INTERNATIONAL STANDARDS ABOLISHING THE DEATH PENALTY

The International Covenant on Civil and Political Rights (ICCPR) does not require the abolition of the death penalty (UN General Assembly Resolution 2200 A (XXI) of 16 December 1966. Entered into force on 23 March 1976). Since the adoption of the ICCPR, however, steps have been taken to develop a legally binding instrument that does require the abolition of the death penalty. Accordingly, the UN has adopted the Second Optional Protocol to the ICCPR, which abolishes the death penalty during peacetime (UN General Assembly Resolution 44/128 of 15 December 1989. Entered into force on 11 July 1991). Article 2 of the Second Optional Protocol provides that no reservation is admissible except for reservations made at the time of ratification or accession that provide for the application of the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime.

Thirty-four OSCE participating States have ratified the Second Optional Protocol.

INTERNATIONAL STANDARDS RESTRICTING THE USE OF THE DEATH PENALTY

The ICCPR, which is of a legally binding nature, does not require the abolition of the death penalty. Article 6 of the ICCPR provides for the right to life but recognizes the death penalty as a permissible exception to the right to life. The text of the ICCPR provides that no one shall be deprived of the right to life arbitrarily and lists a number of specific restrictions and limitations on the use of the death penalty. Article 6(2) provides that:

• The death sentence may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime;
• The death sentence may be imposed only in a manner not contrary to the provisions of the ICCPR, and the death penalty may be carried out only pursuant to a final judgement rendered by a competent court;
• Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence;
• The death sentence shall not be imposed for crimes committed by persons below 18 years of age and shall not be carried out on pregnant women.

The limitations set out in Article 6(2) have been interpreted by the Human Rights Committee in its Concluding Observations on State Party Reports, in its General Comment No. 6, and in its jurisprudence on individual complaints (General Comment No. 6, adopted at the 16th session of the Human Rights Committee, 1982). In addition, the limitations set out in Article 6(2) have also been interpreted and expanded upon in documents produced by other UN bodies, in particular, in the ECOSOC Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty (ECOSOC Resolution 1984/50, adopted on 25 May 1984) and in the annual resolutions of the Commission on Human Rights on the Question of the Death Penalty (The most recent is Resolution 2004/67, April 2003). The following is a brief overview of the nature of the restrictions set out in Article 6(2) on the basis of the documentation produced by the above-mentioned bodies. (Unless otherwise indicated, the documents referred to in the following overview are not of a legally binding nature).

Most serious crimes

General Comment No. 6 states that the term “most serious crimes” must be read restrictively to mean that the death penalty should be an exceptional measure. The ECOSOC Safeguards specify that the scope of the crimes punishable by the death penalty should not go beyond intentional crimes with lethal or other extremely grave consequences. The Human Rights Committee has gone further than this, stating that the imposition of the death penalty for crimes that do not result in loss of life would be contrary to the ICCPR (CCPR/C/79/Add. 25, 3 August 1993). Resolution 2004/67 of the Commission on Human Rights states that the death penalty should not be imposed for non-violent acts such as financial crimes, non-violent religious practice or expression of conscience, or sexual relations between consenting adults.

In a manner not contrary to the provisions of the ICCPR and pursuant to a final judgement rendered by a competent court

States parties are obliged to observe rigorously all the fair-trial guarantees set out in Article 14 of the ICCPR. The Human Rights Committee is of the opinion that a violation of the right to life would result from an execution following a trial that fails to ensure the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defence, and the right to review by a higher tribunal (General Comment No. 6). The ECOSOC Safeguards and Resolution 2004/67 of the Commission on Human Rights also state that all legal proceedings should conform to Article 14 of the ICCPR. The Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions has stated that the process leading to the imposition of the death penalty must also comply with Articles 9 and 15 of the ICCPR.

Persons below the age of 18 and pregnant women

The prohibition on the death sentence for crimes committed by persons below the age of 18 is reiterated in the Convention on the Rights of the Child (CRC), which is of a legally binding nature (Art. 37 of the Convention on the Rights of the Child, UN General Assembly Resolution 44/25 of 20 November 1989. Entered into force on 2 September 1990). This principle has been reaffirmed by the ECOSOC Safeguards and Resolution 2004/67 of the Commission on Human Rights. In addition, the Sub-Commission on the Promotion and Protection of Human Rights has stated that the imposition of the death penalty for crimes committed by persons below the age of 18 is contrary to customary international law (Resolution 2000/17, 17 August 2000). The prohibition on the execution of pregnant women was reaffirmed by a number of resolutions of the Commission on Human Rights and the ECOSOC Guidelines. The Human Rights Committee has expressed the opinion that the prohibition on the execution of children and pregnant women represents a norm of customary international law. On this basis, the Human Rights Committee has stated that states parties may not reserve the right to execute children or pregnant women. (See General Comment No. 24, adopted at the 52nd session of the Human Rights Committee, 1994)

Although Article 6(2) prohibits the execution of only two specific categories of persons, this list should not be considered exhaustive. Indeed, the ECOSOC Safeguards extend this restriction to the elderly, mothers with dependent infants, the insane, and the mentally disabled.

Right to seek pardon or commutation

The term “pardon” means the removal of the death sentence and release, while the term “commutation” means the substitution of the death sentence with a less severe sentence. The right to seek pardon or commutation has been reaffirmed by General Comment No. 6, the ECOSOC Safeguards, and Resolution 2004/67 of the Commission on Human Rights.

Finally, it should be noted that the use of the death penalty also raises issues under Article 7 of the ICCPR on the prohibition of torture and inhuman or degrading treatment. The Human Rights Committee has found violations of Article 7 in certain cases concerning detention on death row, the method of execution, and the issuance of execution warrants to mentally incapable persons.

Posted in November 2004.