Fifty years after the adoption of the Universal Declaration of Human Rights, the trend towards worldwide abolition of the death penalty is unmistakable. When the Declaration was adopted in 1948, eight countries had abolished the death penalty for all crimes; today, as of November 1998, the number stands at 63. More than half the countries in the world have abolished the death penalty in law or practice, and the numbers continue to grow.
Amnesty International opposes the death penalty as a violation of fundamental human rights – the right to life and the right not to be subjected to cruel, inhuman or degrading punishment. Both of these rights are recognized in the Universal Declaration of Human Rights, other international and regional human rights instruments and national constitutions and laws.
Defense of life and defense of the state may be held to justify, in some cases, the taking of life by state officials; for example, when law-enforcement officials must act immediately to save their own lives or those of others or when a country is engaged in armed conflict. Even in such situations the use of lethal force is surrounded by internationally accepted standards of human rights and humanitarian law to inhibit abuse.Order now
The death penalty, however, is not an act of defense against an immediate threat to life. It is the premeditated killing of a prisoner for the purpose of punishment – a purpose that can be met by other means.
The cruelty of the death penalty is manifest not only in the execution but in the time spent under sentence of death, during which the prisoner is constantly contemplating his or her own death at the hands of the state. This cruelty cannot be justified, no matter how cruel the crime of which the prisoner has been convicted.
The cruelty of the death penalty extends beyond the prisoner to the prisoner’s family, to the prison guards and to the officials who have to carry out an execution. Information from various parts of the world shows that the role of an executioner can be deeply disturbing, even traumatic. The right to life and the right not to be subjected to cruel, inhuman or degrading punishment are the two human rights most often cited in debates about the death penalty. But the death penalty also attacks other rights.
In many cases prisoners are sentenced to death in trials which do not conform to international norms for a fair trial. Prisoners facing a possible death sentence are often represented by inexperienced lawyers, and sometimes by no lawyer at all. The defendants may not understand the charges or the evidence against them, especially if they are not conversant with the language used in court. Facilities for interpretation and translation of court documents are often inadequate. In some cases prisoners are unable to exercise their right to appeal to a court of higher jurisdiction and the right to petition for clemency or commutation of the death sentence. In some jurisdictions, capital cases are heard before special or military courts using summary procedures.
The death penalty is often used disproportionately against members of disadvantaged social groups, and thus in a discriminatory fashion, contrary to Articles 2 and 7 of the Universal Declaration of Human Rights. It is the ultimate denial of the dignity and worth of the human person, affirmed in the preamble to the Universal Declaration of Human Rights.
There is no criminological justification for the death penalty which would outweigh the human rights grounds for abolishing it. The argument that the death penalty is needed to deter crime has become discredited by the consistent lack of scientific evidence that it does so more effectively than other punishments.
International human rights standards have developed in a way that favors even tighter restrictions on the scope of the death penalty. This progressive narrowing of the death penalty is mirrored by actual practice in most states which still use the punishment.
The International Covenant on Civil and Political Rights (ICCPR), adopted by the UN General Assembly in 1966, states in Article 6(2): “In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes”. In a general comment on Article 6 of the ICCPR, the Human Rights Committee established under that treaty stated that “the expression ‘most serious crimes’ must be read restrictively to mean that the death penalty should be a quite exceptional measure”
In the Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, adopted in 1984 (ECOSOC Safeguards), the UN Economic and Social Council (ECOSOC) reiterated that the death penalty should be imposed only for the most serious crimes and stated that the scope of these crimes should not go beyond intentional crimes with lethal or other extremely grave consequences.
There have been various specific standards and statements about the crimes for which the death penalty should not be used. Article 4 of the American Convention on Human Rights (ACHR) states that the death penalty shall not be inflicted “for political offences or related common crimes.” The Human Rights Committee has stated that “the imposition of the death penalty for offences which cannot be characterized as the most serious, including apostasy, committing a third homosexual act, illicit sex, embezzlement by officials, and theft by force, is incompatible with article 6 of the Covenant. The summary of arbitrary executions has stated that the death penalty “should be eliminated for crimes such as economic crimes and drug-related offences”
The international standard of restricting the death penalty to the most serious crimes, in particular to those with lethal consequences, is broadly reflected in practice. Most states, which continue to carry out executions today, do so only for murder, although they may retain the death penalty in law for other crimes. Moreover, the rate of executions in most such countries has declined to a point where it represents only a tiny fraction of the number of reported murders.
International standards have also developed in such a way as to exclude more and more categories of people from those against whom the death penalty might be used in countries which have not abolished it.
The exclusion of juvenile offenders – those under 18 years old at the time of the offence – is so widely accepted in law and practice that it is approaching the status of a norm of customary international law. The prohibition is widely observed in practice. Between January 1990 and October 1998 Amnesty International documented only 18 executions of juvenile offenders worldwide, carried out in six countries. Half of the executions were carried out in just one country, the United States of America.
The exclusion of pregnant women, new mothers, and people over 70 years old, set forth variously in the ICCPR, the ACHR and the ECOSOC Safeguards, are also widely observed in practice. The ECOSOC Safeguards also state that executions shall not be carried out on “persons who have become insane”
Although the safeguards exist in principle in many countries which retain the death penalty, they are often not fully observed in practice, and even where an effort is made to observe them, the use of the death penalty often remains arbitrary. Factors such as inadequate legal aid and prosecutorial discretion result in some defendants being sentenced to death and executed while others convicted of similar crimes are not. The safeguards have failed to prevent the arbitrary use of the death penalty or to preclude its use against people innocent of the crimes of which they were convicted.
International bodies have increasingly made statements and adopted policies favoring abolition on human rights grounds. These statements and policies are beginning to be backed up by national court decisions ruling out the death penalty as a violation of human rights.
On 20 December 1971,the UN General Assembly affirmed the desirability of abolishing the death penalty in all countries. The desirability of abolishing the death penalty was reiterated in General Assembly resolution of 8 December 1977 and – most recently – by the UN Commission on Human Rights in resolution of 3 April 1998.
In resolution of 3 April 1997, the UN Commission on Human Rights expressed its conviction “that abolition of the death penalty contributes to the enhancement of human dignity and to the progressive development of human rights”.
Protocol No. 6 is the most widely ratified of the three in comparison to the number of states parties to the parent treaty; as of October 1998 it had been ratified by 28 states and signed by another five. The Second Optional Protocol to the ICCPR had been ratified by 33 states as of the same date and signed by another three, while the Protocol to the American Convention on Human Rights to Abolish the Death Penalty had been ratified by six states and signed by one other.
Sixty-three countries today have abolished the death penalty for all crimes. Another 16 have abolished the death penalty for all but exceptional crimes such as wartime crimes. Alongside the countries which have abolished the death penalty for all crimes or for ordinary crimes only, there are 24 which can be considered abolitionist de facto, in that they retain the death penalty in law but have not carried out any executions for the past 10 years, or have made an international commitment not to do so. As Roger Hood has stated, the death penalty in these countries “has a far greater symbolic than practical significance”
.The trend to abolition seems inexorable, yet the battle has to be fought over and over again. Each country has to go through a process which is often long and painful, examining for itself the arguments for and against, before finally – we hope – rejecting the death penalty.
The decision to abolish the death penalty has to be taken by the government and the legislators. This decision can be taken even though the majority of the public favour the death penalty. Historically, this has probably almost always been the case. Yet when the death penalty is abolished, usually there is no great public outcry; and once abolished, it almost always stays abolished.
This must mean that although a majority of the public favours the death penalty in a given country, it is also the case that a majority of the public is willing to accept abolition. This is a feature of public opinion which is not usually revealed by polls asking respondents to state their position on the death penalty. If the questions were more sophisticated, the polls would probably give a better sense of the complexities of public opinion and the extent to which it is based on an accurate understanding of the actual situation of criminality in the country, its causes and the means available for combating it.
As the UN Secretariat suggested as long ago as 1980, governments should take on the task of educating the public on the uncertainty of the deterrent effect of capital punishment. A better public understanding of crime prevention and criminal justice would produce more support for anti-crime measures which are genuine and not merely palliative. At the very least, politicians should not make demagogic calls for the death penalty, misleading the public and obscuring the need for genuine anti-crime measures.
Often the national debate on the death penalty is conducted in purely national terms. The international dimension needs to be brought in. Countries can learn from other countries’ experience.
Over the centuries, laws and public attitudes relating to torture have evolved. It is no longer permissible to use thumbscrews or the rack as legally sanctioned means of interrogation and punishment. Attitudes toward the death penalty are also changing, and bringing about abolition requires courageous political leadership, leadership that will be exercised in the defense of human rights. The requirement of respect for human rights has to include the abolition of the death penalty. It is not possible for a government to respect human rights and retain the death penalty at the same time.
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