A Review of the Progressive Development of International Human Rights Framework on Capital Punishment

By Michelle Miao

Michelle Miao is a British Academy Postdoc Research Fellow at the School of Law, University of Nottingham. She was a Global Research Fellow at New York University School of Law and a Howard League Postdoc Fellow at University of Oxford’s Law Faculty.

Published November/December 2015
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1.     Introduction

It has been widely recognized that the restriction of the death penalty has found its way into positive international human rights law. Although historically the death penalty was essentially a state’s own choice of a suitable punishment for the most heinous criminal wrongdoings, it is no more restricted by transnational norms as well as domestic policies today. In some states, the death penalty has become primarily a human rights issue, in lieu of an exclusive criminal justice topic. As a general trend, the historical arch of the administration of the death penalty has bent towards human rights worldwide. The human rights standard-setting, as guarantee to protect the rights of those facing the death penalty, has become a now well-established area of international law. Human rights standards, guidelines and principles serve as principal forces which influence, curtail, and limit retentionists’ practices on the death penalty.

The normative framework of the international human rights limiting capital punishment includes, among others, the UN-based human rights instruments, notably the International Bill of Human Rights, and the three regional human rights legal regimes. Important developments during the past few decades concerning capital punishment took place within intergovernmental organizations, international courts and human rights monitoring bodies. Excluding vulnerable groups of persons from the death penalty, restricting capital punishment to an ever-shrinking death-eligible offence list of “the most serious crimes”, enhancing due process safeguards for the administration of the death penalty, and securing the right to petition on clemency, commutation and pardon, inter alia, are the thematic constituents of this body of international human rights law.

2.     Minimum Standards Established by International Human Rights Declarations and Treaties

The norm-generating capacity of multilateral treaties has been well established. International treaties and declarations, albeit not prohibiting the death penalty, allow for the ultimate creation of abolition norms which envision future expansive interpretation of the texts and languages of the present-day human rights instruments on capital punishment.[1] Although the abolition of capital punishment has not taken on the characteristics of customary international law or Jus Cogens,[2] the limitation of its application has been widely accepted and recognized by various international human rights instruments. In the midst of this jurisprudence evolution towards eventual abolition, it appears that universal customary norms have emerged to gradually restrict states from using the death penalty.

On the international platform, the abolition and restriction of capital punishment are built upon the normative framework of UN-based international declarations, treaties and conventions, General Assembly and the Economic and Social Council (hereinafter the “ECOSOC”) resolutions. The body of international treaties includes: article 3 (the right to life) and article 5 (the prohibition against torture or to cruel, inhuman or degrading treatment or punishment) of the Universal Declaration of Human Rights,[3] article 6 of the International Covenant on Civil and Political Rights (hereinafter the “ICCPR”), The Second Optional Protocol to the ICCPR,[4] articles 6 and 37 (a) of the Convention on the Rights of the Child, and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

During the past decades, various UN bodies, including, most importantly, the General Assembly, Human Rights Council and the ECOSOC, have adopted various reports, decisions and resolutions regarding the issue of the death penalty. Take the General Assembly as an example; it adopted a range of resolutions, calling on all states that still retain the death penalty to observe a moratorium on executions with a view to abolishing the death penalty[5]. In addition, the General Assembly also adopted resolutions on extrajudicial, summary or arbitrary executions since mid-1990s and published reports of special rapporteurs and representatives entitled “promotion and protection of human rights”. Last but not least, the General Assembly has regularly considered the matter of country-specific use of the death penalty in its resolutions concerning situations of human rights in a few countries, including, the Democratic People’s Republic of Korea, Iran, Iraq and Congo since the mid-1990s.

The corpus of UN-based resolutions also includes those adopted by the Commission on Human Rights on the question of the death penalty, the last of which was resolution 2005/59 of 20 April 2005. The successor, Human Rights Council, published a range of decisions and resolutions on the topic of the death penalty. These include its decision 18/117 of 28 September 2011 on reporting by the Secretary-General on the question of the death penalty, Council resolution 22/11 of 21 March 2013 on a panel on the human rights of children of parents sentenced to the death penalty or executed, Council decision 22/117 of 21 March 2013 on a high-level panel discussion on the question of the death penalty, and Council resolution 26/2 deciding to convene biennial high-level panel discussions to further exchange views on the question of the death penalty, the first of which to be held at the twenty-eighth session and to address regional efforts aiming at the abolition of the death penalty and the challenges faced in that regard[6].

The ECOSOC resolutions include, but are not limited to: resolution 1984/50 of 25 May 1984, setting out in its annex the Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty (hereinafter the Safeguards); resolution 1985/33 of 29 May 1985; resolution 1989/64 of 24 May 1989; resolution 1990/29 of 24 May 1990; resolution 1990/51 of 24 July 1990, recommending that the quinquennial reports of the Secretary-General on capital punishment should also cover the implementation of the Safeguards; resolution 1996/15 of 23 July 1996, calling upon retentionist states to apply effectively the Safeguards; resolution 2000/17 of 17 August 2000 of the Sub-Commission on the Promotion and Protection of Human Rights on international law and the imposition of the death penalty on those aged under 18 at the time of the commission of the offence;[7] and Council decision 2005/247 of 22 July 2005 requesting the secretary-general to prepare additional quinquennial reports on capital punishment for the consideration of the Commission on Crime Prevention and Criminal Justice and, upon request, the Commission on Human Rights.

2.1.          The International Covenant on Civil and Political Rights

ICCPR, in its Article 6, delineates a set of safeguards as the parameters to ensure that the death penalty would not be imposed unjustly or capriciously. The “inherent” right to life was enshrined in Paragraph 1 of Article 6 as a jus cogens norm, subject to the exception of the death penalty prescribed in Article 6(2). Article 6(1) of the ICCPR also lays down the principle of legality: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”

The term of “arbitrarily,” however, has been surrounded by great controversies since it was first proposed during the eighth session of the Commission on Human Rights studying the draft of the ICCPR.[8] The term leant itself to different interpretations.[9] Different methods of interpretation lead to various implications. Some delegates believe the term would allow interpretation according to extremely subjective, extra-legal standards, such as “natural justice.” Some argue the term was not defined, ambiguous, confusing, and no consensus on its meaning had emerged. But others hold the belief that this term will acquire a specific meaning over time, according to the living contexts of societies.[10] According to General Comment No. 6 issued by the UN Human Rights Commission,[11] the right to life “should not be interpreted narrowly.”[12]

Historical interpretation suggests that the term was accepted by all parties as a product of compromise to meet their positions which could not accept paragraph one without qualification.[13] A second way of reading the text indicates that the term was introduced to cover other possible exceptions to the right to life which are not explicitly mentioned in the Covenant. Because delegates cannot reach a common ground on whether and how many exceptions should be announced in the Covenant, the use of “arbitrarily” is a good solution to circumvent these disputes. A third open approach to expansive interpretation foresees the possibility of gradually incorporating the cruel and inhuman death penalty practices into the ever-growing range of “arbitrary” and thus subject the death penalty regime to prohibition, envisaging future evolution of jurisprudence regarding the restriction of the death penalty into a body of customary international norms.

The provisions in Article 6(2) of ICCPR set the detailed legal framework restricting the administration of the death penalty according to international human rights standards. It is stipulated that the gravity and scope of death-eligible offences should be “the most serious crimes.” This vaguely defined term, again, reflects a lack of consensus by states on classifying the gravity of a crime when the Covenant was drafted. Meanwhile, it allows the list of capital crimes to be progressively shortened.[14]

Article 6(2) proceeds to affirm the criminal law principle of non-retroactivity that prevents the application of the death penalty ex post facto. This means that the state cannot punish a person for an offence which was not “the most serious crime” at the time when the act was performed. Coupled with jurisprudence emerged from case law, e.g. the advisory opinion of the American court on Human Rights,[15] the retroactivity clause invites progressively narrowing down the list of crimes subject to the death sentence. Article 6(2) of ICCPR reads:

“In countries which have not abolished the death penalty, sentence of death 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 and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court.”

Article 6(4) reads: “Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.”

Pursuant to General Comment No. 6 issued by the UN Human Rights Commission, the procedural guarantees prescribed in article 6(2) of the ICCPR “must be observed, including the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defendant, and the right to review by a higher tribunal. These rights are applicable in addition to the particular right to seek pardon or commutation of the sentence.” In other words, article 14, a general provision under the Covenant, has been tacked onto article 6(2), a specific clause regarding the application of the death penalty. It constitutes a breach of the Covenant not only if any requirement under article 6 is violated, but also if any of the article 14 provisions is offended.[16]

A study of the Article 6(5) travaux préparatories suggests that the expansive interpretation approach should be adopted to broaden the scope of vulnerable groups, e.g. juveniles, pregnant women, the aged, mentally retarded and mentally ill, which could be exempted from capital punishment. The list of specific vulnerable groups are therefore non-exhaustive in nature, because the flexible term of “arbitrarily” could always be used to accommodate the ever-changing purpose of the Covenant in light of current thinking and values in a living society. Article 6(5) reads:

“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.”

2.2.         Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty

The annex to the ECOSOC Resolution 1984/50 of 25 May 1984 and the provisions regarding the implementation of the guidelines contained in Council Resolutions 1989/64 of 24 May 1989 and 1996/15 of 23 July 1996 called upon Member States in which the death penalty had not been abolished to apply effectively the Safeguards.[17] Specific safeguards as well as more detailed and comprehensive accounts of restrictions on the death penalty set out in these documents are subject to interpretation by the Committee on Crime Prevention and Control. In addition, the Secretary-General of the United Nations has been charged with producing quinquennial reports on the status of capital punishment world-wide and implementation of the Safeguards under the auspices of the Center for International Crime Prevention at the United Nations Office at Vienna.[18] The latest in this series, the ninth report (E/2015/49) finds a marked trend towards abolition and restriction of the use of capital punishment in most countries continues.[19]

A summary of the safeguards is as below: the death penalty should not be imposed but the most serious crimes and the notion of “most serious crimes” does not go beyond intentional crimes with lethal or extremely grave consequences; the death penalty should be applied retroactively if the law specifying capital punishment had not been in effect prior to the commission of the offence; juveniles, pregnant women, young mothers and the insane should not be sentenced to death, and especially executed; capital punishment may only be imposed where the guilt of the person charged is based on clear and convincing evidence leaving no room for an alternative  explanation of the facts; capital punishment can be imposed only pursuant to a fair trial rendered by an independent and impartial competent court including adequate legal assistance at all stages of the proceedings; all persons sentenced to death have the right to seek pardon or commutation of sentence; all persons are entitled to mandatory right to be review by a higher tribunal; all persons are executed as long as any related legal procedure, at the international or at the national level, is pending; and the method of execution should inflict the minimum possible suffering.

3.     Regional Efforts to Build Human Rights Standards on Capital Punishment

A considerable body of human rights law, substantive and procedural, statutory and case law, concerning the restriction and abolition of the death penalty has developed over the year among regional organizations in Europe, Africa and America. The human rights instrumental framework which directly bears on the restriction of the death penalty is composed of regionally binding treaties, conventions and protocols, “soft” declarations, guidelines and principles, and norms reflecting the opinio juris which take on the status of customary law. The geographical institutional framework covers inter-state legislative, executive judicial institutions and various NGOs.

3.1.         Europe

Europe is today the only death penalty free region in the world. All the Council of Europe’s 47 member states have either abolished capital punishment or instituted a moratorium on executions.[20] The death penalty has been on the retreat in Europe in the second part of the twentieth century. By 1989, capital punishment has been abolished de facto among the contracting states of the European Convention, although a few states[21] still maintain the death penalty laws.[22] The executions have effectively ceased and all European states have now declared their commitment to abolition.[23] The European human rights architecture regarding the restriction and rejection of the death penalty is composed of the Council of Europe (CoE),[24] the European Union (EU), the European Court of Human Rights (ECtHR),[25] Organization for Security and Co-operation in Europe (OSCE),[26] and instruments as well as jurisprudence associated with these organizations.

In 1971, the United Nations General Assembly in Resolution 2857 (XXVI) affirmed the desirability of abolishing the death penalty in all countries. As for international abolitionist treaties, the Council of Europe took the first steps in 1983 by adopting Protocol No. 6 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) concerning the Abolition of the Death Penalty, which became the first legally-binding instrument abolishing the death penalty in peacetime. In the framework of the UN a Second Optional Protocol to the ICCPR aiming at the abolition of the death penalty was adopted in 1989.

In 1989, the CoE has made abolition of the death penalty a prerequisite for membership, with the active role and political pressure from the Parliamentary Assembly. In 2002, another important step was taken with the adoption of Protocol No. 13 on the abolition of capital punishment in all circumstances, even for acts committed in time of war. As a result, there has not been a single execution in any of the member states of the Council of Europe for 10 years. Across Europe, only Belarus – which is not a member of the organization – still uses capital punishment.[27]

Besides striving towards the universal abolition of the death penalty within its own sphere during the past decades, Europe-based intergovernmental institutions have continued contributing vigorously to oppose capital punishment and export their philosophies to third countries through adoption of resolutions, awareness-raising activities and publications, supporting projects in other countries, providing training for States that still retain the death penalty. With the aims to calling for a reduction in the use of capital punishment and ensuring its application is in line with certain minimum standards and with maximum transparency, the EU has served as a key player in the international abolition movement. For several years, within the framework of the United Nations and other regional bodies, the EU has in particular called for countries where the death penalty still exists to restrict gradually the number of crimes punishable by death and to establish a moratorium on executions.

Furthermore, the EU works in collaboration with non-governmental organizations (NGOs), in particular through the financial instrument for the promotion of democracy and human rights on local grassroots levels. This policy was reaffirmed by the Solemn Proclamation of the Charter of Fundamental Rights at Nice in December 2000. The other EU initiatives include: presenting its objectives in the context of its dialogue with third countries, reporting on human rights, promoting the ratification of international instruments and bilateral and multilateral cooperation with the aim of establishing a fair and impartial judicial process.[28]

The EU Charter of Fundamental Rights, which became legally binding by virtue of the Treaty of Lisbon on 1 December 2009, states that no one shall be condemned to the death penalty, or executed in its Article 2. Article 3 states that “everyone has the right to respect for his or her physical and mental integrity.” Article 4 prohibits torture, inhuman or degrading treatment or punishment and Article 19(2) forbids removal, expel or extradition to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment. A set of objectives, which form an integral part of the EU’s human rights policy, are explicitly defined under the EU’s Action Plan for Human Rights and Democracy[29] and its 2013 revised version of EU Guidelines on Death Penalty:

·       “To work towards universal abolition of the death penalty as a strongly held policy agreed by all EU Member States

·       Where the death penalty still exists, the EU will,

o   Advocate the immediate establishment of a moratorium on the use of the death penalty with a view to abolition.

o   call for its use to be progressively restricted, including by reductions in the number of offences for which the death penalty will be implemented,

o   advocate that it be applied respecting the minimum standards,

o   seek accurate information about the use of the death penalty including the offence it is used for, the number of persons sentenced to death, the number of executions actually carried out, the number of persons under sentence of death, the number of death sentences reversed or commuted on appeal and the number of instances in which clemency has been granted, and to include information on the extent to which the minimum standards are incorporated in national law,

o   where appropriate, seek disaggregated data on the nationality, sex, age, racial or ethnic origin, religion or belief, sexual orientation and other status, including disability, of persons executed or facing the death penalty.” [30]

The Office of Democratic Institutions and Human Rights of the Organization for Security and Cooperation (OSCE) produces an annual background paper on the use of the death penalty in OSCE member States. And in 2009[31] and 2010,[32] the OSCE adopted resolutions on the death penalty. The OSCE Parliamentary Assembly, through its resolutions adopted at the Sixteenth Annual Session held in Kiev in July 2007, which “reaffirms the value of human life and calls for the abolition in the participating States of the death penalty, replacing it with more just and humane means of delivering justice.” The OSCE has called on the two OSCE participating States that still retain the death penalty in practice, Belarus and the United States of America, to adopt a moratorium on all executions, followed by the complete abolition of the death penalty at the 22nd annual OSCE PA session held in Istanbul in 2013,[33] and at its 23rd annual session in Baku in 2014.[34] The OSCE also expressed its concern about informal extraditions of foreign citizens to countries where they are at risk of the death penalty.

3.2.         America

The Inter-American human rights system was born with the adoption of the American Declaration of the Rights and Duties of Man in Bogotá, Colombia in 1948, which affirms the right to life.[35] The American Convention on Human Rights (hereinafter American Convention), which was adopted later in 1969 and entered into force in 1978, provides “authoritative” interpretation of the principles of the American Declaration.[36] The Convention also creates the Inter-American Court of Human Rights and defines the functions and procedures of both the Inter-American Commission on Human Rights (IACHR)[37] and the Court. Article 4(1) of the American Convention on Human Rights states that “Every person has the right to have his life respected.… No one shall be arbitrarily deprived of his life.” It also laid down some minimum human rights standards for the application of the death penalty.[38] Similar to Article 6 of the ICCPR, but it specifically prohibits the extension or re-introduction of the death penalty, and adds to this group of protected persons anyone over the age of 70. Article 2 of the Inter-American Convention to Prevent and Punish Torture (IACPPT), signed in 1985, describes torture “as personal punishment…as a penalty.”[39]

Adopted in 1990, Protocol to the American Convention on Human Rights to Abolish the Death Penalty consecrated the definitive abolition of the death penalty. The Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (hereinafter Convention of Belem do Pará), approved in 1994, outlaws imposition of the death penalty on women. It states, in Article 3, that “Every woman has the right to be free from violence in both the public and private spheres” and, in Article 4(a), that “Every woman has…the right to have her life respected.” It is thus implicit that State should refrain from the practice of violence against women, including the application of the death penalty to women. 

Various institutions, including the Organization of American States (OAS),[40] the Inter-American Court of Human Rights (IACHR),[41] and the Intern-American Juridical Committee[42] are actively involved in developing regional norms restricting and reducing the scope and application of capital punishment. General Assembly of OAS produces various resolutions regarding recent actions of states regarding multilateral treaties regarding the death penalty.

Through case law, the Inter-American Court of Human Rights affirms that the imposition of the death penalty should be limited through an irreversible and gradual process;[43] it also ruled that criminal law providing for capital punishment as a mandatory sentence for specific crimes were contrary to the Convention.[44] Created in 1959, the IACHR carries out on-site visits to observe and investigate specific situations pertaining to the restriction and abolition of the death penalty in a country. Relevant documents generated by the IACHR include annual reports, specific reports, resolutions and press releases. The IACHR also possesses additional faculties which pre-date and are not derived directly from the Convention, such as the processing of cases involving countries which are still not parties to the Convention.

The efforts in the American hemisphere are already bearing fruit. General Assembly of OAS adopted resolutions to recognize the following progress of the inter-American human rights system. Mexico, Argentina and Chile deposited their instruments of accession to the Protocol to the American Convention on Human Rights to Abolish the Death Penalty respectively on August 20, 2007, on September 5, 2008 and on October 16, 2008.[45]

3.3.         Africa

African Commission on Human and Peoples’ Rights, African Court on Human and Peoples’ Rights and African Union (AU) are the pillars in the African continent to promote abolition and restriction of the death penalty. Entrusted by the African Charter on Human and Peoples’ Rights (or the Banjul Charter, hereinafter the African Charter) with a treaty monitoring function, ACHPR urges Member States to envisage a Moratorium on the Death Penalty by establishing a Working Group on the Death Penalty.[46] The most recent 44th Ordinary Session of African Commission on Human and Peoples’ Rights adopted Resolution Calling on State Parties to Observe the Moratorium on Death Penalty.[47]

The restriction and abolition of the death penalty in Africa as a region has been largely defined through the African Charter.[48] Similar to those that already existed in Europe (European Convention on Human Rights) and America (American Convention on Human Rights); the African Charter emerged under the aegis of the Organization of African Unity (since replaced by the African Union). The African Charter has been pivotal in influencing the development of regional standards on human rights on the continent. Towards the end of 2008, at least 27 State Parties to the African Charter have abolished the death penalty de jure or de facto.[49] Article 4 of the African Charter recognizes the right of everyone to life, and Article 5(3) of the African Charter on the Rights and the Welfare of the Child which guarantees the non-application of death penalty for crimes committed by children.

Pursuant to article 45 of the African Charter, oversight and interpretation of the African Charter is the task of the African Commission on Human and Peoples’ Rights, which was set up in 1987 and is now headquartered in Banjul, Gambia. A protocol to the African Charter was subsequently adopted in 1998 whereby an African Court on Human and Peoples’ Rights was to be created. The protocol came into effect on 25 January 2005.

The death penalty clause in Article 4 of the African Charter echoes article 6(1) of the ICCPR, allows a dynamic interpretation of the term “arbitrary”. Article 4 can be interpreted by the Commission in light of Universal Declaration, other UN-generated norms and even instruments in other African countries. Therefore, Article 4 of the African Charter can be interpreted as a living instrument, adapting to both evolving jurisprudence internationally and in Africa on the restriction and abolition of the death penalty.

For instance, the international human rights standards enshrined in ICCPR and the Safeguards could be adopted to restrict the practice of capital punishment in the African region. In a similar vein, in 1995 the South African Constitutional Court in a thorough review of international standards declared the death penalty to be against the post-apartheid constitution and a violation of the prohibition against cruel and inhuman punishments. It is possible the Commission will take this regional death penalty jurisprudence into consideration for the eventual abolition of the death penalty in the future.

Article 4 of the African Charter reads: “Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.”

Article 45(3) of the African Charter states that “The functions of the Commission shall be: Interpret all the provisions of the present Charter at the request of a State Party, an institution of the OAU or an African Organization recognized by the OAU.”

Article 60 of the African Charter states that “The Commission shall draw inspiration from international law on human and peoples’ rights, particularly from the provisions of various African instruments on human and peoples’ rights, the Charter of the United Nations, the Charter of the Organization of African Unity, the Universal Declaration of Human Rights, other instruments adopted by the United Nations and by African countries in the field of human and peoples’ rights as well as from the provisions of various instruments adopted within the Specialized Agencies of the United Nations of which the parties to the present Charter are members.”

4.     Thematic Narrative of the International Human Rights Standards on the Restriction of the Death Penalty

Prohibition of the death penalty has not gained international consensus so far; however, its use is severely restricted by international norms and standards. Where states still maintain the death penalty, for the protection of the rights of those facing the death penalty, it is crucial to respect international human rights standards, in particular the following minimum standards, as set out in international treaties and the guidelines established by the ECOSOC in 1984. The ECSOC further elaborated the standards in its subsequent resolutions 1989/64 and 1996/15.[50] Taking into account of all the above standards in light of up-to-date progressive restriction to the use of capital punishment, the rest of this article surveys five major themes in the remaining part in depth. The themes include the scope of the crimes which are death punishable, mandatory death sentences and principle of legality, specific groups excluded from capital punishment, procedural safeguards and extradition, expulsion and deportation.

4.1.         Imposing Capital Punishment Only for “the Most Serious Crimes”

This sub-section examines the travaux of the ICCPR, surveys the jurisprudence of the Human Rights Committee, and analyses the comments by the Secretary-General, principles declared by the ECOSOC and the Commission on Human Rights. It will endeavor to answer the following questions: what are the international human rights standards regarding the scope of offences for which death may be sentenced and executed in countries still retain the death penalty de jure or de facto? Whether the maximum punishment is proportionate to a criminal conduct act which is deemed so grave in nature that it detriments society and infringes upon universal values recognized by all human beings?

One of the key initiatives to restrict capital punishment progressively is to reduce the number of offences for which it may be imposed. Limiting the range of crimes in domestic legislations enables a country to move from a retentionist[51] position to an abolitionist for ordinary crimes,[52] a de facto abolitionist,[53] and finally an abolitionist.[54] Existing international human rights standards regarding the range of death-eligible crimes are stipulated in various instruments, resolutions and judgements, e.g. the ICCPR, the ECOSOC Safeguards Guaranteeing Protection of those Facing the Death Penalty, resolutions and judgements adopted by Human Rights Committee.

Defining the ambit of death-eligible offences in international jurisprudence is a process of interpretation the wording of Article 6(2) of the ICCPR, which stipulates that “in countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes….”[55] The same requirements are found in multiple regional human rights instruments,[56] such as Article 4 of the American Convention on Human Rights, which reads that the death penalty “may be imposed only for the most serious crimes…”[57] and resolutions of African Commission on Human and People’s Rights, which called upon retentionist stating to “limit the imposition of the death penalty only to the most serious crimes.”[58]

Three main approaches of treaty construction exist in international law. The first “intentions of the parties” approach emphasizes on the intentions of the contracting parties; the second “textual” method tries to establish what the text means according to the ordinary or apparent signification of its terms; the third looks to the general purpose of the treaty instead a particular clause. Any true interpretation of a treaty takes into account all three elements, considering various elements such as text, statutory purpose, public policy, legislative history etc.[59] The Vienna Convention on the Law of Treaties (VCLT) declares that a treaty provision shall be interpreted in accordance with the ordinary meaning to be given to its terms, placed in their context and in the light of the treaty’s object and purpose.

The first way to clarify the intentions of ICCPR is to analyse what the “most serious crimes” means according to the ordinary or apparent signification of this phrase. The wording of “most serious crimes” is an “open texture,” which is vaguely and broadly phrased and opens to a wide variety of possible interpretations. As Roger Hood pointed out, it is a “vague, relativistic and ambiguous formulation.”[60] However, we can examine the original intentions of the contracting parties by referring to the official record of the drafting process of ICCPR. The travaux préparatoires of the ICCPR suggests that the concept of “most serious crimes” invites criticism even during the 5th (1949), 6th (1950) and 8th (1952) sessions of Commission on Human Rights, as lacking precision and allowing varying interpretation by different states. A proposal (E/CN. 4/SR.97, P.4) made that “political crimes” should not entail the death penalty was withdrawn; and proposals (E/CN. 4/385 (IND) and E/CN. 4/365 (PI)) to include the language of “only under extraordinary circumstances” for the imposition of the death penalty for the “most serious crimes” was not voted on for unspecified reasons. [61]

It seems safe to infer that the “most serious crimes”, proposed by US preventatives, worded in such general terms, was adopted as a compromise among contracting parties. This conclusion is confirmed by looking to the general purpose of ICCPR. Article 6(6) states that “nothing in this article shall be invoked to delay or prevent the abolition of capital punishment by any State Party to the present Covenant.” Moreover, the Chairman of the Working Party on the drafting of Article 6 stated that “it is interesting to note that the expression: ‘in countries which have not abolished the death penalty’ was intended to show the direction in which the drafters of the Covenant hoped that the situation would develop.”[62] Therefore, the term is a product only of its time; nothing more specific than a ‘marker’ for the policy of moving towards abolition through restriction.[63]

It is difficult and impossible to assume that there will be a universally acceptable enumeration of offences for which capital punishment could be imposed. Even in one jurisdiction, it has been proven to very challenging task.[64] To achieve “the progressive restriction of the number of offences for which the death penalty might be imposed, with the desirability of overall abolition,”[65] General Comment 6 opined that the “most serious crimes” must be read restrictively to mean that “the death penalty should be a quite exceptional measure.”[66] In addition, Article 1 of the ECOSOC Safeguards (1984) reaffirms that “in countries which have not abolished the death penalty, capital punishment may be imposed only for the most serious crimes”‘, and it further stipulates that “their scope should not go beyond intentional crimes with lethal or other extremely grave consequences.” Again, the problematic term of “other extremely grave consequences” opens to multiple interpretations and is in need for further construction and definition.

Subsequent development of international jurisprudence indicates a dynamic interpretation process in an ever more restricted way. The Commission on Human Rights, in its 1999 resolution, echoing the views of the Special Rapporteur on extrajudicial, summary or arbitrary executions, urged States not to impose the death penalty for non-violent financial crimes or for non-violent religious practice or expression of conscience.[67] In 2000, a report of the United Nations Secretary General defined “most serious crimes” as “life-threatening, in the sense that this is a very likely consequence of the action.”[68] The UN Commission on Human Rights further excluded sexual relations between consenting adults by adoption of the Resolution 2004/67 – Question of the death penalty:

“The notion of ‘most serious crimes’ does not go beyond intentional crimes with lethal or extremely grave consequences and that the death penalty is not imposed for non-violent acts such as financial crimes, religious practice or expression of conscience and sexual relations between consenting adults.”[69]

Human Rights Committee, the authoritative interpretative body under ICCPR, has established a significant jurisprudence interpreting the “most serious crimes” by consistently excluding offences that does not lead to loss of life from the imposition of the death penalty. It has found it inconsistent with Article 6(2) of the ICCPR to use capital punishment for crimes such as: apostasy, abetting suicide, aggravated robbery with the use of firearm, robbery with violence, homosexual acts, illicit sex, espionage, evasion of military responsibility, economic crimes, offences against property, embezzlement by state officials, theft by force, misappropriation of state or public property, misuse of public funds, and crimes against the economy, in particular political crimes in general. The Human Rights Committee also interprets the phrase to allow: “Only intentional killings or attempted killings, and perhaps the intentional infliction of grievous bodily harm.”[70]

In the 1999 session of the UN Commission on Human Rights, the then UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Ms. Asma Jahangir, has stated that the death penalty may be used only for the “most serious crimes” with lethal or other extremely grave consequences,” not for economic and other so-called victimless offences, activities of a religious or political nature-including acts of treason, espionage and ‘disloyalty’, offences primarily related to prevailing moral values, such as adultery and prostitution, as well as matters of sexual orientation.”[71] In addition, Phillip Alston, who was Special Rapporteur on extrajudicial, summary or arbitrary executions from 2004 to 2010, observed that a considerable number of offences should not be defined as the “most serious crimes”[72] and thus found the death penalty can only be imposed in cases where it can be shown that there was an intention to kill which resulted in the loss of life.[73]

Urging the Indonesian Government to halt further executions of people convicted of drug-related offenses, the current Special Rapporteur on extrajudicial executions, Christof Heyns, stressed that “[u]nder international law, the death penalty…should only be imposed for the most serious crimes, that is, those involving intentional killing, and only after a fair trial, among other safeguards”[74]. These statements echo Roger Hood’s assertion that countries that retain the death penalty should move to restrict it to the most serious offences of murder (culpable homicide).[75] Moreover, it supports William Schabas’ conclusion that felony murder[76] does not belong to the “most serious crimes.” Most recently, the 2013 revised EU Guidelines on Death penalty stated that “[t]he death penalty must not be imposed for non-violent acts such as financial or economic crimes, or because of political offences or rivalries. It shall also not be imposed for drug related crimes, religious practices or expression of conscience, or for sexual relations between consenting adults, it also being understood that scope should never go beyond the most serious intentional crimes.”[77]

4.2.         Mandatory Death Sentence and Principle of Legality

The mandatory penalty of death on conviction of murder long pre-dated any international arrangements for the protection of human rights. Subsequent international human rights standards require a court must have the discretion to take into account the individual characteristics of the offender and the offence, including any evidence of mitigating circumstances, in determining whether the death penalty can and should be imposed.[78] Mandatory death sentences ignore these requirements, thus fall into the ambit of “arbitrary” deprivation of life. In addition, it does not allow the judge “to take into account a variety of mitigating or extenuating circumstances that might remove a particular offence from the category of most serious crimes”[79]. In short, it constitutes a violation of the right to life, the prohibition of torture, and the right to a fair trial.

Evidence in support of the prohibition of mandatory death sentence exists in a wide range of international human rights documents. Article 3 (the right to life), Article 5 (prohibition of torture) and Article 10 (right to a fair trial) of the Universal Declaration of Human Rights (1948) are springheads of the jurisprudence against mandatory death penalty. Other following development includes Article I (the right to life), Article XVIII (the right to judicial remedy) and Article XXVI (right to a fair trial)[80] of the American Declaration of the Rights and Duties of Man (1948); Article 2 (right to life)[81], Article 3 (prohibition of torture)[82] and Article 6 (right to a fair trial)[83] of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953); Article 6 (right to life), Article 7 (prohibition of torture) and Article 14 (right to a fair trial) of ICCPR (1966); Article 4 (right to life), Article 5 (prohibition against torture) and Article 8 (right to a fair trial) of the American Convention on Human Rights (1969).[84]

Similar jurisprudence could be traced in case law developed by the UN Human Rights Committee. In Lubuto v. Zambia, the Committee considers mandatory death sentence in Zambian law for armed aggravated robbery where the defendant was in possession of a firearm is incompatible with the “right to life” clause under ICCPR, because mandatory sentences does not guarantees the right to present any relevant mitigating evidence that could justify a lesser sentence. The Commission in paragraph 7.2 states:

“The Committee notes that the author was convicted and sentenced to death under a law that provides for the imposition of the death penalty for aggravated robbery in which firearms are used. The issue that must accordingly be decided is whether the sentence in the instant case is compatible with article 6, paragraph 2, of the Covenant, which allows for the imposition of the death penalty only “for the most serious crimes”. Considering that in this case use of firearms did not produce the death or wounding of any person and that the court could not under the law take these elements into account in imposing sentence, the Committee is of the view that the mandatory imposition of the death sentence under these circumstances violates article 6, paragraph 2, of the Covenant.” [85]

In a similar vein, the Human Rights Committee noted that “the automatic and mandatory imposition of the death penalty constitutes an arbitrary deprivation of life, in violation of Article 6(1) of the Covenant, in circumstances where the death penalty is imposed without any possibility of taking into account the defendant’s personal circumstances or the circumstances of the particular offence.”[86]

The UN Special Rapporteur on extrajudicial, summary or arbitrary executions has stated that the death penalty should under no circumstances be mandatory by law, regardless of the charges involved[87] and that “[t]he mandatory death penalty which precludes the possibility of a lesser sentence being imposed regardless of the circumstances, is inconsistent with the prohibition of cruel, inhuman or degrading treatment or punishment.”[88] In its Resolution 2005/59, adopted on 20 April 2005, the UN Commission on Human Rights urged all states that still maintain the death penalty “to ensure…that the death penalty is not imposed…as a mandatory sentence.”

Retroactive enforcement of the death penalty is forbidden by international human rights law. The UDHR sets the framework for the treatment of non-retroactivity of criminal law in later treaties, although the article is not capital punishment-specific.[89] Most of the international human rights instruments followed this general approach, including Article 40(2)(a) of the Convention on the Rights of the Child, Article 7 of the American Convention on Human Rights (ACHR), Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and Article 7(2) of the African Charter of Human and Peoples’ Rights.

A few international instruments prescribed the principle of legality about the death penalty. These include the ICCPR Article 6(2), the regional human rights treaties and other international instruments. The ICCPR crystallized the principle of legality by stating that capital punishment may be imposed only for a crime proscribed by law at the time of commission of the crime. The ECOSOC Safeguards No. 2 goes further to require that, if the law imposes a lighter punishment after the commission of the crime conduct, the offender shall benefit from the change of legislation. The proposed revised Arab Charter on Human Rights (ArCHR) specifically mentions prohibition of retroactive imposition of the death penalty. Moreover, it emphasized the principle of legality regarding exemption of juveniles and pregnant women.[90]

Capital punishment may be imposed only for a crime for which the death penalty is prescribed by law at the time of its commission, it being understood that if, subsequent to the commission of the crime, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.[91]

The principle of legality (nullum crimen, nulla poena sine praevia lege scripta) as established by the above international instruments has been narrowly defined to its “non-retroactivity” aspects. Broadly speaking, the principle of legality requires specific crimes, punishments and courts be established legally.[92] The principle prescribed in the above instruments is more appropriately called “the rule against ex post facto laws,” or “the principle of non-retroactivity of crimes and punishments.” In essence, retroactivity of new crimes and increased punishment by case law and by statutes are prohibited. To ensure the compatibility of death penalty legislation with the principle of legality: an offender cannot be punished by death if the committed crime falls outside the ambit of “the most serious crimes” at the time of wrongdoing; meanwhile, capital punishment constitutes no legitimate penalty for an offender if the penalty prescribed by law at the time of criminal conduct is less grave than death.

4.3.         Specific Groups Excluded from Capital Punishment

The third safeguard provided: “Persons below 18 years of age at the time of the commission of the crime shall not be sentenced to death, nor shall the death sentence be carried out on pregnant women, or on new mothers, or on persons who have become insane.” The rest of this subsection will be devoted to describing the development of international human rights norms excluding certain groups of vulnerable persons from the imposition of the death penalty, regardless of disparities in various local cultural, political and social settings. These vulnerable persons are exempted on the basis of their age, mental state or the protection of fetus, infant and young child.

4.3.1.     Juveniles

Several international instruments prohibit the imposition of the death penalty on juvenile offenders.[93] The age limit of juveniles has been agreed upon as persons under the age of 18.[94] The prohibition depends upon the age of the offender at the time of committing the crime, and does not cease once a juvenile offender attaining the age of majority. People who were under the age of 18 at the time the crime was committed may not be sentenced to death, regardless of their age at the time of trial or sentencing. This prohibition has been affirmed in numerous treaties, resolutions, and other international instruments.

The prohibition of juvenile death penalty and the minimum age limited were first established by the fourth Geneva Convention of 1949. Even in times of war, the Geneva Convention prohibits execution of civilians under age eighteen at the time of offence.[95] Article 6(4) of Additional Protocols I and II to the Geneva Conventions of 1949, Article 6(5) of the ICCPR, Article 37(a) of the Convention on the Rights of the Child, ECOSOC Safeguards No. 3, Rule 17.2 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”), Article 4(5) of the American Convention on Human Rights (ACHR) prohibit the death penalty being pronounced on people aged less than 18 years at the time the crime was committed.

The prohibition of the juvenile death penalty is so universally practiced and accepted, it has reached the level of a jus cogens norm.[96] According to Article 53 and 64 of the Vienna Convention on the Law of Treaties, a jus cogens (peremptory)norm is “accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by subsequent norm of general international law having the same character.”[97] Jus Cogens norms are the highest rules of international law, and function essentially as very strong rules of customary international law (the general practice of states which becomes binding law overtime through repetition and adoption).[98] The prohibition of the juvenile death penalty satisfies these tests.

In view of the number of states which have ratified the American Convention and ICCPR, Sub-Commission on the Promotion and Protection of Human Rights resolution 2000/17 and the Inter-American Commission have stated that the prohibition on the execution of children is emerging as a norm of international customary law.[99] It satisfies the two elements of inveterate consuetude (constant repetition of a fact) and opinion juris (sense of obligation) of customary international law. The U.N. Convention on the Rights of the Child, which explicitly prohibits the death penalty, has been ratified by almost every country in the world.[100] In Roper v. Simmons, 543 U.S. 551 (2005),[101] the Supreme Court of the United States ruled that the execution of people who were under 18 at the time of their crimes violates the federal constitutional guarantee against cruel and unusual punishments.

4.3.2.     The Aged

International human rights instruments have not reached a consensus specifying a maximum age beyond which the death penalty cannot be imposed or carried out. However, a few stated that a maximum age should be established above which the death penalty cannot be imposed or carried out. The execution of people over the age of 70 is prohibited by Article 4(5) of the American Convention on Human Rights (ACHR).[102] To implement the ECOSOC Safeguards, the UN ECOSOC made a similar endeavor to recommend that states should establish “a maximum age beyond which a person may not be sentenced to death or executed.”[103]

Some countries have aligned their legislation with these guiding principles[104]. For instance, in Belarus, the death penalty was not applicable to men who had reached the age of 65 at the time of sentencing.[105]China’s 2011 Eighth Amendment to its Criminal Law provides that, as a general principle, person 75 years of age or older at the time of trial is exempt from application of the death penalty.[106] The transitional Constitution of South Sudan, which entered into force in 2011, prohibits imposing the death penalty on persons who are more than 75 years of age.[107] A provision in the new Constitution of Zimbabwe adopted in 2013 states that the death sentence shall not be passed upon an offender who is over the age of 70 years.[108]

4.3.3.     Pregnant Women and New Mothers

The prohibition on the execution of pregnant women and recent mothers (or mothers of young children) is recognized in virtually all of the international instruments.[109] Relevant instruments include: Article 6(5) of the ICCPR, Article 4(5) of the ACHR, Article 76(3) of the Additional Protocol to the 1949 Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), Article 6(4) of Protocol Additional to the 1949 Geneva Conventions and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II). Similar to the prohibition of juvenile execution, prohibition of execution of pregnant women has attained the status as customary international law.

ICCPR (1966) prohibits execution (i.e. capital punishment “shall not be carried out on”) “pregnant women”, as opposed to capital punishment “shall not be imposed for crimes committed by persons below eighteen years of age.” The 1978 ACHR went further to declare that capital punishment shall not “be applied to pregnant women.”[110] No. 3 of the ECOSOC Safeguards (ECOSOC resolution 1984/50) prohibits execution of pregnant women and “new mothers”. Prohibition of capital punishment on “pregnant women and recent mothers” is mentioned in a Report of the UN Special rapporteur on extrajudicial, summary or arbitrary executions.[111] The UNCHR approved Human Rights Resolution 2005/59 on the question of the death penalty, which called for all states that still maintain the death penalty to exclude pregnant women and “mothers with dependent infants from capital punishment.” The 2013 revised version of the EU Guidelines on Death Penalty further introduced “nursing women” into this category excluded for the application the death penalty.

In spite of the trend of excluding an expansive scope of women from the application of the death penalty for child protection purposes, there appears no consensus on the boundary of the category of “pregnant women and new mothers.” The 2015 quinquennial report by the Secretary-General[112] observed that national legislation varies with regard to when women are death-eligible after giving birth. For instance, in Egypt, an execution will be held until two months after the mother has given birth. In Thailand, an execution is delayed by three years following the birth of a child. In many other states, theoretically, new mothers are subject to executions although they are excluded when pregnant.

4.3.4.     Persons of Limited Mental Capacity

The prohibition of the execution of the insane is a norm of customary international law.[113] Similar to the judicial development of the pregnant women, there appears to be an ever-expanding category of mentally incompetent being excluded from execution. Today, most countries prescribe that the insane and the mentally retarded are shielded from the infliction of the death penalty and especially from execution. In May 1984, No. 3 of ECOSOC Safeguards stated that death sentence shall not be carried out “on persons who have become insane.”[114] The third safeguard was amplified by the ECOSOC in 1988 with the words “persons suffering from mental retardation or extremely limited mental competence.”[115] In Resolution 1989/60, the ECOSOC went further to exempt mentally disabled[116] from the process of imposing death penalty, recommending the States to eliminate the death penalty for such persons “whether at the stage of sentence or execution.”[117] 

UN Commission on Human Rights Resolution on the Question of the Death Penalty 2001/68[118] and its 2002 annual resolution urged states that still maintain the death penalty not “to impose the death penalty on a person suffering from any form of mental disorder or to execute any such person.”[119] The Commission on Human Rights, in its resolution 2004/67, called upon all States that still retain the death penalty not to impose it on “a person suffering from any form of mental disorder or to execute any such person.” In 2005, the Commission on Human Rights adopted Resolution 2005/59, which reframed the above wording to “[n]ot to impose the death penalty on a person suffering from any mental or intellectual disabilities or to execute any such person,”[120] further including those “intellectually disabled” into the category of persons of limited mental capacity. The seventh Quinquennial Report suggests that the safeguard will need to be reformulated to be in line with the recommendation of the Commission on Human Rights to include “any form of mental disorder.”[121]

4.3.5.     Procedural Safeguards

International human rights conventions mandate that capital punishment can only be imposed against an individual when due process of law can be established to guarantee a presumption of innocence, when guilt is based upon clear and convincing evidence leaving no room for an alternative explanation of facts, when a fair opportunity to answer the charges brought against him or her is guaranteed, when adequate time to prepare a defence is allowed, when the trial is held without undue delay before a duly constituted and impartial court, when the assistance of a well-qualified defence counsel is available, when the right of appeal and the right to seek pardon, clemency, reprieve or commutation is granted (capital punishment shall not be carried out pending any appeal or other recourse procedure),[122] and when capital punishment is carried out in a way to inflict minimum suffering.

Due process guarantees at all stages of criminal justice process has attained the status of customary international law or general principle in international law and have been reflected in a wide range of international treaties, United Nations ECOSOC and General Assembly resolutions, declarations by states in their reports to the Secretary-General as well as in their periodic reports to the Human Rights Committee.[123] While Article 14 is not included in the list of non-derogable rights of Article 4(2) of the Covenant, States derogating from normal procedures required under Article 14 in circumstances of a public emergency should ensure that such derogations do not exceed those strictly required by the exigencies of the actual situation. The guarantees of fair trial may never be made subject to measures of derogation that would circumvent the protection of non-derogable rights.[124]

4.3.6.     The Right to a Fair Trial

The death sentence may be carried out only pursuant to a final judgment rendered by a competent court after a legal process which gives all possible safeguards to ensure a fair trial. Article 6(2) and 14(1) of ICCPR[125], Article 6(1) of European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 7 (1) (b) of African Charter of Human and Peoples’ Rights, Article 8(1) of the American Convention on Human Rights (ACHR), No. 5 of the ECOSOC Safeguards requires defendants entitled to a fair and public hearing before a competent, independent and impartial court/tribunal established by law. In particular, States parties should pay specific attention to “the manner in which judges are appointed, the qualifications for appointment, and the duration of their terms of office; the condition governing promotion, transfer and cessation of their functions and the actual independence of the judiciary from the executive branch and the legislative.”[126]

The right to equality before the courts and tribunals and to a fair trial is a key element of human rights protection. As a procedural means to safeguard the rule of law, relevant specific rights include a presumption of innocence,[127] the requirement of clear and convincing evidence,[128] a fair opportunity to answer the charges brought against him or her, trial without undue delay,[129] the equality of arms before the courts (including the right to be informed,[130] the right to have adequate time and facilities for the preparation of his defence and the right to communicate with counsel of his own choosing,[131] the right to present during the trials,[132] the right of defence (including the right to counsel),[133] the right to have legal assistance/aid,[134] the right to have the witnesses examined and cross-examined in court,[135] the right to have the free assistance of an interpreter as a foreign language speaker,[136] the right not to be compelled to testify against himself or to confess guilt,[137] the right to stand special procedure tailored for juveniles,[138] and the right to information on consular assistance[139]).

In 2013, the United Nations High Commissioner for Human Rights criticized the application of the death penalty in Iraq as plagued with false and torture-induced confessions and unfair judicial proceedings, inevitably resulting in miscarriage of justice in capital cases[140]. The General Assembly adopted the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems in 2012, stressing the right of capital defendant to legal aid at all stages of the criminal justice process.[141] In 2013, the High Commissioner for Human Rights expressed concerns for the lack of adequate legal assistance for people facing the death penalty in Afghanistan in 2012. The Committee against Torture expressed deep concerns over “interference with the right to assistance by legal counsel, including the limited confidential access to lawyer.”[142] The Inter-American Commission on Human Rights noted the failure of the national authorities to intervene when the state of Texas violated capital defendants’ right to adequate defence representation.[143]

4.3.7.      The Right of Appeal

Persons sentenced to death, their families and their counsels should be provided with timely and reliable information on the procedures and timing of appeals. The right of appeal to a court or tribunal of higher jurisdiction has been widely recognized in a series of international instruments, including, but not limited to Article 14(5) of ICCPR, Article 7(1)(a) of African Charter of Human and Peoples’ Rights, Article 2 of European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 8(2)(h) of American Convention on Human Rights (ACHR). That the right to appeal should be made mandatory was stated in No. 6 of ECOSOC 1984/50 Safeguards and further affirmed by ECOSCO resolution 1989/64.

ICCPR provides that everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law. This available and effective judicial review/appeal should be interpreted as including reassessment on the law and the merit of the case;[144] the appellant review should examine both stages of the trial process: conviction and sentencing; the death penalty appeals raise both substantive law issues and procedural law issues.

General Comment No. 13 of the Human Rights Committee in 2003 emphasized that the procedures of appeal, in particular the access to and the powers of reviewing tribunals, what requirements must be satisfied to appeal against a judgement, and the way in which the procedures before review tribunals take account of the fair and public hearing requirements of paragraph 1 of article 14 of ICCPR should be ensured accordingly.[145] General Comment No. 32 in 2007 stressed the importance of the right of appeal in capital cases.[146] A denial of legal aid by the court reviewing the death sentence of an indigent convicted person constitutes not only a violation of Article 14(3)(d) and 14(5) of the ICCPR as an effective review of the conviction and sentence by the higher instance court is precluded in such cases.

The efforts made by China since 2007 to recall and improve the review procedures by the highest court – the Supreme People’s Court – in capital cases reflect the willingness of the Chinese judicial authorities to align their law and practices with international standards. In some countries, such as the Democratic People’s Republic of Korea, death sentences by trial courts are not subject to further review or appellant proceedings of any kind.[147] The Inter-American Commission on Human Rights has described “exceedingly limited” post-conviction review procedures at state level in the US to be incompatible with the right to an appeal in death penalty cases.[148]

4.3.8.     The Right to Seek Clemency

After all judicial remedies have been exhausted, the exercise of the prerogative of clemency serves as the last hope of prisoners to have his death sentence mitigated or removed. Executive clemency process in capital punishment cases includes a wide range of options, including pardons, amnesties reprieves and commutation. These terms can be used exchangeable in certain contexts; however, they also can be distinguished by reference to different definitions. A pardon excuses the offender of his entire criminal responsibility. An amnesty is typically granted to individual groups. Reprieves provide short-term relief of penal punishment for the offenders. Commutations substitute the death sentence for a lesser punishment, such as life imprisonment.[149]

The right of capital defendants to seek clemency has been well established by a few international human rights instruments. Article 6(4) of the ICCPR, No. 7 of ECOSOC Safeguards, and Article 4(6) of the ACHR adopt almost identical wording on the right to seek pardon, commutation or amnesty.[150] In resolution 1989/64, adopted on 24 May 1989, the UN ECOSOC recommended that UN member States provide for “mandatory appeals or review with provisions for clemency or pardon in all cases of capital offence.” ECOSOC resolution 1996/15 called upon Member States to “ensure that officials involved in decisions to carry out an execution were fully informed of the status of appeals and petitions for clemency of the prisoner in question.” In resolution 2005/59, adopted on 20 April 2005, the UN Commission on Human Rights urged all states that still maintain the death penalty “to ensure…the right to seek pardon or commutation of sentence.”

Paragraph 7 of the UN Human Rights Committee General Comment No. 6 specifically mentioned “the particular right to seek pardon or commutation of the sentence.” The Committee has stated that the imposition of death sentences without the possibility to seek pardon or commutation of the sentence is incompatible with the ICCPR.[151] The Committee has also stated with reference to one country that “[t]he preponderant role of the victim’s family in whether or not the [death] penalty is carried out on the basis of financial compensation” is “contrary to Articles 6, 14 and 26 of the Covenant.”[152] The UN Special Rapporteur on extrajudicial, summary or arbitrary executions has stated that “[t]here can be no exception to the defendants’ right to seek pardon, clemency or commutation of the sentence”[153] and that “[a]ppeals for clemency should provide effective opportunities to safeguard lives.”[154]

The Secretary-general’s quinqennial report observed large-scale commutations in the most recent years in a few of countries, including, but not limited to Ghana, Zambia, Kenya, Morocco, Sierra Leon, and Oman.[155] In some other countries, however, a total absence of effective clemency regime hinders the protection of the right of condemned prisoners. In China, for instance, there has been no active clemency available for all kinds of criminal defendants since the late 1970s. Where the regimes of pardon, amnesty and clemency is available, there is the additional question of whether its application suffices minimum requirements. The inter-American Commission on Human Rights, for instance, held that the procedure for granting mercy in the Bahamas does not guarantee condemned prisoners with an effective or adequate opportunity to participate in the mercy process.[156] It has also expressed its concerns over the state-level clemency regimes in the United States.[157]

4.3.9.    Stay of Execution Pending Appeal or Pardon

It is an established international human rights standard that adequate time between sentencing and execution must be allowed. In resolution 1989/64, adopted on 24 May 1989, the UN ECOSOC called on UN member States in which the death penalty may be carried out “to allow adequate time for the preparation of appeals to a court of higher jurisdiction and for the completion of appeal proceedings, as well as petitions for clemency.” The UN Special Rapporteur on extrajudicial, summary or arbitrary executions has recommended “that States establish in their internal legislation a period of at least six months before a death sentence imposed by a court of first instance can be carried out, so as to allow adequate time for the preparation of appeals to a court of higher jurisdiction and petitions for clemency.”[158] The Special Rapporteur has stated that “[s]uch a measure would prevent hasty executions while affording defendants the opportunity to exercise all their rights.”[159]

It is also a requirement under international human rights law that execution cannot to be carried out while appeal or petition for clemency is pending. No. 8 of the ECOSOC Safeguards and Article 4(6) of the ACHR states that Capital punishment shall not be carried out pending any appeal or other recourse procedure or other proceeding relating to pardon or commutation of the sentence. In resolution 2005/59, adopted on 20 April 2005, the UN Commission on Human Rights urged all states that still maintain the death penalty “not to execute any person as long as any related legal procedure, at the international or at the national level, is pending.”

The UN Human Rights Committee has stated that the carrying out of the execution of a prisoner when the execution of the sentence was still under challenge in the courts of a state party to the ICCPR constituted a violation of Article 6(1) and 6(2) of that Covenant.[160] Where prisoners were executed while their cases were under consideration by the UN Human Rights Committee and after that Committee had requested interim measures of protection so that their executions would be stayed pending consideration of their cases, the Human Rights Committee has stated that “[d]isregard of the Committee’s requests for interim measures constitutes a grave breach of the State party’s obligations under the Covenant and the [first] Optional Protocol.”[161]

In resolution 1996/15, adopted on 23 July 1996, the UN Economic and Social Council called on UN member states in which the death penalty may be carried out “to ensure that officials involved in decisions to carry out an execution are fully informed of the status of appeals and petitions for clemency of the prisoner in question.” The UN Special Rapporteur on extrajudicial, summary or arbitrary executions has stated that “officials who are responsible for carrying out an execution should be fully informed of the state of appeals and petitions for clemency of the prisoner in question, and they should be instructed not to carry out an execution while any appeal or other recourse procedure or other proceeding relating to pardon or commutation of the sentence is still pending.”[162]

4.3.10.  The Method of Execution-Minimum Suffering

The requirement towards a humane, speedy, decent and painless method of execution is enshrined in the international human rights standard forbidding torture and inhuman treatment as provided in Article 7 of ICCPR. No. 9 of ECOSOC Safeguards announced that where capital punishment occurs, “it shall be carried out so as to inflict the minimum possible suffering.” This was further strengthened by the UN Human Rights Committee General Comment 20, paragraph 6, which states that “when the death penalty is applied…it must be carried out in such a way as to cause the least possible physical and mental suffering.”[163]

The Committee has also called for the abolition in law of the penalty of death by stoning.[164] In Ng v. Canada, the Committee concludes that “execution by gas asphyxiation…would not meet the test of ‘least possible physical and mental suffering,’ and constitutes cruel and inhuman treatment, in violation of Article 7 of the Covenant.”[165] In Resolution 2004/67, the Commission on Human Rights urged states to ensure that “where capital punishment occurs it shall not be carried out in public or in any other degrading manner, and to ensure that any application of particularly cruel or inhuman means of execution, such as stoning, is stopped immediately.” This was emphasized again in a UN Resolution 2005/59, which was adopted on 20 April 2005, that all states that still maintain the death penalty “to ensure that any application of particularly cruel or inhuman means of execution, such as stoning, be stopped immediately”. The new Islamic Penal Code, passed by the Iranian Parliament in January 2012, eliminated stoning as a method of execution.[166]

Lethal injection as an execution method raises concerns about the pain and suffering inflicted on the condemned prisoner. Despite being upheld by the United States Supreme Court as a legitimate method of execution[167] and increasingly used by China nowadays, it potentially may amount to torture or cruel, inhuman or degrading punishment with the evolving standards of decency on this topic. Most recently, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment took a further step to explore whether the imposition of the death penalty runs afoul of the prohibition of torture and cruel, inhuman and degrading treatment or punishment. The Special Rapporteur concludes that “most conditions under which capital punishment is actually applied renders the punishment tantamount to torture. Under many less severe conditions, it still amounts to cruel, inhuman or degrading treatment.”[168] Thus even theoretically possible, it is practically impossible to administer the execution in a way to guarantee the absence of illegitimate pain.

The UN Human Rights Committee stated that “the failure to notify the family and lawyers of the prisoners on death row of their execution” in a State Party to the ICCPR is “incompatible with the Covenant.”[169] It has been established that executions should be administered in a way to minimize its impact on family members of the condemned person, who are potentially “secondary victims” to the imposition of capital punishment. The Human Rights Committee ruled that secrecy and uncertainty surrounding an execution in Belarus was a violation of Article 7 of the ICCPR. The failure of the authorities to provide any details about the situation of the convicted person, release the body for burial to the family, or to indicate the location of the burial site of a condemned person aggravated mental distress and anguish of the affected family and thus in contravention of the prohibition against torture or cruel, inhuman or degrading treatment or punishment.

In addition, public executions are strictly prohibited. The UN Human Rights Committee has stated: “Public executions are…incompatible with human dignity.”[170] Also, no international human rights instruments speak to the issue of public execution, the Committee has called on States to refrain from public executions.[171] In Resolution 2005/59, adopted on 20 April 2005, the UN Commission on Human Rights urged all states that still maintain the death penalty “to ensure that, where capital punishment occurs, it…shall not be carried out in public or in any other degrading manner”. The 2013 European Union guidelines state that the death penalty may not be carried out in public or in any other manner intended to further degrade those facing execution.

4.3.11.  Extradition, Expulsion and Deportation

The policy of not extraditing persons who might face the death penalty to countries that retain it without a firm commitment that it will not be imposed nor the person concerned executed reflects efforts to extend the non-infliction of capital punishment practice beyond borders. Although it was not explicitly provided for in the ICCPR, it was recognized in a variety of international and regional human rights instruments.

The Convention against Torture provides that “no State Party shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”[172] Article 11 of the European Convention on Extradition of 1957 provided that “if the offence for which extradition is requested is punishable by death under the law of the requesting Party, and if in respect of such offence the death penalty is not provided for by the law of the requested Party or is not normally carried out, extradition may be refused unless the requesting Party gives such assurance as the requested Party considers sufficient that the death penalty will not be carried out.”[173] This was confirmed subsequently by Article 19 of the Charter of Fundamental Rights of the European Union, adopted in December 2000, states that no one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment, which includes the so-called “death-row” phenomenon.

In its resolution 2003/11, the Sub-Commission on the Promotion and Protection of Human Rights of the Commission on Human Rights urged all States not to transfer persons to the jurisdiction of States that still use the death penalty unless there is a guarantee that the death penalty will be neither sought nor applied in the particular case. This policy was also affirmed by the Commission on Human Rights in its resolution 2004/67 of 21 April 2004. In resolution 2005/59, adopted on 20 April 2005, the UN Commission on Human Rights requested that “[s]tates [having] received a request for extradition on a capital charge to reserve explicitly the right to refuse extradition in the absence of effective assurances from relevant authorities of the requesting State that the death penalty will not be carried out” and called upon “States to provide such effective assurances if requested to do so, and to respect them.”

Significantly, the Human Rights Committee superseded its ruling in 1993 in Kindler v. Canada[174] by its decision in Roger Judge v. Canada[175]. It states that countries that had abolished the death penalty had an obligation not to expose a person to the real risks of its application, which would constitute a violation of the person’s right to life under Article 6 of the ICCPR.[176]

4.3.12.   Transparency

Without transparency, the administration of capital punishment becomes a secret social and political repression, excluding the possibility of open and thorough debate.[177] In a Resolution 1989/64, adopted on 24 May 1989, the UN ECOSOC urged UN member states “to publish, for each category of offence for which the death penalty is authorized, and if possible on an annual basis, information about the use of the death penalty, including the number of persons sentenced to death, the number of executions actually carried out, the number of persons under sentence of death, the number of death sentences reversed or commuted on appeal and the number of instances in which clemency has been granted.”[178]

The UN Human Rights Committee has called on State Parties to the ICCPR to provide information on the use of the death penalty including the number of death sentences imposed over the past 10 years, the types of offence for which the death penalty has been imposed, the grounds for the sentences imposed, the number of executions carried out, the manner of execution and the identity of the prisoners executed.[179] Also, in resolution 2005/59, adopted on 20 April 2005, the UN Commission on Human Rights called upon all States that still maintain the death penalty “to make available to the public information with regard to the imposition of the death penalty and to any scheduled execution.”[180]

The requirement of transparency was further articulated by the UN Special Rapporteur on extrajudicial, summary or arbitrary executions that “full and accurate reporting of all executions should be published, and a consolidated version prepared on at least an annual basis.”[181] He also emphasized that “[t]ransparency is essential wherever the death penalty is applied. Secrecy as to those executed violates human rights standards.”[182]

5.     Conclusion

The global trend towards the restriction and abolition of capital punishment, facilitated by international and regional human rights standard-setting, has been echoed by domestic practices in many states. This rights-based approach, which progressively regulates and limits national-level authorities’ ultimate penal power to take away human lives, gathered momentum since the late 20th century and has gained recognition by an increasing number of countries. On the basis of fundamental concepts such as human rights and dignity, this normative framework can be categorized into multiple themes and aspects of the administration of the death penalty. The dynamic nature of this evolving standard, along with the resulting illegality of the death penalty under expanding prohibitive norms, is developing into a norm of customary law, if it has not already done so.

 

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