeguards such as a fair trial, right of appeal to a higher court, an adequate opportunity to defend and even the presumption of innocence help to ensure that there is no error in the judgement and innocent lives are not deprived in the name of justice. Furthermore, as observed in the 2012 Nirbhaya Gang Rape and Murder Case, the legal system is quite exhaustive and procedural in terms of the remedies available against the punishment. The case that had sparked protests for justice and reform all over the nation had only ended with the capital punishment awarded to the convicts, 8 years later. The date of execution was delayed several times, due to the non-exhaustion of remedies of the convicts that include: curative petition, mercy petition and review for the mercy petition.[8]

Certain countries, award the death penalty inappropriately, that results in the punishment awarded being greater than the crime committed. In Iran, not only is the death penalty applicable retrospectively but has also been used to execute minors. The Chinese Government, that used the death penalty to demonstrate the power of the state, too executes criminals for a number of crimes including that of robbery. Another important aspect of the death penalty in China is that there is no official record of all the executions carried out and there are speculations of secret executions too. Often, the mode of execution is also chosen arbitrarily and not one that causes the least disrespect to human dignity. Japan also used the same mode of execution as China. It has been reported that at times, the inmates are not informed of their execution beforehand. The moratorium can be made applicable to these countries that have the potential to apply safeguards to protect human rights and execute the convicts respectfully at the least.

CONCLUSION

The question whether the death penalty in itself is violative of the basic human rights of man has still not been answered unanimously. Often the question is whether a state should be allowed to decide upon the deprivation of a human life or can an international organization intervene with the state’s sovereignty to manage its internal affairs in appropriate ways. The United Nations as a body aims to abolish the death penalty in the 21st century. However, it may not be possible to arrive at a consensus on the question of the penalty’s validity among countries that have different legal systems, crime rates and social scenarios. Owing to the inability to arrive at a consensus at the present moment, the United Nations plays a great role towards the long path of abolition by adopting a moratorium to stay executions. The safeguards provided within also ensure that human rights are protected to a greater extent. It may also prove to be beneficial, if it is used as a basis to reform justice systems in retentionist countries, that prefer the existence of the penalty, without infringing on human rights, other than the question of the penalty in itself in the process.

REFERENCES

1. United Nations High Commission for Human Rights Resolution, A/73/589/Add.2

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

3.https://deathpenaltyinfo.org/news/a-record-120-nations-adopt-un-death-penalty-moratorium-resolution

4. R. Hood, The Death Penalty: A World-wide Perspective 55 (2d edit. 1996)

5. United Nations High Commission for Human Rights Resolution, E/CN.4/1997/12 (April 3, 1997)

6. United Nations General Assembly resolution A/RES/62/149 (December18, 2007)

7. https://www.un.org/press/en/2018/gashc4252.doc.htm

8.https://www-indiatoday-in.cdn.ampproject.org/v/s/www.indiatoday.in/amp/india-today-insight/story/nirbhaya-case-a-game-of-petitions-1643124-2020-02-04?amp_js_v=a3&amp_gsa=1&usqp=mq331AQFKAGwASA%3D#aoh=15908261930960&csi=1&referrer=https%3A%2F%2Fwww.google.com&amp_tf=From%20%251%24s&ampshare=https%3A%2F%2Fwww.indiatoday.in%2Findia-today-insight%2Fstory%2Fnirbhaya-case-a-game-of-petitions-1643124-2020-02-04


[1] United Nations High Commission for Human Rights Resolution, A/73/589/Add.2

[2] https://www.ohchr.org/EN/Issues/DeathPenalty/Pages/DPIndex.aspx

[3] https://deathpenaltyinfo.org/news/a-record-120-nations-adopt-un-death-penalty-moratorium-resolution

[4]   See . R. Hood, The Death Penalty: A World-wide Perspective 55 (2d edit. 1996).

[5] United Nations High Commission for Human Rights Resolution, E/CN.4/1997/12 (April 3, 1997).

[6] United Nations General Assembly resolution A/RES/62/149 ( December18, 2007)

[7] https://www.un.org/press/en/2018/gashc4252.doc.htm

[8]https://www-indiatoday-in.cdn.ampproject.org/v/s/www.indiatoday.in/amp/india-today-insight/story/nirbhaya-case-a-game-of-petitions-1643124-2020-02-04?amp_js_v=a3&amp_gsa=1&usqp=mq331AQFKAGwASA%3D#aoh=15908261930960&csi=1&referrer=https%3A%2F%2Fwww.google.com&amp_tf=From%20%251%24s&ampshare=https%3A%2F%2Fwww.indiatoday.in%2Findia-today-insight%2Fstory%2Fnirbhaya-case-a-game-of-petitions-1643124-2020-02-04

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