1.1.3 Threat or imposition of the death penalty [ICCPR art 6] Condensed: States which have not abolished the death penalty are obliged to limit its use and to abolish it for other than the most serious crimes. The death penalty may thus only be imposed for crimes that result in the intentional loss of life and may not be mandatory. The execution of the death penalty after an unfair trial constitutes an arbitrary execution. The death penalty may not be imposed for offences committed by children . The death penalty may not be imposed on pregnant women or mothers with dependant infants or on a person suffering from any mental or intellectual disabilities. The death penalty may not be imposed and no one may be executed in states which have ratified the Second Optional Protocol to the ICCPR or similar regional treaties. A state which has abolished the death penalty may not extradite a person to a state where that person may be sentenced to death unless guarantees have been secured from the receiving state that the death penalty will not be sought. Comprehensive: Imposition of the death penaltyis not prohibited under international law, though abolition is strongly encouraged by the UN.[1] In states which retain the death penalty, it may only be imposed for the most serious crimes in accordance with the law in force at the time of the commission of the crime.[2] The ‘most serious crimes’ may only include ‘intentional crimes with lethal or other extremely grave consequences’.[3] According to the HRC, ‘"most serious crimes" must be read restrictively to mean that the death penalty should be a quite exceptional measure.’[4] Offences under national law not considered the ‘most serious’ include abduction not resulting in death, abetting suicide,adultery, apostasy,corruption, drug-related offences,economic crimes,the expression of conscience,financial crimes, embezzlement by officials,evasion of military service,homosexual acts,illicit sex, sexual relations between consenting adults,theft or robbery by force,religious practice, and political offences.[5] In essence the ‘most serious crimes’ may only include those that ‘result in loss of life’.[6] The death penalty may not be mandatory for any crime.[7] All fair trial guarantees must be respected, including the right to legal assistance and appeal.[8] When a state cannot guarantee fair trial it should impose a moratorium on the death penalty.[9] An execution may only take place pursuant to a final judgment by a competent court.[10] A state may not execute a person sentenced to death who has been granted provisional measures by an international human rights monitoring body or court until a final decision has been taken on the merits of the case.[11] A person sentenced to death shall have the right to seek pardon or commutation of the sentence.[12] (See *right to seek pardon or commutation of sentence*). States should:[13] (a) Not impose the death penalty for crimes committed by persons below 18 years of age;[14] (b) Exclude pregnant women[15] and mothers with dependent infants from capital punishment; (c) Not impose the death penalty on a person suffering from any mental or intellectual disabilities or to execute any such person.[16] The execution of the death penalty in violation of international safeguards constitutes an arbitrary execution.[17] (See *extrajudicial, arbitrary or summary execution or other unlawful killing*). Where capital punishment is executed, it shall be carried out so as to inflict the minimum possible suffering.[18] In Ng v Canada the HRC held that execution by gas asphyxiation ‘would not meet the test of "least possible physical and mental suffering"’.[19] The death penalty may not be imposed and no one may be executed in states which have ratified the Second Optional Protocol to the ICCPR or similar regional treaties.[20] States ratifying the Second Optional Protocol may make a reservation reserving the right to impose the death penalty ‘for a most serious crime of a military nature committed during wartime’.[21] To reintroduce the death penalty after it has been abolished or to extend the scope of application may constitute a violation.[22] The HRC expressed its concern when the Philippines reintroduced the death penalty after it had been abolished.[23] Threat of the death penalty arises when a state extradites a person to a state where that person may be sentenced to death unless a guarantee has been secured from the receiving state that the death penalty will not be sought. Extradition without such a guarantee constitutes a violation of the right to life with regard to states which have abolished the death penalty.[24]
[1] The UN General Assembly in December 2007, by 104 votes for, 54 against and 29 abstentions, adopted resolution A/RES/62/149 in which it ‘1. Expresses its deep concern about the continued application of the death penalty; 2. Calls upon all States that still maintain the death penalty: (a) To respect international standards that provide safeguards guaranteeing protection of the rights of those facing the death penalty, in particular the minimum standards, as set out in the annex to Economic and Social Council resolution 1984/50 of 25 May 1984; (b) To provide the Secretary-General with information relating to the use of capital punishment and the observance of the safeguards guaranteeing protection of the rights of those facing the death penalty; (c) To progressively restrict the use of the death penalty and reduce the number of offences for which it may be imposed; (d) To establish a moratorium on executions with a view to abolishing the death penalty; 3. Calls upon States which have abolished the death penalty not to reintroduce it’. On the current status of the death penalty in the world, including the application of the safeguards discussed below, see Capital punishment and implementation of the safeguards guaranteeing protection of the rights of those facing the death penalty, report of the Secretary General, E/2010/10. [2]ICCPR art 6(2). **[3]** Safeguards guaranteeing protection of the rights of those facing the death penalty (1984) para 1.[4] General Comment 6 para 7. [5]Special Rapporteur on extrajudicial, summary or arbitrary executions, A/HRC/4/20 (2007), para 51 with reference to resolutions of the UN Commission on Human Rights and the Human Rights Committee. [6]HRC Concluding Observations: Iran, CCPR/C/79/Add.25 (1993), para 8. [7] Special Rapporteur A/HRC/4/20 (2007) paras 54-62; Thompson v Saint Vincent and the Grenadines, communication 806/1998 (HRC 2000) para 8.2; Hilaire and ors v Trinidad and Tobago (IACtHR 2002) para 103; Weerawansa v Sri Lanka communication 1406/2005 (HRC 2009) para 7.2. [8] Safeguards guaranteeing protection of the rights of those facing the death penalty paras 5 & 6. [9]Special Rapporteur on extrajudicial, summary or arbitrary executions, A/HRC/14/24 (2010), para 51. [10]ICCPR art 6(2). [11] Piandiong v Philippines communication 869/1999 (2000) para 8. [12]ICCPR art 6(4). [13] Economic and Social Council resolution 1989/64 para 1(d). See also UN Commission on Human Rights resolution 2005/59; Safeguards guaranteeing protection of the rights of those facing the death penalty para 3; RS v Trinidad and Tobago communication 684/1996 (HRC 2002) para 7.2. [14]ICCPR art 6(5); CRC art 37(a). [15] According to ICCPR art 6(5) the sentence of death ‘shall not be carried out on pregnant women’. [16]UN Commission on Human Rights resolution 2005/59 para 7(b). See also Safeguards guaranteeing protection of the rights of those facing the death penalty para 3. [17] Special Rapporteur A/HRC/14/24 (2010) para 50. [18] Safeguards guaranteeing protection of the rights of those facing the death penalty (1984) para 9. [19] Ng v Canada communication 469/1991 (HRC 1994) para 16.4. [20]Article 1 of the Second Optional Protocol of the ICCPR provides: ‘1. No one within the jurisdiction of a state party to the present protocol shall be executed. 2. Each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction.’ See also Protocol 6 to the European Convention concerning the abolition of the death penalty; Protocol 13 to the European concerning the abolition of the death penalty in all circumstances; Protocol to the American Convention to abolish the death penalty. [21]See also art 2 of Protocol 6; art 2 of the American Convention to abolish the death penalty. [22] Report of the Special Rapporteur on extra-judicial, summary or arbitrary executions, E/CN.4/1998/68/Add.3 (1998) para 145. [23] HRC Concluding Observations: Philippines, CCPR/CO/79/PHL (HRC, 2003) para 10. [24] Judge v Canada communication 829/1998 (HRC 2003).
Condensed:
States which have not abolished the death penalty are obliged to limit its use and to abolish it for other than the most serious crimes. The death penalty may thus only be imposed for crimes that result in the intentional loss of life and may not be mandatory. The execution of the death penalty after an unfair trial constitutes an arbitrary execution. The death penalty may not be imposed for offences committed by children . The death penalty may not be imposed on pregnant women or mothers with dependant infants or on a person suffering from any mental or intellectual disabilities.
The death penalty may not be imposed and no one may be executed in states which have ratified the Second Optional Protocol to the ICCPR or similar regional treaties. A state which has abolished the death penalty may not extradite a person to a state where that person may be sentenced to death unless guarantees have been secured from the receiving state that the death penalty will not be sought.
Comprehensive:
Imposition of the death penaltyis not prohibited under international law, though abolition is strongly encouraged by the UN.[1] In states which retain the death penalty, it may only be imposed for the most serious crimes in accordance with the law in force at the time of the commission of the crime.[2] The ‘most serious crimes’ may only include ‘intentional crimes with lethal or other extremely grave consequences’.[3] According to the HRC, ‘"most serious crimes" must be read restrictively to mean that the death penalty should be a quite exceptional measure.’[4] Offences under national law not considered the ‘most serious’ include abduction not resulting in death, abetting suicide,adultery, apostasy,corruption, drug-related offences,economic crimes,the expression of conscience,financial crimes, embezzlement by officials,evasion of military service,homosexual acts,illicit sex, sexual relations between consenting adults,theft or robbery by force,religious practice, and political offences.[5] In essence the ‘most serious crimes’ may only include those that ‘result in loss of life’. [6] The death penalty may not be mandatory for any crime.[7]
All fair trial guarantees must be respected, including the right to legal assistance and appeal.[8] When a state cannot guarantee fair trial it should impose a moratorium on the death penalty.[9] An execution may only take place pursuant to a final judgment by a competent court.[10] A state may not execute a person sentenced to death who has been granted provisional measures by an international human rights monitoring body or court until a final decision has been taken on the merits of the case.[11] A person sentenced to death shall have the right to seek pardon or commutation of the sentence.[12] (See *right to seek pardon or commutation of sentence*).
States should:[13]
(a) Not impose the death penalty for crimes committed by persons below 18 years of age;[14]
(b) Exclude pregnant women[15] and mothers with dependent infants from capital punishment;
(c) Not impose the death penalty on a person suffering from any mental or intellectual disabilities or to execute any such person.[16]
The execution of the death penalty in violation of international safeguards constitutes an arbitrary execution.[17] (See *extrajudicial, arbitrary or summary execution or other unlawful killing*).
Where capital punishment is executed, it shall be carried out so as to inflict the minimum possible suffering.[18] In Ng v Canada the HRC held that execution by gas asphyxiation ‘would not meet the test of "least possible physical and mental suffering"’.[19]
The death penalty may not be imposed and no one may be executed in states which have ratified the Second Optional Protocol to the ICCPR or similar regional treaties.[20] States ratifying the Second Optional Protocol may make a reservation reserving the right to impose the death penalty ‘for a most serious crime of a military nature committed during wartime’.[21] To reintroduce the death penalty after it has been abolished or to extend the scope of application may constitute a violation.[22] The HRC expressed its concern when the Philippines reintroduced the death penalty after it had been abolished.[23]
Threat of the death penalty arises when a state extradites a person to a state where that person may be sentenced to death unless a guarantee has been secured from the receiving state that the death penalty will not be sought. Extradition without such a guarantee constitutes a violation of the right to life with regard to states which have abolished the death penalty.[24]
[1] The UN General Assembly in December 2007, by 104 votes for, 54 against and 29 abstentions, adopted resolution A/RES/62/149 in which it ‘1. Expresses its deep concern about the continued application of the death penalty; 2. Calls upon all States that still maintain the death penalty: (a) To respect international standards that provide safeguards guaranteeing protection of the rights of those facing the death penalty, in particular the minimum standards, as set out in the annex to Economic and Social Council resolution 1984/50 of 25 May 1984; (b) To provide the Secretary-General with information relating to the use of capital punishment and the observance of the safeguards guaranteeing protection of the rights of those facing the death penalty; (c) To progressively restrict the use of the death penalty and reduce the number of offences for which it may be imposed; (d) To establish a moratorium on executions with a view to abolishing the death penalty; 3. Calls upon States which have abolished the death penalty not to reintroduce it’. On the current status of the death penalty in the world, including the application of the safeguards discussed below, see Capital punishment and implementation of the safeguards guaranteeing protection of the rights of those facing the death penalty, report of the Secretary General, E/2010/10.
[2]ICCPR art 6(2).
**[3]** Safeguards guaranteeing protection of the rights of those facing the death penalty (1984) para 1.[4] General Comment 6 para 7.
[5]Special Rapporteur on extrajudicial, summary or arbitrary executions, A/HRC/4/20 (2007), para 51 with reference to resolutions of the UN Commission on Human Rights and the Human Rights Committee.
[6]HRC Concluding Observations: Iran, CCPR/C/79/Add.25 (1993), para 8.
[7] Special Rapporteur A/HRC/4/20 (2007) paras 54-62; Thompson v Saint Vincent and the Grenadines, communication 806/1998 (HRC 2000) para 8.2; Hilaire and ors v Trinidad and Tobago (IACtHR 2002) para 103; Weerawansa v Sri Lanka communication 1406/2005 (HRC 2009) para 7.2.
[8] Safeguards guaranteeing protection of the rights of those facing the death penalty paras 5 & 6.
[9]Special Rapporteur on extrajudicial, summary or arbitrary executions, A/HRC/14/24 (2010), para 51.
[10]ICCPR art 6(2).
[11] Piandiong v Philippines communication 869/1999 (2000) para 8.
[12]ICCPR art 6(4).
[13] Economic and Social Council resolution 1989/64 para 1(d). See also UN Commission on Human Rights resolution 2005/59; Safeguards guaranteeing protection of the rights of those facing the death penalty para 3; RS v Trinidad and Tobago communication 684/1996 (HRC 2002) para 7.2.
[14]ICCPR art 6(5); CRC art 37(a).
[15] According to ICCPR art 6(5) the sentence of death ‘shall not be carried out on pregnant women’.
[16]UN Commission on Human Rights resolution 2005/59 para 7(b). See also Safeguards guaranteeing protection of the rights of those facing the death penalty para 3.
[17] Special Rapporteur A/HRC/14/24 (2010) para 50.
[18] Safeguards guaranteeing protection of the rights of those facing the death penalty (1984) para 9.
[19] Ng v Canada communication 469/1991 (HRC 1994) para 16.4.
[20]Article 1 of the Second Optional Protocol of the ICCPR provides: ‘1. No one within the jurisdiction of a state party to the present protocol shall be executed. 2. Each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction.’ See also Protocol 6 to the European Convention concerning the abolition of the death penalty; Protocol 13 to the European concerning the abolition of the death penalty in all circumstances; Protocol to the American Convention to abolish the death penalty.
[21]See also art 2 of Protocol 6; art 2 of the American Convention to abolish the death penalty.
[22] Report of the Special Rapporteur on extra-judicial, summary or arbitrary executions, E/CN.4/1998/68/Add.3 (1998) para 145.
[23] HRC Concluding Observations: Philippines, CCPR/CO/79/PHL (HRC, 2003) para 10.
[24] Judge v Canada communication 829/1998 (HRC 2003).