The Death Penalty
under International
Law: A Background Paper to the
IBAHRI Resolution on the
Abolition of the Death
Penalty
2 The Death Penalty under International Law MAY 2008
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The Death Penalty under International Law MAY 2008 3
The Death Penalty under International Law:
A Background Paper to the IBAHRI Resolution on
the Abolition of the Death Penalty
Introduction
This paper aims to outline the status of the death penalty under international law. Part One assesses
existing treaty and customary international law, and notes that while the death penalty is not yet
prohibited under universally-binding international law, its abolition is strongly encouraged and it
may only be imposed within very strict limitations. Part Two examines the increasing international
trend amongst states to abolish the death penalty and identifies the likelihood that an international
customary standard is developing. Part Three considers the position of other international
organisations on the death penalty, noting that according to our research all organisations with a
human rights focus promote the abolition of the death penalty to varying degrees.
Part One: The Death Penalty under International Law
While the death penalty is not prohibited by the International Covenant on Civil and Political Rights
(ICCPR) or any other virtually universal international treaty, there are a number of instruments
in force with fewer states parties that do abolish capital punishment.
1
Similarly, international
customary law does not prohibit the death penalty at the current time, but custom is rapidly
changing towards a position in favour of worldwide abolition.
At the international level, the most important treaty provision relating to the death penalty is Article
6 of the ICCPR. At the time the ICCPR was drafted (1947-1966), just ten countries had abolished
the death penalty, but extensive debate nonetheless took place as to its status under the covenant.
2
Article 6 of the ICCPR states:
1. 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.
2. 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 judgement rendered by a competent court.
1 These include: the Second Optional Protocol to the International Covenant on Civil and Political Rights (60 ratifications, 7 signa-
tures); the Protocol to the American Convention on Human Rights to Abolish the Death Penalty (eight ratifications, one signature);
Protocol number 6 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (45 ratifications, one
signature); Protocol no. 13 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (38 ratifica-
tions, 6 signatures). Others strictly limit the death penalty, including: the Convention on Human Rights and Fundamental Freedoms
of the Commonwealth of Independent States (12 parties); the American Convention on Human Rights (24 ratifications, 1 signature);
and the Arab Charter on Human Rights (22 states).
2 Roger Hood, The Enigma of the ‘Most Serious’ Offences Centre for Human Rights and Global Justice Working Paper Extrajudicial Execu-
tions Series (Number 9 2006) NYU School of Law, New York, 2.
4 The Death Penalty under International Law MAY 2008
3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this
article shall authorize any State Party to the present Covenant to derogate in any way from any
obligation assumed under the provisions of the Convention on the Prevention and Punishment
of the Crime of Genocide.
4. 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.
5. 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.
6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital
punishment by any State Party to the present Covenant.
It is clear from this article that there are a number of strict limitations on the imposition of the
death penalty, including (but not limited to) the following:
• Right to a fair trial before the imposition of the death penalty;
• Limitation of the death penalty to only the most serious crimes;
• Prohibition against imposing the death penalty when other ICCPR rights have been violated;
• Prohibition against retroactive imposition of the death penalty;
• Right to seek pardon or commutation of a death penalty sentence;
• Prohibition against the execution of persons who were under the age of eighteen at the time the
offence was committed; and
• Prohibition against the execution of pregnant women.
In addition to these limitations, other customary limits are emerging, including (but not limited to)
trends towards the abolition of executing the mentally ill and mothers with dependant infants.
The first three limitations remain vague and controversial, so it is helpful to examine some of these
issues in greater depth.
‘Arbitrarily deprived’ – the right to a fair trial
Article 6 demands a fair trial before the imposition of the death penalty under two heads: the
protection against being ‘arbitrarily deprived’ of one’s life; and the requirement that the death
penalty not be imposed when the Covenant is otherwise breached. This has been interpreted by
the Human Rights Committee (the body responsible for monitoring States Parties compliance with
the ICCPR
3
), to mean that in all capital trials a fair trial that observes all the provisions of the ICCPR
must be held, without which the death penalty may not be imposed.
4
This includes recognised
3 It should be noted that the findings of the Human Rights Committee are in-principle only, and non-binding. The Human Rights Com-
mittee should not be confused with the Human Rights Council, formerly the Commission on Human Rights, which is a subsidiary body
of the United Nations General Assembly.
4 Louise Arbour, In the Matter of Sentencing of Taha Yassin Ramadan, Application for Leave to Intervene as Amicus Curiae and Application
in Intervention of Amicus Curiae of United Nations High Commissioner for Human Rights (Iraqi Tribunal: 8 February 2007)
The Death Penalty under International Law MAY 2008 5
international requirements including (but not limited to): being informed promptly and in detail of
the charges; for translation or interpretation into one’s own language to be provided; presumption
of innocence; counsel of one’s choosing; sufficient time to prepare a defence; a trial to be held
without undue delay; for the hearing to be heard by an independent and impartial tribunal; and for
the right of review by a higher tribunal.
5
This interpretation was supported and extended by the European Court of Human Rights, which
stated in 2005:
In the Court’s view, to impose a death sentence on a person after an unfair trial is to subject that
person wrongfully to the fear that he will be executed… Such anguish cannot be dissociated from
the unfairness of the proceedings underlying the sentence which, given that human life is at stake,
becomes unlawful under the Convention. Having regard to the rejection by the Contracting Parties
of capital punishment, which is no longer seen as having any legitimate place in a democratic
society, the imposition of a capital sentence in such circumstances must be considered, in itself, to
amount to a form of inhuman treatment.
6
Limitation to ‘the most serious crimes’
Whilst the limitation of the imposition of the death penalty to the most serious crimes is an
established principle of international law, it lacks definition and agreement.
7
In 1984, the Economic
and Social Council published the Safeguards Guaranteeing the Protection of the Rights of Those Facing the
Death Penalty, which stipulated that the most serious crimes should not go beyond intentional crimes
with lethal or other extremely grave consequences. While these Safeguards are not legally binding,
they were endorsed by UN General Assembly, indicating strong international support. Similarly, the
Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions has stated that the death
penalty should be eliminated for economic crimes, drug-related offences, victimless offences, and
actions relating to moral values including adultery, prostitution and sexual orientation.
8
However, this interpretation is contested by a number of countries, and so cannot be regarded as
universally accepted. For example, some Islamic states regard adultery and apostasy as some of the
most serious crimes, while other states believe the most serious crimes include political offences
and economic crimes.
9
States such as Singapore regard drug offences as among the most serious
crimes. Many of these views are not supported at the international level, and the Human Rights
Committee has stated specifically that the ‘imposition…of the death penalty for offences which
cannot be characterised as the most serious, including apostasy, committing a homosexual act, illicit
sex, embezzlement by officials, and theft by force, is incompatible with Article 6 of the Covenant’.
10
Other areas remain in contention. While the Committee’s findings are non-binding, they are
nonetheless highly persuasive in interpreting the ICCPR, particularly when read in conjunction
with the Safeguards endorsed by the General Assembly and the UN Special Rapporteur’s position.
5 Reid v Jamaica Communication No. 250/1987, Views adopted on 20 July 1990 at para 11.5, U.N. Doc. CCPR/C/51/D/355/1989
(1994).
6 Ocalan v Turkey European Court of Human Rights (First Section) Application 46221/99, Judgement of 12 May 2005 at para 169.
7 William A Schabas, The Abolition of the Death Penalty in International Law (Third Edition: Cambridge UP, 2002), 373.
8 Eric Prokosch, ‘The Death Penalty versus Human Rights’ in Death Penalty: Beyond Abolition (Council of Europe Publishing: Strasbourg,
2004), 23-35, 27; Supra Note 7, 373.
9 Supra Note 7.
10 CCPR/C/79/Add quoted in Supra Note 8, 26
6 The Death Penalty under International Law MAY 2008
However interpreted, it is clear that this provision restricts the application of the death penalty to a
very limited number of crimes. Consequently, under international law, the death penalty must only
be used as an exceptional measure, carried out under strict conditions.
11
Breaches of other human rights in the imposition of the death penalty
The assertion that the death penalty constitutes torture or cruel, inhuman or degrading treatment
is gaining ground. These human rights breaches may occur in the period following sentencing and
before execution, (which is known commonly in the United States as ‘death row phenomenon’), in
the method of execution, or in the loss of life itself.
The European Court of Human Rights found that the death row phenomenon in the United States
constituted cruel, inhuman or degrading treatment in Soering v United Kingdom and Germany
12
, as
did the Judicial Committee of the Privy Council in Pratt et al v Attorney-General for Jamaica et al
13
.
However, this has caused concern, as the Human Rights Committee and the Special Rapporteur on
Extrajudicial, Summary and Arbitrary Executions have noted that such criticisms are only likely to
result in the limitation of appeals.
14
Various methods of execution have also been identified as unacceptable at international law. For
example, the Human Rights Committee has deemed the use of the gas chamber to constitute cruel,
inhuman and degrading treatment.
15
The Human Rights Committee has also found that ‘public
executions are… incompatible with human dignity’.
16
The release of the recorded executions of
Saddam Hussein and his associates in 2006 was widely criticised, as were the taunts made against
him in his last moments. Stonings are heavily criticised as being cruel and inhuman, particularly
as the size of the stones is limited in order to prolong the suffering and death of the condemned
person.
17
The accidental decapitation of one of Saddam Hussein’s associates (considered further
below) also raised objection. In the United States, a number of states have ended use of the electric
chair as it is considered to be excessively painful, while debates are ongoing about the use of lethal
injections. This is due to concerns that when using lethal injections, the cocktail of drugs may result
in an extremely painful and slow death combined with paralysis. However, the use of lethal injection
remains legal at international law at this stage.
18
The line between cruel, inhuman and degrading treatment and torture may be blurred. Some
commentators have argued that execution is similar to torture, as it constitutes an extreme mental
and physical impact on a person already under the control of the government.
19
Under Article 1
of the Convention Against Torture, torture is defined as ‘any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person for such purposes as…punishing
him for an act he … has committed’, however it specifically excludes ‘pain or suffering arising
only from, inherent in or incidental to lawful sanctions’, thereby not prohibiting the death penalty
11 Supra Note 1, 4.
12 7 July 1989 Series A Vol 161 11 EHRR 439
13 [1993] 4 ALL ER 769
14 Supra Note 7, 372.
15 Supra Note 4. and Ng v Canada (No. 469/1991)
and Supra Note 7, 375.
16 Supra Note 7. 376.
17 Executions Fall as Pressure Grows for Universal Moratorium (Amnesty International Press Release: 27 April 2007).
18 Cox v Canada (No. 539/1993) UN doc CCPR/C/52/D/539/1993 and Supra Note 7, 375.
19 Supra Note 8, 24.
The Death Penalty under International Law MAY 2008 7
where applied in accordance with the law. The comparison of torture with the death penalty raises
a number of questions about the logic of current international law, as threatening to kill a prisoner
may be illegal, but the sentencing and actual execution of a prisoner may be lawful.
20
Under current
international law, progress towards considering the death penalty to constitute torture remains slow.
It is more likely that in the near future most methods of carrying out the death penalty will be seen
as a breach of the protection against cruel, inhuman or degrading treatment, and eventually, the
penalty itself will be regarded as a breach of the right to life.
20 Ibid.
8 The Death Penalty under International Law MAY 2008
The Death Penalty under International Law MAY 2008 9
Part Two: The international push towards
abolition
In addition to the above limitations, the ICCPR encourages states to move towards total abolition of
the death penalty. The Human Rights Committee has said that the ICCPR ‘strongly suggest[s] that
abolition is desirable’.
21
However, Article 6 does not make abolition mandatory under international
law.
Despite the lack of such a mandatory requirement, movement towards abolishing the death penalty
worldwide has been increasing rapidly in the last sixty years
22
, particularly since the United Nations
Declaration on Human Rights. At the beginning of the 20
th
century, only Costa Rica, San Marino and
Venezuela had permanently abolished the death penalty.
23
At the current time, 133 countries have
abolished the death penalty in law or in practice.
The first international treaty to limit the death penalty was the 1929 Geneva Convention, which
restricted it as a penalty on prisoners of war taken in armed conflict.
24
The absence of such a
prohibition from the ICCPR is explained by leading death penalty expert Professor William
Schabas, who claims that the ICCPR’s goal was abolition, but it was not made mandatory due to
‘the prudence of its drafters, aware of its anomaly but fearful of alienating retentionist States and
discouraging them from ratification’.
25
Public support for abolishing the death penalty gained ground following the huge loss of life
in the Second World War, and numerous states began to move towards abolition. In the 1980s,
three international instruments completely abolishing the death penalty were drafted.
26
At great
speed, the world moved towards ending capital punishment, and abolitionist states outnumbered
retentionist states as early as the mid-1990s.
27
Progress continues to this day, with an average of three
countries per year abolishing the death penalty throughout the last decade.
28
William Schabas cites
an
unmistakeable trend towards abolition, one that [is] constantly growing in momentum…Customary
international law does not prohibit capital punishment…but trends in State practice, in the
21 Laurence E. Rothenberg, ‘International Law, US Sovereignty and the Death Penalty’, Georgetown Journal of International Law (Spring
2004).
22 Supra Note 7, 363.
23 Supra Note 8, 32.
24 Supra Note 7, 366.
25 Ibid., 367.
26 Ibid., 2.
27 Ibid., 364.
28 Robert Badinter, ‘Preface-Moving towards universal abolition of the death penalty’ in Death Penalty: Beyond Abolition (Council of Eu-
rope Publishing: Strasbourg, 2004), 7-11, 9; Amnesty International ‘Facts and Figures on the Death Penalty) Available at http://web2.
amnesty.org/library/Index/engACT500022001?OpenDocument&of=THEMES%5CDEATH + Accessed on 18 April 2007; Sir Nigel
Rodley, ‘The United Nation’s work in the field of the death penalty’ in Death Penalty: Beyond Abolition (Council of Europe Publish-
ing: Strasbourg, 2004), 125-157, 125
10 The Death Penalty under International Law MAY 2008
development of international norms, and in fundamental human values suggest that it will not be
true for very long.
29
The issue of the death penalty has clearly moved firmly into the human rights arena, and is no
longer accepted as simply a national criminal justice policy issue.
30
It has been argued that the
exclusion of the death penalty by the international courts for the most heinous crimes imaginable
suggests that there is now no crime serious enough to warrant the death penalty.
31
One example of the way in which the movement towards abolition has been growing is evident
in the Human Rights Committee’s consideration of the responsibilities of abolitionist states in
extradition and deportation cases. In a 2003 landmark decision, the Human Rights Committee held
that Canada was obliged to ensure that the death penalty would not be carried out on a proposed
deportee.
32
In this decision, the Human Rights Committee stated:
For countries that have abolished the death penalty, there is an obligation not to expose a person
to the real risk of its application. Thus, they may not remove, either by deportation or extradition,
individuals from their jurisdiction if it may be reasonably anticipated that they will be sentenced to
death, without ensuring that the death sentence will not be carried out.
33
This was a departure from the previous position of the Committee, which had allowed such
extraditions and deportations to take place. In moving from its earlier position, the Committee
stated:
Since that time there has been a broadening international consensus in favour of abolition of the
death penalty, and in states which have retained the death penalty, a broadening consensus not
to carry it out…The Committee considers that the Covenant should be interpreted as a living
instrument and the rights protected under it should be applied in context and in the light of
present-day conditions.
34
While Human Rights Committee decisions are not binding, this decision supports the assertion that
the human rights discourse surrounding the death penalty is expanding. It is highly likely that,
eventually, international customary law will view the death penalty as a breach of the right to life,
the prohibition against torture, and the right not to be subjected to cruel, inhuman or degrading
treatment.
29 Supra Note 7, 364, 377.
30 Roger Hood, ‘Capital Punishment: The USA in World Perspective’ Center for Human Rights and Global Justice Working Paper: Extrajudicial
Executions Series (Number 3, 2005), 6.
31 Supra Note 8, 28.
32 UNHCR Roger Judge v Canada, Communication No. 829/1998 (13 August 2003) UN Doc CCPR/C/78.D/829/1998.
33 Ibid. paragraph 10.4.
34 Ibid.
The Death Penalty under International Law MAY 2008 11
Statistics on the death penalty by Country
Examining the trend towards abolition from a statistical viewpoint also supports the claim that the
death penalty is becoming increasingly unacceptable for the majority of states. When considering
these statistics, it is important to remember that only 60 years ago, just three states in the world had
abolished the death penalty.
Source: Amnesty International
The abolitionist trend is clear world-wide, particularly when states that are abolitionist for ordinary
crimes
35
or are abolitionist in practice
36
are included. Viewing these numbers, 67.5% of countries
are abolitionist (45% are abolitionist for all crimes, 5.5% are abolitionist for ordinary crimes, and
16% are abolitionist in practice), while 32.5% of countries are retentionist.
Statistics on the death penalty by IBA member organisation nationality
Source: Amnesty International
35 This refers to those countries which only provide for the death penalty for exceptional circumstances, such as crimes under military
law.
36 This refers to countries which retain the death penalty for ordinary crimes, but have not executed anyone for the past ten years and
appear to have adopted a practice or policy against executions.
0
20
40
60
80
100
120
140
Abolitionis t
for a ll
c rim es (90 )
Abolitionis t
for ordina ry
c rim es only
(11 )
Abolitionis t
in pra c tic e
(32 )
Total
Abolitionis t
(13 3 )
Re tentionis t
(64 )
N u m b er o f states
0
20
40
60
80
100
A b o lit io n is t
fo r all
cr im e s (66)
A b o lit io n is t
fo r o r d in ar y
cr im e s (7)
A b o lit io n is t
in pr actice
(13)
T o t a l
ab o lit io n is t
(86)
Re te n tio n is t
(39)
Nu m b e r o f cou n trie s re pre se n te d b y m e m b e r
orga n isa tio ns
12 The Death Penalty under International Law MAY 2008
When the statistical trend of the countries from which member organisations of the IBA are based
is considered, the tendency towards abolition is even stronger. Over half of all member counties
represented in the IBA are abolitionist for all crimes, with 70% of all member countries total
abolitionist (including 53% abolitionist for all crimes, 6% abolitionist for ordinary crimes, and 11%
abolitionist in practice). Only 30% of member countries are retentionist.
Statistics by IBA member organisations
Source: Amnesty International
The strongest trend towards abolition is evident when the individual bar associations and law
societies are each counted towards their country. In this case, an overwhelming 75% of member
organisations hail from countries that are abolitionist (including 62% abolitionist for all crimes, 5%
abolitionist for ordinary crimes and 8% abolitionist in practice) and only 25% are retentionist.
The Abolitionist Argument
States abolish the death penalty for a variety of reasons. However, human rights discourse regularly
plays a role. When Spain adopted abolition in 1995, it stated that ‘the death penalty has no place
in the general penal system of advanced, civilised societies…what more degrading or afflictive
punishment can be imagined than to deprive a person of his life?’
37
When the Constitutional Court
of South Africa held the death penalty to be unconstitutional, Justice Chaskalson said that ‘The
rights to life and dignity are the most important of all human rights…and this must be demonstrated
by the State in everything that it does, including the way it punishes criminals.’
38
Many of the states
entering the European Union have abolished the death penalty as a requirement of membership,
rather than directly due to their own human rights concerns. However, the EU’s strong human
rights stance in this area cannot be ignored as the primary reason behind the prohibition against the
death penalty amongst members states. Following abolition, most states increasingly move towards
37 Richard C. Dieter, The Death Penalty and Human Rights: US Death Penalty and International Law (Death Penalty Information Cen-
tre: Located at http://www.deathpenaltyinfo.org/Oxfordpaper.pdf Accessed May 2007).
38 Ibid. 4.
0
20
40
60
80
100
120
140
160
A b o lit io n is t
fo r all
cr im e s (122)
A b o lit io n is t
fo r o r d in ar y
cr im e s (9)
A b o lit io n is t
in pr actice
(16)
T o t a l
A b o lit io n is t
(146)
Re te n tio n is t
(49)
N umbe r of me mbe r organisations in e ach
cou ntry
The Death Penalty under International Law MAY 2008 13
viewing the death penalty as a breach of human rights, even if this was not the original reason
behind its abolition and where public opinion preferred retention at the time of abolition. This
tendency is evident both at the national leadership level and amongst members of the public.
Other states identify concerns not with the death penalty itself, but with the discriminatory way that
it tends to be imposed.
39
In abolishing the death penalty, some states undertake a trial moratorium
on capital punishment, to see whether it results in any increase in crime. The ensuing abolition in
such cases is therefore partially due to the failure of the death penalty to have a deterrent effect.
40
In the US, much of the debate promoting the abolition of the death penalty focuses on the risk of
executing the innocent, as over 100 prisoners have been released from US death rows since 1973.
41
The Retentionist Argument
Before considering the retentionist argument, it should be noted that the number of retentionist
countries imply a greater resistance to abolition than may actually be the case. In 2007, 91% of all
known executions took place in just 3% of the world’s countries: China, Iran, Pakistan, Iraq, Sudan
and the US, leaving 58 countries to account for the remaining 9% of all executions.
42
The total
number of executions worldwide has also been falling, from 2,148 in 2005 to 1,591 in 2006.
43
The arguments in favour of retaining the death penalty tend to fall into three camps: those who
claim that it is a matter of national sovereignty and is not related in any way to human rights law;
those who claim that it has a deterrent effect and is necessary for controlling crime; and those who
claim that it is required under their religion, and particularly in accordance with Islamic principles.
China, Singapore and some of the Caribbean states fall into the first category. China has stated that
‘each country should decide whether to retain or abolish the death sentence on the basis of its own
actual circumstances and the aspirations of its people’.
44
When Trinidad and Tobago withdrew
from the American Convention on Human Rights, it stated ‘the death penalty is not a human rights
issue’.
45
Singapore made a similar statement during the negotiation of the Rome Statute for the
International Criminal Court. These claims, while in line with similar views throughout the world
held in the early to mid 20
th
century, do not fit with the widespread attitudes throughout states,
international organisations and leading thinkers that regard the death penalty as very much a
human rights issue.
Retentionist states often argue that the death penalty deters crime and prevents re-offences.
However, these claims are not supported by any recognised studies, and many countries that adopt
a moratorium prior to the final abolition of the death penalty find that the death penalty does not
have a deterrent effect in practice.
39 Ibid. 7, 19; Roger Hood, ‘Introduction – the importance of abolishing the death penalty’ in Death Penalty: Beyond Abolition (Council of
Europe Publishing: Strasbourg, 2004), 13-22, 13; United Nations Norms and Guidelines in Criminal Justice: From Standard-Setting to Implemen-
tation, and Capital Punishment – Capital Punishment (Sixth United Nations Congress on the Prevention of Crime and the Treatment of
Offenders A/CONF.87/9 23 June 1980, 27.
40 Supra Note 39 7, 19; Hood, Supra Note 41, 13; United Nations Supra Note 41, 27.
41 Supra Note 8, 24.
42 Supra Note 19; Supra Note 8, 32.
43 Supra Note 19.
44 Philip Alston, ‘Transparency and the Imposition of the Death Penalty’ Civil and Political Rights, including the Questions of Disappearances
and Summary Executions, (Economic and Social Council, E/CN.4/2006/53/Add.3 24 March 2006)
45 Supra Note 29, 4; Supra Note 32, 10.
14 The Death Penalty under International Law MAY 2008
Islamic states also argue that the death penalty is required under Islamic law. However, this position
is not supported by a number of Islamic international lawyers
46
, and apparently also by some Islamic
states that have abolished the death penalty. While apostasy requires the death penalty (unlike
other offences, where it is recommended only), some Islamic scholars consider that this mandatory
status was only where the person had waged war against Allah and where their actions had resulted
in a homicide.
47
In addition, of the fifty countries in the world with a Muslim majority, only 32
(64%) retain and impose capital punishment. In practice, it tends to be the least democratic and
most repressive states that retain and use the death penalty. Islamic law is also tempered by the
darura, the doctrine of necessity, which allows the Shari’a to be ignored when necessary under the
circumstances.
48
It is arguable that the international environment is increasingly creating such a
necessity as the death penalty becomes unacceptable.
46 Including M Cherif Bassiouni.
47 M Cherif Bassiouni, ‘Death as a Penalty in the Shari’a’ The Death Penalty: Condemned (International Commission of Jurists: Chatelaine,
2000), 65-84, 73-77.
48 Ibid.
The Death Penalty under International Law MAY 2008 15
Part Three: the positions of other
international organisations on the death
penalty
A brief consideration of the positions of other human rights-related international organisations on
the death penalty also reflects a strong trend towards promoting abolition.
Both the Office of the High Commissioner for Human Rights and the High Commissioner for
Human Rights herself are strongly opposed to the death penalty and promote it abolition. An
annual resolution of the Commission on Human Rights between 1997 to 2005 entitled ‘The
Question of the Death Penalty’ called for abolition by all states. While neither the Commission on
Human Rights nor the Human Rights Committee has asserted that the death penalty is a violation of
the right to life, recent resolutions have moved towards this, and notably the 2005 Resolution stated
that the Committee ‘convinced that the abolition of the death penalty is essential for the protection
of this right [to life]’.
49
Louise Arbour has stated that ‘I sense that this year [2006] there is an
opportunity to move towards abolition in some countries, moratorium in others and transparency in
some which still surround the application of the death penalty with secrecy.’
50
The UN General Assembly has also reached a majority in opposition to the death penalty. On 18
December 2007, the UN General Assembly adopted a resolution supporting a moratorium on capital
punishment. 104 countries voted in favour of the resolution, with 54 against and 29 abstaining.
It was the first resolution of its kind since attempts to pass similar versions were rejected in 1994
and 1999. The resolution calls upon all states to establish a moratorium on executions with a view
to establishing the death penalty, to progressively restrict the use of the death penalty and reduce
the number of offences for which it may be imposed, and to refrain from reintroducing the death
penalty where it has been abolished.
51
Both current UN Secretary-General Ban Ki-Moon and his predecessor Kofi Annan promote
the abolition of the death penalty. The UN Secretary-General is responsible for producing UN
Quinquennial Reports on Capital Punishment which detail the imposition of the death penalty
around the world and view the abolition of the death penalty as positive progress. Upon the passage
of the December 2007 Resolution, Ban Ki-Moon stated: ‘This is further evidence of a trend towards
ultimately abolishing the death penalty’.
International human rights groups are similarly united in their criticism of the death penalty.
Amnesty International, the International Commission of Jurists and Human Rights Watch have
labelled the death penalty a violation of the right to life and the protection against cruel, inhuman
and degrading treatment.
52 The American Civil Liberties Union believes it to be applied arbitrarily
49 Human Rights Resolution 2005/59Human Rights Resolution 2005/59
50 Ibid.
51 UN Document A/C.3/62/L.29 (1 November 2007)
52 Amnesty International The Death Penalty (located at http://web.amnesty.org/pages/deathpenalty-index-eng accessed on 21 February
2007). The Death Penalty: Condemned (International Commission of Jurists: Chatelaine, 2000), 8; ‘The Death Penalty in the United
States of America’ http://hrw.org/campaigns/deathpenalty;
16 The Death Penalty under International Law MAY 2008
and discriminatorily, and to constitute cruel and inhuman punishment.53 The Fédération
Internationale des ligues des Droits de l’Homme considers that all executions are a failure of
justice.54
Throughout Europe, progress towards the abolition of the death penalty is particularly advanced.
The Council of Europe and the European Union are strongly opposed to the death penalty,
regarding it as a form of cruel and inhuman punishment and torture and ‘which has no legitimate
place in the penal systems of modern civilised societies’.
55
The EU and the Council of Europe
consider the abolition of the death penalty to ‘contribute to the enhancement of human dignity and
the progressive development of human rights’.
56
Membership of the Council of Europe (since 1994)
and the European Union (since 1998) is conditional upon the abolition of the death penalty.
57
The American Bar Association does not maintain a formal position on the death penalty, but
is strongly in favour of a moratorium in order to review evidence that suggests that that race,
geography, wealth and personal politics can influence every stage of capital cases.
58
Conclusion
International law is clearly moving towards disallowing the death penalty and this is continuing
apace. The primary human rights treaty, the ICCPR, encourages states to abolish the death penalty,
and the Human Rights Committee has supported this encouragement with strong statements
promoting abolition. International custom is also becoming increasingly abolitionist, with more
states regarding the death penalty as being inconsistent with human rights standards. While the
death penalty remains legal at international law at the current time, it is highly likely that progress
towards abolition will continue. Arguments in favour of retaining the death penalty often appear to
rely on unproven allegations, such as its deterrent effect, or focus solely on the argument that the
decision to abolish or retain capital punishment remains within national sovereignty. Additional
arguments relying on religious or cultural grounds appear to be criticised when investigated in-
depth, and have not prevented other nations from abolition.
53 ‘The Death Penalty: Questions and Answers’, American Civil Liberties Union (9 April 2007) Available at http://www.aclu.org/capital/
facts/10534res20070409.html Accessed on 18 April 2007.
54 http://www.fidh.org/article.php3?id_article=3701 (Accessed 2 April 2007).
55 Supra Note 32, 8.
56 Declaration by the Presidency on behalf of the EU on the Occasion of the Third World Congress against the Death Penalty Brussels,
Third World Congress Against the Death Penalty 5863/07 (Presse 14) (Paris, 1 - 3 February 2007), Available at http://www.consilium.
europa.eu/ueDocs/cms_Data/docs/pressData/en/cfsp/92602.pdf accessed 18 April 2007; Supra Note 32, 8.
57 Supra Note 32, 6.
58 American Bar Association, Death Penalty Moratorium Implementation Project, http://www.abanet.org/moratorium/faq.html.
