36/27 High-level panel discussion on the question of the death penalty - Report of the United Nations High Commissioner for Human Rights

GE.17-11122(E)



Human Rights Council Thirty-sixth session

11-29 September 2017

Agenda items 2 and 3

Annual report of the United Nations High Commissioner

for Human Rights and reports of the Office of

the High Commissioner and the Secretary-General

Promotion and protection of all human rights, civil,

political, economic, social and cultural rights,

including the right to development

High-level panel discussion on the question of the death penalty

Report of the United Nations High Commissioner for Human Rights

Summary

The present report is submitted pursuant to Human Rights Council resolution 30/5.

It provides a summary of the high-level discussion on the question of the death penalty held

on 1 March 2017 at the thirty-fourth session of the Council. The objective of the panel

discussion was to continue the exchange of views on the question of the death penalty and

to address violations related to the use of the death penalty, in particular with respect to the

prohibition of torture and other cruel, inhuman or degrading treatment or punishment.

United Nations A/HRC/36/27

I. Introduction

1. Pursuant to its resolution 30/5, the Human Rights Council held its biennial high-

level panel discussion on the question of the death penalty on 1 March 2017, at its thirty-

fourth session. The panel was chaired by the President of the Human Rights Council,

opened by the United Nations High Commissioner for Human Rights and the Minister of

State for European Affairs of France, and moderated by Professor of Social History at the

University of the West Indies Verene A. Shepherd. The panellists were the former President

of Tunisia (2011-2014), Moncef Marzouki; the Chair of the Kenya National Commission

on Human Rights, Kagwiria Mbogori; the representative of Thailand to the Association of

Southeast Asian Nations (ASEAN) Intergovernmental Commission on Human Rights,

Seree Nonthasoot; and the Special Rapporteur on torture and other cruel, inhuman or

degrading treatment or punishment, Nils Melzer.1

II. Opening remarks and statements

2. In his introductory remarks, the President of the Human Rights Council pointed out

that, in its resolution 30/5, the Council had requested the organization of the panel

discussion and decided that it would address violations related to the use of the death

penalty, in particular with respect to the prohibition of torture and other cruel, inhuman or

degrading treatment or punishment.

3. The United Nations High Commissioner for Human Rights stated that capital

punishment raised serious issues in relation to human dignity and human rights, including

the right to life and the prohibition of torture and other cruel, inhuman or degrading

treatment or punishment. 2 He recalled that the Supreme Court of Canada and the

constitutional courts of Albania, Hungary, Lithuania, South Africa and Ukraine had all

considered that the death penalty violated that prohibition. International and national bodies

had concluded that several methods of execution were likely to violate the prohibition of

torture because of the pain and suffering they often inflicted on the convicted person.

Accordingly, it was increasingly difficult for a State to impose the death penalty without

violating international human rights law. He highlighted that the “death row phenomenon”

— a long and highly stressful period that most individuals endure while waiting for years,

even decades, frequently in isolation, for an uncertain outcome — had been found to

constitute torture or other cruel, inhuman or degrading treatment or punishment by the

Human Rights Committee and other international, regional and domestic bodies, including

the Supreme Court of California, in the United States of America. He also recalled that the

former Special Rapporteur on torture and other cruel, inhuman or degrading treatment or

punishment had referred to the existence of an evolving standard according to which the

death penalty constituted torture or other cruel, inhuman or degrading treatment or

punishment and had recommended that the Human Rights Council should request a

comprehensive legal study to be conducted on the emergence of a customary norm

prohibiting the use of the death penalty under all circumstances (see A/67/279, paras. 53-64

and 79).

4. The High Commissioner noted that almost 10 years had passed since the General

Assembly had adopted its resolution 62/149, in which it had first called upon States to

establish a moratorium on executions with a view to abolishing the death penalty. During

that decade, global resistance to capital punishment had increased, to the point where three

quarters of all countries had either abolished the death penalty or did not practice it. There

was cause for concern, however, as the number of executions in some States had increased

and as some States where a moratorium had been in place for many years had recently

1 The webcast is available at http://webtv.un.org/search/panel-discussion-on-death-penalty-9th-

meeting-34th-regular-session-human-rights-council/5343577825001?term=death penalty.

2 The opening statement of the High Commissioner is available at

www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=21258&LangID=E.

resumed executions. Persons sentenced to death and their family members had inflicted on

them severe and unjustifiable mental and physical suffering, including as a result of

inadequate information about the timing of executions, the failure to return the body to

families for burial and a lack of information about the location of the burial. Referring to

the Guiding Principles on Business and Human Rights: Implementing the United Nations

“Protect, Respect and remedy” Framework, the High Commissioner commended the steps

taken by pharmaceutical companies to prevent prison authorities from purchasing

medication for use in lethal injections. Use of the death penalty should end, especially since

it was applied in a manner that was capricious and frequently discriminatory and failed to

demonstrate any deterrent effect beyond that of other punishments.

5. In his opening remarks, the Minister of State for European Affairs of France noted

that the death penalty was being applied in over 20 countries and that there had been a

record number of executions over the previous two years, following breaks in moratoriums

and calls for the reintroduction of the death penalty. Some were trying to justify the

reintroduction of capital punishment by invoking security concerns, such as terrorism or

drug trafficking, despite the fact that the death penalty had no deterrent effect and was not a

guarantee of security; moreover, renouncing capital punishment did not preclude a firm

response to terrorism. The Minister concurred with the High Commissioner in highlighting

that the use of the death penalty led to violations of the human rights of those convicted and

of their relatives, and added that this had been mentioned in the reports of the Secretary-

General and affirmed by the Human Rights Council. The death penalty was inhuman,

unjust and ineffective. Hopefully, the panel discussion would encourage the Human Rights

Council to take action on the subject. Abolishing the death penalty required the

participation of many actors. The Minister paid tribute to the work carried out in that regard

by representatives of civil society, journalists, human rights defenders and parliamentarians.

6. While international law did not explicitly equate the death penalty with torture, it did

view it as incompatible with the right to life. Whatever the methods used and whatever the

circumstances in which the executions were carried out, the death penalty always led to the

intense physical and psychological suffering of those convicted and their relatives. The use

of the death penalty did not respect human dignity and was undeniably cruel, inhuman or

degrading treatment, a view already expressed by the European Court of Human Rights.

The fight against the death penalty was a political struggle and a question of principle.

Respect for human rights motivated France to fight for the universal abolition of the death

penalty and the absolute prohibition of torture and other cruel, inhuman or degrading

treatment or punishment. The fact that two thirds of States had renounced capital

punishment (in law or in practice), compared to 16 States 40 years ago, indicated that,

despite recent setbacks, the trend was towards the abolition of the death penalty. Abolition

initiatives have been launched in all regions and progress in Africa was particularly

encouraging, confirming that the issue was one of principle, not culture. National judicial

systems were urged to strengthen efforts to abolish the death penalty.

III. Contribution of the panellists

7. In her introduction, the moderator of the panel reiterated that the trend was in the

direction of abolition, as over 160 States had either abolished the death penalty, had

imposed a de jure or de facto moratorium on the use of the death penalty, did not actually

practise it or did not have anyone on death row. In the Commonwealth Caribbean, no one

had been executed since 2008 and hardly any countries had issued death sentences. Jamaica

had not issued a death sentence since 2010 and no one there was on death row. That was in

marked contrast to the situation between the sixteenth and nineteenth centuries, when the

brutality of colonialism included the indiscriminate use of capital punishment in the

Caribbean region. The retention of the death penalty was a colonial throwback. The

prevalence of class and racial discrimination in the application of the death penalty had led

to the persecution of the poor and the most marginalized. The psychological harm it caused

and the potential for wrongful convictions and executions meant there was a need for

exacting standards and a heightened level of due process in capital cases. Rising crime rates

in some societies had led to calls for an increase in the use of the death penalty but the

number of executions was already high: at least 1,634 people had been executed in 25

States in 2015.3 The moderator noted that some States had executed individuals under 18

years of age and that the main methods of execution qualified as torture or other cruel,

inhuman or degrading treatment or punishment. In accordance with article 6 of the

International Covenant on Civil and Political Rights, every human being had the inherent

right to life, a right that should be protected by law. No one should be arbitrarily deprived

of his or her life. The ideology, history and contemporary politics that shaped the

application of the death penalty needed to be questioned and the stories of those wrongfully

convicted and of the families who witnessed executions needed to be told in order to

mobilize support for the abolition of the death penalty.

8. The former President of Tunisia spoke of the some 200 death penalty case files he

had looked at involving individuals who had been awaiting death in deplorable conditions

with no possibility of amnesty or of having their sentences commuted. He underlined the

psychological torture that such individuals had been subjected to, some for over a decade.

He said that it was preferable to commute a death sentence to life imprisonment as a first

step towards a presidential amnesty. In his remarks, he also focused on the attempts to

abolish the death penalty in Tunisia, the difficulties faced, the moratorium that had been put

in place and the fact that the death penalty had not been applied since 1991, adding that in

Tunisia the efforts to abolish the death penalty amounted to a political and cultural battle.

One interpretation of the Koran viewed the killing of one person as killing the whole of

humanity. He noted that some States had recently abolished the death penalty and said he

hoped that Muslim countries would follow suit. Abolition represented a step in the progress

of civilization, it was not a political issue.

9. The Chair of the Kenya National Commission on Human Rights explained why the

death row phenomenon constituted torture or other cruel, inhuman or degrading treatment

or punishment and spoke of the role of the National Commission in addressing the death

row phenomenon. The Constitution of Kenya guaranteed the right to life, but that right was

not absolute and Kenya retained the punishment of death by hanging for capital offences

such as treason, murder, robbery or attempted robbery with violence. That said, Kenya had

had a de facto moratorium on the death penalty since 1987, leading to an increase in the

number of individuals on death row and to overcrowding. Efforts had been made to

decongest prisons through the commutation of death sentences to life imprisonment: the

President had commuted 223 death sentences to life imprisonment in 2003, 4,000 in 2009

and 2,747 in 2016. Although some death row inmates had been pleased with the

commutations, many of them had refused to work, to be rehabilitated or to be reintegrated

into the prison population, stating they had been ready to die for many years. In a 2011

survey of death row inmates, the National Commission had found that, given the

weaknesses at various levels of the judicial process and the lack of adequate legal

representation for those charged with capital offences, there was a real likelihood of

miscarriage of justice and an extremely high possibility of wrongful conviction.

10. The Government of Kenya had acknowledged, in reports, that extended stays on

death row caused undue mental anguish, suffering, psychological trauma and anxiety and

constituted inhuman treatment. A public inquiry was being conducted by the Power of

Mercy Advisory Committee, with support from the Kenya National Commission on Human

Rights, to collect the views of Kenyan citizens regarding the abolition of the death penalty.

Nevertheless, Kenyan courts continued to sentence offenders convicted of capital offences

to death because that was the mandatory sentence for such offences. The Chair of the

National Commission gave an overview of Kenyan jurisprudence on the issue of the

constitutionality of presidential commutations of death sentences to life imprisonment and

highlighted the disagreement between the Court of Appeal and the lower courts. In 2015,

the National Commission, together with civil society stakeholders who were members of a

coalition campaigning against the death penalty, had sent a petition to the Supreme Court

questioning the constitutionality of the death penalty; the Supreme Court was expected to

issue directions for the establishment of new jurisprudence. The National Commission had

3 See https://www.amnesty.org/en/latest/news/2016/04/Alarming-surge-in-recorded-executions-sees- highest-toll-in-more-than-25-years/.

been and would remain a staunch advocate against the death penalty in Kenya. There was

no humane way to extinguish a human life.

11. In response to questions from the moderator, the representative of Thailand to the

ASEAN Intergovernmental Commission on Human Rights made remarks that focused on

the following: the impact of a lack of transparency and efforts under way in Asia to address

that lack of transparency; the most effective actions and policies for the long-term

prevention of secret executions; whether a lack of transparency constituted torture or other

cruel, inhuman or degrading treatment or punishment; and whether the mandatory use of

the death penalty violated the prohibition of torture or other cruel, inhuman or degrading

treatment or punishment.

12. In relation to the lack of transparency, secret executions carried out without the

knowledge of family members constituted cruel, inhuman or degrading treatment or

punishment for the prisoner and his or her family members, whose psychological condition

was negatively affected by the lack of information and the abrupt and clandestine nature of

the execution. A lack of transparency was symptomatic of a deficiency in the rule of law

because transparency entailed a clear regulatory framework and the provision of

information, including: a clear and fully disclosed reasoning for the death sentence; a

proper procedure for seeking a pardon or commutation of the death penalty; and advance

notification of the execution following the denial of pardon. Defendants with access to a

lawyer had to have information on the qualifications and experiences of the lawyer and had

to be informed that they could change lawyers. Particularly in States members of ASEAN,

the existence of a mandatory death penalty, which compelled a court to impose the death

penalty without providing defendants with the opportunity to address motivation and

mitigating factors, violated defendants’ right to be heard and their right to life. Moreover,

the mandatory death penalty precluded the courts from considering the circumstances of the

offence and of the offender and any relevant aggravating factors.

13. Thailand had abolished the death penalty for minors and pregnant women and, as it

had not executed anyone for eight years, was approaching de facto abolitionist status.

However, Thailand should not only continue with its policy of gradually abolishing the

death penalty, it should also examine the conditions of the approximately 120 prisoners

who had been sentenced to death and who had sought pardons. The duration and condition

of their incarceration and whether their long-term imprisonment constituted a form of

torture or other cruel, inhuman or degrading treatment or punishment should be considered.

Guidelines stipulating that prisoners who had been on death row for a certain amount of

time should be entitled to an automatic pardon and release should be established. Thailand

should engage with other ASEAN member States, especially those that retained the death

penalty, to encourage abolition.

14. That was all the more urgent given that efforts had recently been made to

reintroduce the death penalty. In that regard, once a State had ratified the Second Optional

Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition

of the death penalty, no reservation was possible, nor was the reintroduction of the death

penalty. All States, in particular those that had ratified the Covenant, were called upon to

adopt a strong position in favour of abolition. In its draft general comment No. 36, on

article 6 of the Covenant, the Human Rights Committee should emphasize that States

parties to the Covenant must not increase the number of crimes for which the death penalty

could be imposed. All States were urged to reconsider the types of offences for which the

death penalty was used and always apply the death penalty with extreme care and

safeguards, and only for the most serious crimes. The death penalty should not be used to

punish those guilty of drug offences, as capital punishment did not address the root causes

of those offences and only offered a short-term solution. Moreover, it had been observed

that the death penalty was often sought, in relation to drug offences, for political opponents

and individuals from poor and marginalized populations.

15. In terms of future steps, the representative of Thailand to the ASEAN

Intergovernmental Commission on Human Rights called for up-to-date, comprehensive,

disaggregated and transparent data, including on the number of executions, the number of

prisoners on death row and the time lapse from sentencing to execution. Data should be

disaggregated by offence, gender and sexual orientation, nationality and immigration status,

economic and social status, and the profile of lawyers assigned to provide counsel. It should

be used to analyse the potential for discrimination and the effectiveness of legal aid, to

enhance transparency in the criminal justice system and to educate judges and public

figures. The international human rights system, particularly the Human Rights Committee,

and regional mechanisms had a role to play in sharing information and experiences and

could be agents for change on the question of the death penalty. At the national level, the

adoption of a national human rights plan that incorporated a commitment to phase out the

death penalty would be helpful, as would civil society advocacy. In addition, it would be

important to reform the criminal justice system, including by reconsidering the offences

subject to the death penalty.

16. The Special Rapporteur on torture and other cruel, inhuman or degrading treatment

or punishment focused on whether there was an emerging customary norm prohibiting the

death penalty in all circumstances. While customary international law had not yet evolved

to prohibit the death penalty in all circumstances, which meant that it was theoretically

possible to retain the death penalty in compliance with international law, in practice the

increasingly rigorous conditions imposed by international human rights jurisprudence made

it almost impossible to carry out the death penalty without violating the prohibition of

torture and other cruel, inhuman or degrading treatment or punishment. While article 6 of

the International Covenant on Civil and Political Rights did not prohibit the death penalty,

it subjected it to strict conditions. Article 7, however, prohibited torture and other cruel,

inhuman or degrading treatment or punishment outright, leading to the conclusion that any

execution that violated article 7 constituted an act of arbitrary deprivation of life.

17. Furthermore, since the adoption of the Covenant in 1966, international, regional and

national practices and laws had evolved to favour the abolition of the death penalty. In that

regard, the Special Rapporteur recalled the American Convention on Human Rights (1969)

and the Protocol to that Convention to Abolish the Death Penalty (1990); the Convention

for the Protection of Human Rights and Fundamental Freedoms (1950), Protocol No. 6 to

that Convention concerning the abolition of the death penalty as amended by Protocol No.

11 (1983) and Protocol No. 13 to that same Convention concerning the abolition of the

death penalty in all circumstances (2002); and the Second Optional Protocol to the

International Covenant on Civil and Political Rights, aiming at the abolition of the death

penalty (1989). In contrast to the International Military Tribunal at Nuremberg (1945-1946)

and the International Military Tribunal for the Far East (1946), the Rome Statute of the

International Criminal Court (1998), the Statute of the International Tribunal for the

Prosecution of Persons Responsible for Serious Violations of International Humanitarian

Law Committed in the Territory of the Former Yugoslavia since 1991 (1993) and the

Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible

for Genocide and Other Serious Violations of International Humanitarian Law Committed

in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other

Such Violations Committed in the Territory of Neighbouring States between 1 January and

31 December 1994 (1994) all prohibit the death penalty, even for war crimes, crimes

against humanity and genocide. Over 160 Member States had abolished the death penalty

or had introduced moratoriums, in law or in practice. The global trend towards the complete

abolition of the death penalty might ultimately result in a generalized customary prohibition

of the death penalty. Moreover, according to the European Court of Human Rights, the

death row phenomenon4 and any method of execution or the fear of execution5 amounted to

inhuman and degrading treatment.

18. The Special Rapporteur also spoke of methods of execution that inflicted

unnecessary mental or physical suffering or humiliation and had been found to violate the

prohibition of torture and other cruel, inhuman or degrading treatment or punishment. They

included execution by stoning, gas asphyxiation, hanging, the electric chair, burning, live

burial, decapitation, lethal injection (when untested and/or not administered properly) and

any form of secret or public execution. In a 2015 report, the Secretary-General concluded

that the death penalty was incompatible with human dignity, the right to life and the

4 Soering v. United Kingdom, judgment of 7 July 1989. 5 Al-Saadoon and Mufdhi v. the United Kingdom, judgment of 2 March 2010.

prohibition of torture and other cruel, inhuman or degrading treatment or punishment (see

A/HRC/30/18, para. 55). He highlighted that many national courts had reached the same

conclusion and noted that a number of states in the United States of America had abolished

the death penalty because it constituted an extreme form of physical and psychological

suffering that violated the prohibition of torture and other cruel, inhuman or degrading

treatment or punishment.

19. The Special Rapporteur emphasized that the issue of capital punishment was not

simply a technical legal question. It was a retributive system and a deliberately

dehumanizing punishment that intentionally inflicted pain and anguish on convicts and their

families and that could be used to kill innocent people and irreparably harm their loved

ones. The inherent human dignity of convicts, victims and families, and the dignity and

moral authority of human society, needed to be reflected upon.

IV. Summary of the discussion

20. During the interactive phase of the panel discussion, representatives of the following

States spoke: Botswana, Chile, Mexico,6 Brazil,7 Croatia,8 Finland,9 Singapore,10 Portugal,11

Paraguay, Montenegro, Australia, Greece, Spain, Argentina, Portugal, Mexico, New

Zealand, Switzerland, Albania, Liechtenstein, Colombia, Algeria, Fiji, Papua New Guinea,

India, Holy See, Kenya and Italy. Representatives of the following intergovernmental

organizations also took the floor: the European Union and the Council of Europe.

Representatives of the following non-governmental organizations contributed to the

discussion: Amnesty International, American Civil Liberties Union, Center for Global

Nonkilling, International Federation of Action by Christians for the Abolition of Torture,

Friends World Committee for Consultation, Ensemble contre la peine de mort and

International Bar Association.12

A. General remarks on the use of the death penalty

21. A large number of representatives of a range of legal systems, traditions, cultures

and religious backgrounds expressed their total opposition, in all circumstances and at all

times, to the death penalty and firmly supported its universal abolition. In that regard, they

6 On behalf of Belgium, Benin, Costa Rica, France, Mongolia, the Republic of Moldova and Switzerland.

7 On behalf of Albania, Andorra, Argentina, Armenia, Australia, Austria, Belgium, Benin, Bosnia and

Herzegovina, Bulgaria, Chile, Colombia, Croatia, Cyprus, Czechia, Denmark, Ecuador, Estonia, Fiji,

Finland, France, Georgia, Germany, Greece, Haiti, Honduras, Hungary, Iceland, Ireland, Italy, Latvia,

Liechtenstein, Lithuania, Luxembourg, Malta, Mexico, Monaco, Mongolia, Montenegro, Namibia,

the Netherlands, New Zealand, Norway, Panama, Paraguay, Poland, Portugal, Romania, Rwanda, San

Marino, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Timor-Leste, the former Yugoslav

Republic of Macedonia, Ukraine and Uruguay.

8 On behalf of Austria and Slovenia.

9 On behalf of Denmark, Estonia, Iceland, Latvia, Lithuania, Norway and Sweden.

10 On behalf of the Bahamas, Bahrain, Bangladesh, Barbados, Brunei Darussalam, China, the

Democratic People’s Republic of Korea, Egypt, Ethiopia, India, Indonesia, Iran (Islamic Republic of),

Iraq, Jamaica, Kuwait, the Lao People’s Democratic Republic, Malaysia, Myanmar, Oman, Pakistan,

Qatar, Saudi Arabia, Singapore, the Sudan, Uganda, the United Arab Emirates and Yemen.

11 On behalf of Angola, Brazil, Cabo Verde, Equatorial Guinea, Guinea Bissau, Mozambique, Sao

Tome and Principe and Timor-Leste.

12 Statements by the representatives of the following States were not delivered owing to lack of time:

Mongolia, the United Kingdom of Great Britain and Northern Ireland, Saudi Arabia, Russian

Federation and the Sudan. Statements by the representatives of the following non-governmental

organizations were not delivered owing to lack of time: the Alsalam Foundation, Americans for

Democracy and Human Rights in Bahrain, the Bahrain Institute for Rights and Democracy, Human

Rights Advocates, the Swiss Catholic Lenten Fund, Plataforma Internacional contra la Impunidad and

the Conseil international de soutien à des procès equitables et aux droits de l’homme. All statements

are on file with the secretariat of the Human Rights Council and are available for consultation.

welcomed the continuing trend towards abolition and called for a universal moratorium

with a view to universal abolition. Some representatives referred to the call for abolition as

central to their foreign policy. Others referred to the remarks made by the Secretary-

General 13 and the High Commissioner 14 at the start of the thirty-fourth session of the

Human Rights Council, in which they touched on the death penalty and called for action

towards its abolition. Reference was also made to the argument made by the former Special

Rapporteur on extrajudicial, summary or arbitrary executions that international law could

no longer be described as “retentionist”, but instead that it required the progressive

abolition of the death penalty (see A/71/372, para. 39). A number of representatives urged

States to act in accordance with the spirit of article 6 (6) of the International Covenant on

Civil and Political Rights.

1. National policies and practices regarding the question of the death penalty

22. Several State representatives said that the right to life was enshrined in their national

Constitutions, prohibiting the imposition and implementation of executions, and that the

protection of that right was a State’s duty. Others pointed out that it was critical for States

to interpret the right to life broadly. Many representatives said that the death penalty was

incompatible with human rights, justice and human dignity, and violated the right to life.

Some also referred to the dignity of the whole of society and said that the death penalty

made killers of us all and that it was an affront to the dignity of all human beings. They

emphasized that the abolition of the death penalty contributed to the progressive

development and consolidation of human rights. The death penalty had no place in modern

policies to combat crime. The aim of prison systems was to rehabilitate and reintegrate

people into society, and the death penalty went against that aim. Some representatives

emphasized that the abolition of the death penalty was a matter of principle, not culture.

Accordingly, the death penalty in States that retained it should be progressively

discontinued.

23. In terms of the practices adopted by States, it was noted that Fiji had removed the

only reference to the death penalty in its legal system and that it did so under the weight of

domestic and international opinion, because there was the necessary political will and as a

result of the discussions held during the 2014 universal periodic review. Mongolia too had

amended its criminal code to reflect the decision to abolish the death penalty. Some

representatives noted that capital punishment had, during recent years, been reinstated in a

number of States following a period of moratoriums. Others expressed concern about an

increase in recent executions in States in the Persian Gulf region. The decrease in death

sentences and executions in the United States during 2016 was noted, as was the fact that

death sentences in that country were imposed in an arbitrary manner, depending not on the

seriousness of the crime but on the poor quality of defence lawyers, the race of the accused

or the victim and the county and state in which the crime occurred. Some representatives

highlighted incremental reforms introduced to phase out the use of the death penalty. In that

regard, reference was made to the experience of the United Kingdom of Great Britain and

Northern Ireland. Among the incremental steps that States could take were restricting the

scope of the application of the death penalty and strengthening safeguards, appeals and

clemency options.

24. Some representatives stated that the death penalty was a matter of criminal justice,

rather than human rights, and that its use was vital for guaranteeing peace, security and

human rights for their citizens. There was no international consensus that the death penalty,

when applied in accordance with due process and judicial safeguards, violated the

prohibition against torture and other cruel, inhuman or degrading treatment or punishment.

Rejecting that argument, several other representatives highlighted the fact that human rights

were universal and every State’s criminal justice system should respect international human

rights law obligations. Several representatives referred to various provisions of international

human rights treaties that imposed restrictions on the use of the death penalty.

13 https://www.un.org/sg/en/content/sg/speeches/2017-02-27/secretary-generals-human-rights-council- remarks.

14 www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=21229&LangID=E.

25. A small number of delegates said that it was the sovereign right of States to impose

the death penalty. They mentioned the rights of victims of crimes, and public opinion in

favour of capital punishment, to justify the retention of the death penalty. In response,

others called for the voices of victims to be heard as part of an open discussion about the

abolition of the death penalty.

26. Some representatives stated that the death penalty remained an important deterrent

against the most serious crimes. Challenging that approach, several other representatives

said that the death penalty was an ineffective and unproven deterrent of crime. Capital

punishment did not serve any deterrent purpose in combating crime, including terrorism,

and there was no need for any State to expand the use of the death penalty to include

terrorism-related offences. Any measures to counter terrorist threats needed to be consistent

with human rights. The harshness of the death penalty risked fanning the flames of

extremism. Moreover, as no legal system was perfect, any miscarriage of justice in capital

cases could be irreversible and fatal. The mere fact that innocent people had been executed

was argument enough for abolishing the death penalty.

2. Regional efforts

27. Several representatives referred to regional efforts towards the abolition of the death

penalty, including the adoption of the Protocol to the American Convention on Human

Rights to Abolish the Death Penalty and of the declaration made at the Eleventh Summit of

the Heads of State and Government of the Portuguese-Speaking Countries. 15

Representatives called for Africa to become the next abolitionist continent and said that, for

that reason, the next regional congress against the death penalty would be held in Africa in

2018, in preparation for the Seventh World Congress against the Death Penalty, to be held

in Brussels in February 2019. The representative of the Council of Europe reported that it

was exploring ways to further promote the abolition of the death penalty worldwide and

that it would share the results of its study on that topic. Other representatives spoke of

efforts made to ensure that Europe would become an “execution-free continent” and

deplored the recent executions in Belarus. The trend towards reinstating or broadening the

application of capital punishment in the Asia-Pacific region, particularly in relation to

crimes concerning drug offences, was also discussed. It was noted that States were

increasingly interconnected in terms of their cooperation on criminal justice matters. With

regard to extradition requests, it was suggested that a State could deny such a request from

a State that retained the death penalty, which would show that there was a consequence to

maintaining such a practice. It was also recommended that the ASEAN Intergovernmental

Commission on Human Rights should study the mandatory application of the death penalty.

3. Partnerships and cooperation

28. Several representatives emphasized that various stakeholders, including national

human rights institutions, civil society entities, political organizations, parliamentarians,

religious bodies, academic institutions and networks, and trade unions, had a role to play in

encouraging abolition or moratoriums by advising Governments, monitoring situations and

raising awareness. Some representatives requested that resources be provided to conduct

human rights awareness-raising programmes to educate the public on the value of

abolishing the death penalty. Others said they were committed to fostering discussions on

the effects of the death penalty and supporting initiatives and debates on capital punishment

because listening to those who held different views was crucial. They also said that

cooperation between Governments, parliaments and civil society organizations at the

national and international levels was essential. As an example of such cooperation,

reference was made to Italy, where a dedicated governmental task force worked with

representatives of civil society to strengthen cooperation on the promotion of a universal

moratorium on the use of the death penalty.

15 The declaration is available, in Portuguese only, at www.itamaraty.gov.br/en/press-releases/15623- 11th-summit-of-the-heads-of-state-and-government-of-the-portugues-speaking-countries-brasilia-

declaration-portuguese. Also see A/HRC/27/26, para. 50.

29. Representatives also said that national human rights institutions had a role to play in

encouraging the abolition of the death penalty or the imposition of a moratorium by

advising Governments, by engaging with civil society and the public to foster debate and by

monitoring trials and compliance with international human rights law and standards. The

challenges faced by national human rights institutions in carrying out such work included

resource and capacity gaps and their inability to effectively monitor all criminal judicial

processes.

4. Ratification of international human rights instruments

30. Several representatives stressed the importance of achieving the universal

ratification of the Second Optional Protocol to the International Covenant on Civil and

Political Rights, aiming at the abolition of the death penalty. They called for its universal

ratification, stating that increased ratification was important for advancing the universal

abolition of the death penalty.

31. Some representatives encouraged the Office of the United Nations High

Commissioner for Human Rights (OHCHR) to continue to intensify its efforts towards

universal ratification of the Second Optional Protocol to the International Covenant on

Civil and Political Rights, aiming at the abolition of the death penalty.

32. Representatives also called for the universal ratification of the Convention against

Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the

International Covenant on Civil and Political Rights.

5. Implementation of international human rights standards and safeguards

33. Several representatives emphasized that States that retained the death penalty must

ensure compliance with international fair trial standards and the full protections set out in

international human rights instruments, including the International Covenant on Civil and

Political Rights, the Convention on the Rights of the Child and the safeguards guaranteeing

protection of the rights of those facing the death penalty (Economic and Social Council

resolution 1984/50). In that regard, some representatives of States that retain the death

penalty agreed that rights and safeguards should be respected. Many representatives

expressed concern, however, about the fact that universal safeguards were not always

implemented, in particular with regard to the following: the use of the mandatory death

penalty; the secret application of the death penalty; the failure to prevent miscarriages of

justice; executions following unsafe convictions and unfair trials; public executions and the

use of unregulated substances in lethal injections; the use of the death penalty for crimes

that are not “most serious crimes” under international human rights law, such as drug-

related offences; and the use of the death penalty against persons with disabilities and other

groups at particular risk. Concerns were also raised about the use of capital charges by

military commissions at Guantánamo Bay Naval Base, citing denial of due process rights,

secrecy, inequality of arms and lack of independence.

B. Death penalty as torture or other cruel, inhuman or degrading

treatment or punishment

34. Several representatives referred to the death penalty as a form of torture or other

cruel, inhuman or degrading treatment or punishment and spoke of an emerging customary

norm identifying it as such. They referred to the evolution of State practice according to

which the death penalty was increasingly viewed as a practice incompatible with the

prohibition of torture or other cruel, inhuman or degrading treatment or punishment and

welcomed the emerging consensus on the matter. Refuting suggestions that the death

penalty was not a matter of culture, religion or sovereignty, they said that there could be no

justification for its use or for the use of torture.

35. Some State representatives hoped that the Human Rights Committee and other treaty

bodies would soon state that capital punishment was contrary to the prohibition of torture

and other cruel, inhuman or degrading treatment or punishment, and that the Committee’s

draft general comment No. 36 would take an unambiguously abolitionist stance in relation

to the death penalty. Representatives also drew attention to the work of two former Special

Rapporteurs on torture and other cruel, inhuman or degrading treatment or punishment,

who had referred to the existence of an evolving standard by which the death penalty

constituted torture or other cruel, inhuman or degrading treatment or punishment. Other

representatives recommended that OHCHR study the connection between the death penalty

and the prohibition of torture and other cruel, inhuman or degrading treatment or

punishment.

1. Confessions obtained as a result of torture

36. Several representatives expressed concern about torture being used to obtain

confessions in cases that have led to the imposition of the death penalty. Some individuals

who were tortured had confessed to capital crimes they had not committed. Convictions

based on forced confessions allegedly extracted through torture or under duress in China,

including in Taiwan, Bahrain, Iran (Islamic Republic of), Japan, Saudi Arabia, the Sudan,

the United Arab Emirates and Yemen were mentioned. Some representatives recommended

that national human rights institutions investigate allegations of confessions obtained

through torture and present their findings to national judicial systems.

2. Lack of transparency

37. Several representatives spoke of the international human rights jurisprudence that

held that lack of transparency, particularly in relation to secret executions, and lack of

information concerning the timing of executions, the place of burial or the possibility of

having a loved one’s body returned constituted torture or other cruel, inhuman or degrading

treatment or punishment. When discussing best practices in relation to trials in jurisdictions

where the death penalty was still available, representatives noted that such trials must take

place transparently so as to respect the rights of all people concerned. Secret executions

were widely criticized as being deeply unfair to all concerned. The State secrets policy

applied by China in relation to the number of people on death row and information about

executions was mentioned in that regard.

38. The need for disaggregated, comprehensive, transparent and current data was

emphasized. Such data would help inform the public and policymakers about the reality,

efficacy and negative impacts of the death penalty. Data should be collected on the number

of executions, the number of prisoners on death row and on the time lapse from sentencing

to execution. Data should be disaggregated by offence, gender and sexual orientation,

nationality and immigration status, economic and social status, and the profile of lawyers

assigned to provide counsel. Such data could be used to analyse discrimination and the

effectiveness of legal aid, to enhance transparency in the criminal justice system and to

educate the public, judges and public figures about the death penalty and its consequences.

39. A number of representatives observed that a lack of transparency made it impossible

to hold productive debates on the death penalty and its abolition. The role of political

leaders in changing public opinion was also highlighted, as was the need for leaders to be

well informed and courageous when presenting arguments in favour of abolition of the

death penalty.

3. Poor and marginalized individuals

40. Some representatives observed that arguments in favour of abolition included the

fact that, in practice, the death penalty discriminated between those who could and those

who could not afford a good defence. Others observed that poor and marginalized

individuals were disproportionately affected by the death penalty, as they were those most

often accused of capital crimes and those least likely to benefit from effective and adequate

legal representation. The absence of adequate legal assistance raised questions about the

fairness of trials. The social and economic implications of capital punishment needed to be

discussed.

4. Death row phenomenon

41. Several representatives reflected on the national, regional and international human

rights jurisprudence that held that the death row phenomenon constituted torture or other

cruel, inhuman or degrading treatment or punishment (see A/67/279, paras. 42-51). They

noted, in particular, the undermining of human dignity, the inhuman and degrading

conditions of detention and the unimaginable anxiety and intense psychological suffering of

those on death row. Other delegates said that the foreknowledge of death at the hands of the

State inevitably gives rise to severe mental pain or suffering falling within the ambit of

torture and other cruel, inhuman or degrading treatment or punishment.

42. Concern was also expressed about the lack of respect for the rights of persons facing

the death penalty abroad. In that regard, the panel was informed about a recent report

published by the Inter-American Commission on Human Rights concerning the violation of

the rights of an Argentinian on death row in the United States since 1996. The Commission

had found that the prisoner had been kept in solitary confinement, leading to serious mental

health issues, and that the detention conditions to which he was subjected constituted

torture and were contrary to the American Convention on Human Rights.

5. Methods of execution

43. Some representatives said that, in terms of the physical pain and suffering caused by

the death penalty, there was no evidence that any of the methods in use complied with the

prohibition of torture and other cruel, inhuman or degrading treatment or punishment in

every case. In its resolution 30/5, the Human Rights Council had recalled that all methods

of execution could inflict inordinate pain and suffering and the former Special Rapporteur

on torture and other cruel, inhuman or degrading treatment or punishment had stated that all

forms of execution caused unacceptable levels of pain and suffering.

44. Representatives referred to the European Union ban on the export of drugs used in

lethal injections, 16 noting that the side effect of some drugs caused prolonged and

unnecessary pain. They also recalled the measures taken by pharmaceutical companies in

the United States to prevent the use of their medicines in executions and the court order

directing the United States Food and Drug Administration to prevent the illegal importation

of drugs used in executions. The Committee against Torture too had indicated that the use

of lethal injections should be reviewed owing to their potential to cause severe pain and

suffering (see CAT/C/USA/CO/2, para. 31, and CAT/C/USA/CO/3-5, para. 25). It was

further noted that low-quality lethal injections or other methods leading to physical torture

should be condemned and revised.

6. Impact on families and other individuals concerned

45. Some representatives discussed the impact of the death penalty on family members

and other individuals around them. They reported that the children of parents sentenced to

death suffered trauma and long-term consequences. The human rights of children of parents

sentenced to death or executed in particular needed to be addressed, as did the anguish of

relatives who did not know when their relative would be executed, who could not visit them

or say their farewells. The lack of proper notice regarding the time and date of executions

was particularly worrying. Representatives highlighted the cruelty of denying people a

second chance at life in society and of denying families a second chance of life with their

loved ones. States should render the process of clemency pleas more accessible and

transparent, and they should demonstrate respect for the life, well-being and dignity of all

concerned.

46. In addition, the use of the death penalty negatively affected other individuals.

Attention was drawn to the pain and trauma suffered by executioners, some of whom had

spoken with delegates during the seventy-first session of the General Assembly.

16 Regulation (EU) 2016/2134 of the European Parliament and of the Council of 23 November 2016

amending Council Regulation (EC) No. 1236/2005 concerning trade in certain goods which could be

used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment.

Executioners told delegates how the pain and suffering they had endured while executing

prisoners had led them to become strong advocates against the death penalty. Some

representatives called for those who ordered the death penalty, in particular judges and

prosecutors, to witness executions, in the same way as families and executioners did, so that

they might fully understand the wider impact of the death penalty on families and other

individuals concerned.

V. Conclusions

47. In their concluding remarks, the panellists emphasized that the international

community was moving towards the universal abolition of the death penalty and

recommended that the death penalty be abolished by those States that still continued

to use it. They expressed concern about the reintroduction of the death penalty in

some States and the breaking of moratoriums in others. In that regard, the panellists

recommended that every effort be made to reverse the trend to reintroduce the death

penalty and to maintain moratoriums.

48. The panellists considered that the use of the death penalty posed fundamental

questions about human dignity and the moral authority of human society as a whole.

The emerging international consensus that the death penalty was a form of torture or

other cruel, inhuman or degrading treatment or punishment was highlighted, as was

the fact that a significant number of States already held that to be the case. The

panellists recommended that the Human Rights Council request a comprehensive

legal study on the emergence of a customary norm prohibiting the use of the death

penalty under all circumstances.

49. The panellists acknowledged that abolition required political and public

support, as well as technical assistance. They urged all stakeholders, including States,

to cooperate and share knowledge so as to enable well-informed and inclusive

discussions about the abolition of the death penalty in all States. They suggested

reaching out to young people to explain the arguments in favour of abolishing the

death penalty, with a view to building consensus. The panellists also called for the

collection of disaggregated data on the number of executions, the number of prisoners

on death row and the time lapse from sentencing to execution. In compiling such data,

a wide range of socioeconomic factors should be considered.

50. Pending abolition, the panellists recommended that all prisoners be treated in

accordance with international standards, including the right not to be subject to

torture or other cruel, inhuman or degrading treatment or punishment, that race and

other grounds of discrimination that contribute to unfair trials and unsafe convictions

be addressed and that transparency be ensured in death penalty cases.

51. The panellists underlined the role played by United Nations human rights

mechanisms, in particular the human rights treaty bodies and the Human Rights

Council, including the universal periodic review process and the work of the special

procedure mandate holders, to advance discussions on the universal abolition of the

death penalty.