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Capital Punishment and Human Rights
From: Cambridge University Press
| By:
William A. Schabas |
EDITOR'S INTRODUCTION |
Official punishment by execution has a history as old as society itself. Ironically, as more and more countries abandon its use, in recent years the death penalty has disturbingly become an easy way to score political points in the United States. In this extract from his book The Abolition of the Death Penalty in International Law, human-rights expert William A. Schabas surveys worldwide trends in the use of capital punishment and outlines many of the legal aspects surrounding the issue. |
 ictor Hugo described the death penalty as 'le signe spécial et éternel de la barbarie' (Écrits sur la peine de mort, 1979 edn). The archetypal form of State-authorized premeditated homicide, it is eternal in the sense that it has been with mankind since antiquity. Yet its abolition has been envisaged for at least two centuries, and with the accelerating progress of the movement for abolition, the end of this dark tunnel is now in sight. There are many ways to measure society's progress away from barbarism and towards a more humane condition. One is by the progressive development of legal norms. |
A growing trend
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| The electric chair, adopted by the State of New York in 1888, is still used in some American States, notably Florida. Death by this method is not always instantaneous. | |
The abolitionist movement's origins can be traced to the eighteenth century, and several States had eliminated the death penalty by the nineteenth century. However, the spread of abolitionist legislation is generally a post-Second World War phenomenon or, to put it another way, a development dating from the adoption of the Universal Declaration of Human Rights, on 10 December 1948. Of fifty-nine countries in the world that are abolitionist for all crimes, fifty-one have abolished the death penalty since 1948. Of fifteen that are abolitionist for ordinary crimes (that is, crimes other than those contrary to military law or committed in wartime or other exceptional circumstances), thirteen have taken this step since 1948. Of thirty-four countries that are now deemed abolitionist de facto (states that have not conducted executions for ten years), all but one have conducted executions since 1948; in other words, this de facto abolition is a relatively recent development. |
That this is a growing trend since the Second World War can be seen by comparing the dates of abolition (or, in the case of de facto abolition, the date of last execution). During the decade 1948-1957, six countries put an end to the death penalty. During the decade 1958-1967, the figure climbed to eight. From 1968 to 1977, the total was fifteen. From 1978 to 1987, nineteen countries abolished capital punishment. Thirty-seven countries abolished the death penalty between 1988 and 1996. Now a considerable majority, the 108 abolitionist States compare with eighty-three which still provide for the death penalty. |
In the first edition of The Abolition of the Death Penalty in International Law, published in 1993, I wrote: '[I]f the trend continues uninterrupted, sometime prior to the year 2000 a majority of the world's states will have abolished the death penalty.' Some critics suggested that I was overly optimistic about the spread of abolitionism. In fact, I was too conservative. It took only two years for abolitionist States to form a majority. During 1995 no less than six countries abolished the death penalty: Albania, Ukraine, South Africa, Mauritius, Moldavia and Bosnia and Herzegovina, and early in 1996 the Russian Federation declared a moratorium on executions and announced that it would proceed to abolish the death penalty within a year. |
On a regional level, Europe and Latin America stand far in front, with strong abolitionist traditions dating back to the last century. With the abolition of the death penalty in the Russian Federation, we may now speak of a zone that is approximately north of the fiftieth parallel where capital punishment no longer exists. Europe is for all intents and purposes abolitionist. Africa is the region where progress has been most stunning in recent years. Prior to 1990, the vast majority of African States still provided for the death penalty. Since then, many have formally abolished it, and in several others it has fallen into disuse. If the Arab countries of North Africa are removed from the calculation, a majority of African States have now abolished the death penalty. Southern Africa is now essentially free of the scourge of capital punishment. |
Although Canada abolished the death penalty for ordinary crimes in 1976, its southern neighbour, the United States, seems increasingly hardened in its resolve to maintain capital punishment. Several English-speaking Caribbean States and Cuba also continue to inflict the death penalty. On the Asian continent, China, Iran and Iraq all make extensive use of the death penalty. Islamic law is a serious obstacle to abolition of the death penalty, although an assumption that Moslem States make excessive use of the death penalty simply because this is provided for in their religious law would be an unfair generalization. On the African continent, Nigeria is the major user of capital punishment. It also continues to be employed occasionally in North Africa and parts of East Africa. |
International perspectives
Analysis of these trends in national legislation was not the purpose of this study. That task has been and continues to be well fulfilled by the five-year reports of the Secretary-General of the United Nations and by the thorough monitoring work of Amnesty International, a non-governmental organization that has played a central role in the abolitionist movement. That these developments can be measured in conjunction with an equally pronounced trend in the evolution of international human rights norms is what The Abolition of the Death Penalty in International Law has endeavoured to demonstrate. |
The first limitation on the death penalty in international law appeared in the 1929 Geneva Convention, dealing with prisoners of war taken in international armed conflicts. It did not prevent execution but provided for certain controls, in the hope that international pressure and prisoner exchanges might reduce the incidence of the death penalty. Outrage at the abuses of the death penalty during the Second World War, particularly with respect to civilian populations, led to the recognition of the 'right to life' as a normative objective, a 'common standard of achievement for all peoples and nations'. Hitherto, the right to life had appeared in some national constitutions, but almost always with its inevitable appendage, capital punishment. When the United States Constitution stated that no person 'shall be deprived of life ... without due process of law', it legitimized the death penalty, subject to certain controls. But the Universal Declaration of Human Rights, adopted in 1948, and its contemporary in the Inter-American regional system, the American Declaration on the Rights and Duties of Man, let the right to life stand alone, unblemished by its fatal exception. The mission of these instruments was not to outline precise legal norms aimed at immediate implementation but rather to set a common standard of achievement for humanity, to be attained and perfected in the future. Their drafters contemplated abolition of the death penalty but were unwilling to proclaim it openly. Yet the general recognition of the right to life, without exception, has proven far-sighted, for it has allowed the two Declarations to retain their relevance and to grow as part of an abolitionist future that their authors only faintly discerned. |
In 1949, the Geneva Conventions were revised and expanded. Only on closer examination is it evident that their goal is not regulation but elimination of the death penalty. By providing, in article 68-2 of the fourth Convention, that the death penalty cannot be imposed in an occupied territory whose law, prior to invasion, did not provide for capital punishment, States were subtly invited to abolish the death penalty. Their citizens would only be protected from abuse by another State, in wartime, to the extent that they would protect them from abuse in peacetime. The third and fourth Conventions added further procedural standards in the implementation of the death penalty, excluded civilian juveniles from execution altogether, and provided, in common article 3, a core due process guarantee in capital cases during international armed conflicts. |
During the 1950s and 1960s, three international human rights treaties were drafted that provided expressly for the death penalty as a limit to the right to life. The first of the three, the European Convention on Human Rights adopted in 1950, imposed few explicit restraints on the death penalty, although the scope of any implicit limits was never tested because the death penalty soon fell into virtual disuse in Europe. Before the end of the 1950s, the United Nations General Assembly had prepared a far more progressive provision concerning the right to life, one that limited the death penalty and even excluded it for certain categories of individuals. Even more advanced was a call for abolition of the death penalty, something which belonged more in a declaration than in a treaty but which was included as a compromise to satisfy the many States who felt that a right to life provision should not appear to sanction the death penalty. The third of the three treaties, the American Convention on Human Rights, was drafted during the 1960s, and went even further towards abolition than the Civil Rights Covenant. It was in reality an abolitionist treaty, at least for those States that had already abolished the death penalty, because it provided that capital punishment may not be reinstated once it has disappeared from a State's statute books. |
All three instruments approach the death penalty as an express limit to the right to life. It may not, however, be entirely appropriate to use the term 'limitation' to describe the death penalty in the right to life provisions. Limitations are a phenomenon common to human rights instruments in both domestic and international law. They are not always formulated similarly in the various systems, indeed, they are often expressed differently within the same instrument, depending on the right which is being limited. From a theoretical standpoint, however, they are invariably justified only to the extent that they protect a valid and competing interest. For example, freedom of expression may be limited in the case of hate propaganda, recognizing the valid competing interest of individuals and groups to be protected from discrimination. The death penalty, although it appears in the international instruments as such a limitation, does not meet this standard of a valid and competing interest. Admittedly, it may be argued that the death penalty is necessary in order to deter anti-social behaviour. But this argument, a favourite of retentionists, was virtually absent as a consideration of the drafters of the Civil Rights Covenant, the European Convention and the American Convention. The death penalty is a limit unlike any other in the international human rights instruments, a limit whose sole justification is the prudence of its drafters, aware of its anomaly but fearful of alienating retentionist States and discouraging them from ratification. |
The Civil Rights Covenant and the American Convention had barely come into force when international organizations charged with the protection of human rights began preparing for a further development, the adoption of protocols to the international human rights treaties that would abolish the death penalty. The European regional system was the first to take this step, and Protocol No. 6 to the European Convention abolishing the death penalty came into force in 1985, followed by its United Nations and Inter-American counterparts at the end of the decade. The common standard of achievement, only dimly envisaged by the drafters of the Universal Declaration in 1948, has become, with the protocols, a legal reality. |
War and peace
The three protocols still tolerate the death penalty in time of war. This final exception was included in order to encourage ratification by the many States who are not prepared to renounce use of capital punishment during armed conflict. Indeed, it is in time of war when the greatest abuse of the death penalty occurs, criteria of expediency and State terror stampeding panicked governments towards inhumane excesses unthinkable in time of peace. Strangely, the principal argument in favour of the death penalty in time of war, deterrence, has been discredited by criminologists. If States reject deterrence as a rationale for capital punishment in peacetime, why should it be valid in time of war? Until international law thoroughly abolishes the death penalty, in war as well as in peace, the norms of international humanitarian law will retain their relevance. The limitations on use of the death penalty in the 1949 Geneva Conventions were strengthened somewhat in 1977 in the two Protocols Additional, which expanded the categories of individuals covered by limitations and restrictions on capital punishment. |
Most of the legal norms that have been developed since 1948 concern limitation of the death penalty, that is, its partial abolition. They deal with procedural safeguards, with restrictions ratione personae and ratione materiae, and with the right to seek pardon, reprieve, commutation and amnesty. Some of them have most certainly acquired the status of customary norms of international law, in that they represent the general practice of States and are accepted as law (opinio juris). |
That procedural safeguards must be respected in all capital trials is without doubt a norm of customary law. Its universal recognition is consigned in common article 3 to the Geneva Conventions of 1949, which proscribes the carrying out of executions 'without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples'. These minimum standards apply, according to the Conventions, in armed conflicts not of an international character. The Geneva Conventions of 1949 have been ratified by virtually every State in the world, and common article 3 has been recognized as expressing norms of customary international law. If the norms of common article 3 are recognized in the extreme conditions of non-international armed conflict as the lowest common denominator of humane conduct, then a fortiori they most surely obtain during international armed conflict and in time of peace. But what are these judicial guarantees that are 'recognized as indispensable by civilized peoples'? The answer will be found in the more detailed provisions of the international treaties, the resolutions of bodies such as the Economic and Social Council and the General Assembly of the United Nations, and the declarations by States in their reports to the Secretary-General and in their periodic reports to the Human Rights Committee. |
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