The Committee against Torture should take a stronger stance against the death penalty

The Committee’s review last year of three countries still administering capital punishment ­– Iraq, China, and Jordan – yielded inconsistent recommendations. While it recommended that China abolish capital punishment, it only recommended that Iraq reserve the death penalty for the most serious crimes. In its review of Jordan, which in December 2014 ended an eight-and-a-half-year moratorium on capital punishment, the Committee did not make a single reference to the death penalty.

A worldwide trend towards the abolition of the death penalty gained momentum in 2007 with the UN General Assembly vote in favour of Resolution A/RES/62/149 which, while non-binding, proclaims a global moratorium on the death penalty with a view to abolition, so as to restrict the number of deaths and respect the rights of those on death row. The moratorium was approved, with 104 votes for and 54 against, including China, Iraq and Jordan, and 29 abstentions.

Yet, the trend has been hampered by a recent backlash: several States, first and foremost in Asia, have re-instituted the death penalty or increased the number of executions. In fact, 2015 saw the highest number of recorded executions in 25 years.

In December 2014, after a terrorist massacre in a school in Peshawar, Pakistan put an end to its seven-year moratorium on the death penalty. An estimated 300 detainees have been executed since, and about 8,000 prisoners on death row are awaiting the same fate.

The Papua New Guinea and Kiribati are discussing the re-introduction of the death penalty and Indonesia resumed executions for drug traffickers in 2015. Outside Asia, Egypt and Nigeria made recent headlines for mass sentencing convicted terrorists to death. It is estimated that Egypt sentenced more than 500 and Nigeria more than 600 people to death. Several states have resumed capital punishment in a flawed attempt to fight terrorism and internal instability.

Death penalty: Challenging the absolute prohibition of torture and ill-treatment

While the death penalty is still widely understood as a lawful exception to the right to life, it is also increasingly challenged and viewed as a violation of the absolute prohibition of torture and other forms of ill-treatment. In a statement in 2012, the UN Special Rapporteur on Torture, Juan Méndez, urged States to carefully “consider whether using the death penalty per se fails to respect the inherent dignity of the person, causes severe mental and physical pain or suffering and amounts to torture or cruel, inhuman or degrading treatment.“

Méndez argued that regional and national jurisprudence increasingly view the death penalty as constituting torture under articles 1 and 16 of the Convention and that this evolving international standard “is developing into a norm of customary international law, if it has not done so already.”

The European Court of Human Rights has also found the death penalty incompatible with the prohibition of ill-treatment. In the case of Al-Saadoon and Mufdhi v. the United Kingdom, the Court reasoned that the death penalty deliberately destroyed a human being and caused physical pain as well as intense psychological suffering. The Court thus considered the death penalty as being contrary to the prohibition against inhuman and degrading treatment. This jurisprudence must, of course, to be understood against the background of Protocol 13 that abolishes the death penalty in Europe and has been ratified by 46 of the 47 Member States. The Court’s reasoning in the Al-Saadoon and Mufdhi case must, however, apply irrespective of the consensus among Member States.

Mixed messages

The position of the Committee on the death penalty is far from being as clear.

The first references to the death penalty merely mentioned the States under review that had abolished it. More recently, references to the death penalty mostly raise concerns about: (1) the conditions of detention of convicted prisoners on death row (e.g. Benin 2007; Gabon 2012); (2) the secrecy surrounding the time of execution (e.g. Japan 2007, Belarus 2011); (3) obstacles to access to legal representation (e.g. Japan 2007); and (4) the lack of information on executions (e.g. Kuwait 2011).

What is more, the Committee’s Recommendations pertaining to the death penalty mostly involved: (1) ratifying the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty (e.g. Belarus 2011); (2) respecting due process guarantees of detainees facing the death penalty (e.g. Cuba 2012); and (3) providing data on the number of people who were executed (e.g. Yemen 2010).

Now some of its Concluding Observations actually suggest that the Committee considers the death penalty per se a violation of Article 16. With regard to Sierra Leone (2014), for instance, the Committee stated that “while welcoming the official moratorium on executions since 2011 and the current efforts of the State party to do away with the death penalty, the Committee remains concerned that the death penalty has not yet been officially abolished (Articles 2 and 16)”.

Other Recommendations adopted by the Committee, however, do not seem to find that the death penalty per se is in conflict with the Convention. In August 2015, the Committee recommended that Iraq, for instance, “should ensure that if the death penalty is imposed it is only for the most serious crimes and in compliance with international norms.” Nothing in the Concluding Observations on Iraq indicates that the death penalty is contrary to the prohibition of cruel, inhuman or degrading punishment.

Poverty and fair trials

A further reason why the Committee should consider the death penalty as cruel, inhuman or degrading punishment in terms of Article 16 of the Convention is that it is connected to poverty, discrimination and systemic problems in the administration of justice.

Irrespective of the region or country, capital punishment is predominantly administered to the poorest and most marginalized groups of society. It is also mostly used in countries that have a flawed criminal justice system that lacks forensic means, an independent and impartial judiciary, and free legal aid, and that relies heavily on confessions. Therefore individuals who are sentenced to death do not usually have a fair trial according to international standards.

With the death penalty on the rise in several regions, it is important that the Committee adopt a clear language and denounce the practice as cruel, inhuman or degrading punishment or torture in its Concluding Observations.

Nicole Bürli

OMCT Human Rights Adviser