DEATH PENALTY: ANNIHILATION THROUGH ORIENTATION BY UNITED NATIONS

Sneharghya Saha
Avik Gupta

Once, Salmond expressed that a society that did not perceive resentment or grievance over outrageous treatment would not have a successful justice system. Even Roussoeu sensed that a responsible individual should not complain when the sovereign requires the life of an individual. If the perpetrator was beyond salvation, death is the only fitting punishment according to his application.[1] Death penalty is the denial of the most significant violation of the fundamental human rights since it contravenes the right to life which has been widely approved and reckoned by nation states as a fundamental human rights law. The UN General Assembly, which represents all the recognised nations, has signalled for a termination of the death penalty and human rights groups accept that their use is in defiance of basic human rights principles. The Convention is progressing quickly towards a stance in favour of global abolition.[2]

Article 3 of the Universal Declaration of Human Rights (UDHR) provides that, “Everyone has the right to life, liberty and security of person.” The United Nations (UN) Assembly has declared that capital punishment requires equal justice in the world. The process to be followed should be fair, just and reasonable.[3] So long as governments are able to extinguish lives, they possess the ability to refuse access to every other right mentioned in the Declaration. This first and most fundamental right establishes the basis on which all other rights are centred. In a landmark capital punishment judgement, U.S. Supreme Court Justice Thurgood Marshall concurred that, “The death penalty is no more effective a deterrent than life imprisonment. It is also evident that the burden of capital punishment falls upon the poor, the ignorant and the underprivileged members of society.”[4]

In 1996, United Nation Economic and Social Council urged its associates to abrogate death penalty and demanded a swift and legitimate trial to all convicts in the countries where capital punishment was retained for its application. Art. 5 of the UDHR states that no person shall be subjected to torture, abuse or punishment which is cruel, inhuman or degrading.[5] The death penalty has been observed to breach the ban on cruel, inhuman or degrading punishment and there has also been an increasing unanimity agreement that “death row syndrome” represents a violation of the universal human rights law restriction on cruelty. In fact, the death penalty is sometimes enforced in a prejudiced way, in violation of non-discrimination policy.[6] In Nelson v. Campbell[7], death row convict David Nelson filed a civil-rights case opposing the nature of the plan of execution, alleging that his special medical condition would constitute a cruel and unusual punishment if the State of Alabama carried out his execution under the current procedure. The U.S. Supreme Court unanimously concurred in favour of the defendant and ruled that Nelson’s claim concerned solely with the recommended form of execution, not his conviction or punishment, and was thus separate from a habeas corpus application.[8] The Court further argued that Nelson had a right to contest the validity of the execution protocol using the same legal method that could have been used to contest his jail conditions.[9]

The United Nations International Covenant on Civil and Political Rights (ICCPR) came into effect in 1976 after its acceptance by UNGA. It observes each individual’s inherent integrity and guarantees to foster conditions within its States parties to grant civil and political rights to be relished.[10] The Covenant presently has 74 signatories and 173 parties and six more signatories without ratification associated to ICCPR.[11] While Article 6 of ICCPR allows for the application of the death penalty in a finite manner, it also provides that “nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.” The UN Economic and Social Council approved the Safeguards guaranteeing protection of the rights of those facing the death penalty in 1984, which restricts the adoption of death penalty and safeguards those confronted with it from greater suffering.[12]

After 33 years since the acceptance of the Covenant, the UNGA approved the Second Optional Protocol to the ICCPR (“OP2-ICCPR”) and came into force in 1991 as it echoed that the death penalty is incongruous with human rights and intended for abrogating the death penalty by giving it a new impetus for the Member States which got associated to the Protocol to terminate all executions and take any steps possible to eliminate the death penalty within their jurisdictions.[13] In 2005, the U.S. Supreme Court in a landmark judgement[14] reversed the juvenile death sentence pronouncement by mentioning international human rights law in its decision, consisting of the ICCPR and the 1989 Convention on the Rights of the Child (CRC) that forbids the application of the death penalty on individuals under the age of 18.[15]

The sheer lack of potential in the countries to emanate restriction of executions has resulted in their failure to embrace and sustain the compliance to transparent cohabitation of human rights in a social forum. The same has been contended by the UN Sec. Gen. in an event on World Day and Death Penalty in 2017. His deliberation personified the concealment of the countries which have conducted executions in regular forms and violated the norms of human rights. With almost 170 countries around the world who have either abolished death penalty or has imposed a moratorium on it, makes it dicey as to those nations who have just ignored to abide by the same.[16] Countries who have successfully ensured an initiative to abolish the death penalty marks an example of urgency to those who have not still yet done the same. With 85 countries ratifying the second optional protocol of International Covenant on Civil and Political Rights (ICCPR), 1966, it is now step by step a procedure towards achievement of the abolition of the death penalty.

While the Human Rights Committee has undergone such efforts of prohibiting execution by deportation or extradition of the individuals, the nations have the obligation to maintain the decorum of human rights by abiding the same. The argument which sets forth in to the domain is that of the abolitionist and receptionist theory. The abolitionist theory, suggests that death penalty cannot be a form of justice to be sought for in a civil criminal jurisprudence.  To curtail someone’s right to life and dignity is not something a viable solution. However, it is also to be taken into account that the discrimination which is caused due to the imposition of the death penalty is rather severe. The effect of death penalty being deterrent, some countries initiate to undergo a moratorium to analyze the rate of crime.[17] The retentionist theory proclaims that death penalty prevents from future crimes. However, there is no cogent analysis to make a belligerent affirmation of the same.

The destination of abolition of death penalty is not very far, as the Human Rights Committee and the ICCPR have initiated protocols to adhere for such practices. Universal custom is likewise turning out to be progressively abolitionist, with more states seeing capital punishment as being conflicting with human rights principles. While capital punishment stays legitimate at global law at the present time, all things considered, progress towards cancelation will proceed. Contentions for holding capital punishment frequently seem to depend on doubtful charges, for example, its hindrance impact, or spotlight exclusively on the contention that the choice to cancel or hold the death penalty stays inside national sway.


[1] DEATH PENALTY VIS-A-VIS HUMAN RIGHTS (May 24, 2020, 16:47PM), https://sg.inflibnet.ac.in/jspui/bitstream/10603/39088/10/10_chapter%204.pdf

[2]The Death Penalty is a Human Rights Violation: An Examination of the Death Penalty in the U.S. from a Human Rights Perspective (May 25, 2020, 12:22PM), https://ccrjustice.org/files/CCR%20Death%20Penalty%20Factsheet.pdf

[3]International Scenario of United Nation Charter. (1948) (May 25, 2020, 14:49PM) http://www.un.org/en/documents/udhr/

[4] Furman v Georgia, 408 US 238 (1972); 92 S. Ct. 2726 (1972); (1972) U.S. LEXIS 169 (USA).

[5]CAPITAL PUNISHMENT ON RAREST OF RARE CASE: IS IT JUST AND FAIR? (May 25, 2020, 19:03PM) http://docs.manupatra.in/newsline/articles/upload/dfa397d3-b539-419d-a79b-28d367cfee09.pdf

[6]The Death Penalty is a Human Rights Violation: An Examination of the Death Penalty in the U.S. from a Human Rights Perspective (May 27, 2020, 17:27PM), https://ccrjustice.org/files/CCR%20Death%20Penalty%20Factsheet.pdf

[7]Nelson v Campbell, 541 US 637 (2004) (USA).

[8]Lethal Injection Cases (May 27, 2020, 20:42PM), https://deathpenaltyinfo.org/stories/lethal-injection-cases

[9]Nelson v. Campbell (May 27, 2020, 21:02PM), https://www.oyez.org/cases/2003/03-6821

[10]SUMMARY: INTERNATIONAL CONVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR) (May 27, 2020, 22:55PM), https://ccla.org/summary-international-covenant-on-civil-and-political-rights-iccpr/

[11]STATUS OF RATIFICATION INTERACTIVE DASHBOARD (May 28, 2020, 10:26AM), https://indicators.ohchr.org/

[12]Death Penalty (May 28, 2020, 11:54AM), https://www.ohchr.org/EN/Issues/DeathPenalty/Pages/DPIndex.aspx

[13]HUMAN RIGHTS AND THE DEATH PENALTY (May 28, 2020, 16:40PM), file:///C:/Users/Admin/Downloads/international_fact_sheet_2012%20(11)%20(1).pdf

[14]Roper v Simmons, 543 US 551 (2005); 125 S. Ct. 1183 (2005); (2005) U.S. LEXIS 2200 (USA).

[15]The Death Penalty is a Human Rights Violation: An Examination of the Death Penalty in the U.S. from a Human Rights Perspective (May 29, 2020, 20:29PM), https://ccrjustice.org/files/CCR%20Death%20Penalty%20Factsheet.pdf

[16] ‘The death penalty has no place in the 21st century’ – UN chief Guterres,(24th May, 2020, 10:05), https://news.un.org/en/story/2017/10/56812-death-penalty-has-no-place-21st-century-un-chief-guterres

[17]Roger Hood, ‘Introduction – the importance of abolishing the death penalty’ in Death Penalty: Beyond Abolition (Council of Europe Publishing: Strasbourg, 2004), 13-22

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