Introduction
In the current era, with an increased nature and form of criminal incidence all around the globe and, countries like both developed and developing ones are barging on to the aspect of reforming and strengthening the functioning of criminal justice system. One of such ancient methods concerning punishment which is involved within the aspect of criminal justice system is the order and prevalence of Capital punishment. At some point or the other, this specific punishment has been virtually accepted and implemented by almost all countries, which has further led on to the generation of attacks or counter attacks concerning the aspect of sanctity governing this particular form of punishment. This particular essay mainly aims at outlining the current status of Capital punishment at the international level, and thereby indulges onto analysing two major concerns governing the same. The two most important concerns that remains entangled, and are considered to be crucial responsibilities for any country’s criminal justice system involves firstly attaching of utmost value to human life and secondly, introducing the best ways that shall protect the same.
Provisions of Capital punishment under International Law
Currently, as per the recent statistics on a worldwide basis, the implementation and adoption of the capital punishment which can also be termed as death penalty has got reduced, and can be said to approaching towards its abolition. Although with the commencement of 20th century, only three countries that includes Costa Rica, San Marino and Venezuela did took the step of abolishing capital punishment against any sort of crimes that might have been committed in the society[1]. This further showcased that by the end of 1977; almost 14 countries all around the globes had already abolished this particular form of punishment against any crime.
Despite undertaking of such abolishments by many countries, within the purview of international law such as under the International Covenant on Civil and political Rights or that of any other universal international treatise formed, the provisions concerning death penalty is not prohibited.
On the contrary it can further be stated that with the prevalence of such covenants and treatise at the international level, concurrently their also exists other instruments such as the Second Optional Protocol to the International Covenant on Civil and Political Rights, Protocol number 6 to the European Convention for the Protection of Human Rights and Fundamental Freedoms and such others that are been ratified by fewer state parties that holds the objective of abolishing capital punishment.
Under the paradigm of international law, the most crucial and express provision relating to death penalty is Art.6 of the ICCPR[2]. The provision enumerated under the concerned article states about countries that has not yet abolished the imposition of capital punishment are required to act in consonance and conformity to the law in force during the time of commission of the crime, and also not to act in contrary to the provisions of this covenant along with Convention on the Prevention and Punishment of the Crime of Genocide. Although the said provision provides ratified states to exercise capital punishment but the same has also been made subjected to a number of strict limitations. The three most contested and controversial limitations that are been imposed by Art.6 of the ICCPR that can be analysed further involves:
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Exercising the right to a fair trial against arbitrary deprivation
The requirement of fair trial enumerated under Art.6 of the ICCPR before sentencing of death penalty can be extensively divided under two heads that involves firstly granting of protection against getting arbitrarily deprived and that any such penalty should not be imposed on account of breach of the covenant. Further interpretation of the same was been made by the Human Rights Committee while sentencing in the case Taha Yassin Ramadan, courts are required to act in consistency with all the mentioned provisions under Art.6 that relates to fair trial before imposition of capital punishments. These requirements were also elucidated in the case of Reid v Jamaica Communication No. 250/1987 [1994] in which prime focus was given to hearing and conduct of trials by independent and impartial tribunals[3]. Keeping in view the current scenario whereby most of the contracting parties are on the verge of rejecting the punishment of death penalty from within their respective justice criminal system as the same is losing its legitimacy, the European Court of Human Rights in the case of Ocalan v Turkey has expressly mentioned that imposing of capital punishment based on an unfair trial shall be deemed to be a form of inhuman treatment[4].
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Limited to only crimes of serious nature
One of the established principles that is introduced under Art.6 of the ICCPR is the fact that death penalty can only be opted under circumstances while dealing with most serious crimes, but the same has also not expressly mentioned or defined the term serious crimes. In order to exclude situations of confusions and contradictory rules, the UN General Assembly gave acceptance to the special Rapportuer made on Extrajudicial, Summary or Arbitrary Executions that explicitly states about the crimes against which death penalty can’t be imposed[5]. But the said mentioning was made subjected to high level of arguments amongst ratified nations thereby leading to non universal acceptance. For the purpose of rendering ICCPR at least a persuasive interpretation, the Human Rights Committee has further stated the kind of offences that shall be considered to be incompatible with the concerned covenant which are taken into consideration in parallel with the UN special Rapprteur’s accepted by the GA. Therefore it is clear that the ambit of offences that are to be treated with death penalty is very restrictive and is considered to be an exceptional measure.
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Abridgment of other human rights given under ICCPR with execution of death penalty
In today’s developed societal structure, that pledges towards removal of any sort of criminal activities does upholds the ground of considering death penalty as method that mainly constitutes cruelty, inhuman or degrading treatment.
Absolving an individual of these human rights is highly witnessed in the process of sentencing and executing a death penalty which is generally referred to as “death row” phenomenon in U.S. This has been highly condemned and considered to be inhuman treatment by both The European Court of Human Rights and that of the Judicial Committee of the Privy Council in the case of Soering v United Kingdom and Germany [1989] and Pratt et al v Attorney-General for Jamaica et al [1993] respectively. With the passage of time such comparison between death penalty and that any kind of degrading treatment of the concerned individual that does constitutes torture does questions the logic underneath provisions of international law[6]. This is because within the parlance of international law threats relating to killing of an imprisoned individual is considered to be illegal while atrocities behind actual execution of death sentence are deemed to be lawful. From here it has also been foreseen and predicted by many commentators that methods implemented in regard to execution of death sentence shall lead to transforming the penalty into an absolute breach of the basic human rights that is right to life.
International aspect towards abolition of Capital punishment
In alignment to the limitations that are mentioned above under Art.6 of the ICCPR, it has been alleged on many occasions by the HRC that the concerned international instrument does favours towards total abolition of the punishment. But the same has not been mandatorily mentioned or stated within the Article under the international law[7]. Even though there lies no express mentioning of the same, there has been an upsurge in the extent of abolishing this particular punishment globally, soon after promulgation of the United Nations Declaration on Human rights. Based on the same the recent status suggests that approximately 133 countries have already abolished death penalty in law or in practice[8]. As has been stated by William Schabas that the trend towards abolition of the capital punishment has been gaining huge momentum on a constant basis, which keeping in view the fundamental rights and values that are generally guaranteed to an individual, the prevalence of such punishment shall not be long enough[9].
At the international arena, the issue relating to death penalty or sentencing has been transferred within the ambit of human rights as the same requires to be exercised with the limit of the same, apart from its consideration with a nation’s criminal justice system. This can be further corroborated from the decision by HRC in the case of Roger Judge v Canada, Communication No. 829/1998, which mentioned that states rejecting death penalties are entrusted with the obligation of controlling the rise of any such situation that requires application of the same[10]. With such shifts or decisions that are been rendered by the Committee, further led on to bifurcated opinions that favoured abolition differentiated from those in favour of retaining the same.
Arguments in favour of abolition
The reasons that can be cited on behalf of states in regard to abolishment of death penalty have been varied. While the most important influence on any such decision is primitively the human discourse that keeps on changing rapidly. Adoption of the abolition move of death penalty in the year 1995 by Spain was stated to have been taken on the ground that within the criminal justice system of any civilized nation or society implementation of the same is not necessary[11]. Howsoever in regard to the decision of SA in construing capital punishment as unconstitutional it was being further backed up by J. Chaskalson that the core fundamental rights of an individual connoting right to life and dignity should be maintained and upheld by the States under all circumstances. Majority of the member states within the EU have already abolished application of death penalty with the sole objective of gaining membership[12]. Apart from it, other major proportions of states that are absolutionist in nature are of the view that capital punishment ensues subsequently breach of other human rights.
Arguments in favour of retention
Here it can be stated that, the countries which are in favour of retaining capital punishment within their domestic criminal justice system are actually the ones who provides greater amount of resistance than any other cause. Recent statistics of 2019 demonstrates that almost 91% of the execution of death penalty has been carried out five countries specifically, that involves China, Iran, Iraq, Pakistan, Sudan and U.S. The major grounds of arguments that are been put forwarded by the retentionist states involves firstly, that the aspect of death sentence falls within the category of national sovereignty and not within the ambit of human rights law. Secondly, the same has the propensity of putting a deterrent effect on commission of crime thereby controlling the same, and last thirdly, claims made on the basis of religious requirements. Howsoever many of recently conducted studies and researches have rebutted the authenticity and applicability of the mentioned reasons in favour of retaining this punishment thereby hunching on its credibility.
Conclusion
The views or perspectives that are showcased by international organisations in the field of human rights also showcases their positivity towards abolition the same. Going through the above discussion it can be very well construed that majority of the nations and international organisations are pledging for removal of Capital punishment from the boundaries of criminal justice system as that generates implications of regressive nature against the society. Within the purview of international law as well this current trend of disallowing death penalty has gained extensive strength and support which shall most likely lead towards express inclusion of provision for abolishment. Large section of the elites and research scholars share this common belief that imposition of death penalty is an implied method of inflicting cruel or inhuman treatments upon offenders that ultimately forges the main objective behind the aspect of punishment.
Despite of the range of strong arguments that might have been attached by retentionist countries, disallowing the same on proven grounds that might be affixed by the States who had opted for trial session of rejecting the same, demonstrating that the same does not contributes in implying a deterrent impact upon the rates of crime commission. In comparison to other states on a global basis it can be stated that within Europe the progress towards absolute abolishment of the death penalty is huge which is in turn constructing the thought of no legitimate interpretation of capital punishments within the penal systems of civilized or advanced societies as a whole
REFERENCES
“Why Amnesty opposes the death penalty without exception”. Amnesty.org, 2020. Online. Internet. 7 Jul. 2020. . Available: https://www.amnesty.org/en/what-we-do/death-penalty/.
Bessler, John D. “The Abolitionist Movement Comes of Age: From Capital Punishment as Lawful Sanction to a Peremptory, International Law Norm Barring Executions.” Mont. L. Rev. 79 (2018): 7.
Justice, Criminal, and Criminal System. “Capital Punishment in Criminal Justice – IResearchNet”. Criminal Justice, 2020. Online. Internet. 7 Jul. 2020. . Available: http://criminal-justice.iresearchnet.com/system/capital-punishment/.
Steiker, Carol S., and Jordan M. Steiker. “Capital punishment.” Reforming criminal justice: A report of the Academy for Justice on bridging the gap between scholarship and reform 4 (2017): 147-168.
The Death Penalty under International Law: A Background Paper to the IBAHRI Resolution on the Abolition of the Death Penalt. Ebook, 2020. Online. Internet. 7 Jul. 2020. . Available: http://file:///C:/Users/user/Downloads/Deathpenalty_Paper.pdf.
[1] Criminal Justice and Criminal System, “Capital Punishment in Criminal Justice – IResearchNet”, Criminal Justice, 2020, online, Internet, 7 Jul. 2020. , Available: http://criminal-justice.iresearchnet.com/system/capital-punishment/.
[2] Criminal Justice and Criminal System, “Capital Punishment in Criminal Justice – IResearchNet”, Criminal Justice, 2020, online, Internet, 7 Jul. 2020. , Available: http://criminal-justice.iresearchnet.com/system/capital-punishment/.
[3] The Death Penalty under International Law: A Background Paper to the IBAHRI Resolution on the Abolition of the Death Penalt, ebook, 2020, online, Internet, 7 Jul. 2020. , Available: http://file:///C:/Users/user/Downloads/Deathpenalty_Paper.pdf.
[4] The Death Penalty under International Law: A Background Paper to the IBAHRI Resolution on the Abolition of the Death Penalt, ebook, 2020, online, Internet, 7 Jul. 2020. , Available: http://file:///C:/Users/user/Downloads/Deathpenalty_Paper.pdf.
[5] “Why Amnesty opposes the death penalty without exception”, Amnesty.org, 2020, online, Internet, 7 Jul. 2020. , Available: https://www.amnesty.org/en/what-we-do/death-penalty/.
[6] Bessler, John D. “The Abolitionist Movement Comes of Age: From Capital Punishment as Lawful Sanction to a Peremptory, International Law Norm Barring Executions.” Mont. L. Rev. 79 (2018): 7.
[7] Bessler, John D. “The Abolitionist Movement Comes of Age: From Capital Punishment as Lawful Sanction to a Peremptory, International Law Norm Barring Executions.” Mont. L. Rev. 79 (2018): 7.
[8] Steiker, Carol S., and Jordan M. Steiker. “Capital punishment.” Reforming criminal justice: A report of the Academy for Justice on bridging the gap between scholarship and reform 4 (2017): 147-168.
[9] Steiker, Carol S., and Jordan M. Steiker. “Capital punishment.” Reforming criminal justice: A report of the Academy for Justice on bridging the gap between scholarship and reform 4 (2017): 147-168.
[10] The Death Penalty under International Law: A Background Paper to the IBAHRI Resolution on the Abolition of the Death Penalt, ebook, 2020, online, Internet, 7 Jul. 2020. , Available: http://file:///C:/Users/user/Downloads/Deathpenalty_Paper.pdf.
[11] The Death Penalty under International Law: A Background Paper to the IBAHRI Resolution on the Abolition of the Death Penalt, ebook, 2020, online, Internet, 7 Jul. 2020. , Available: http://file:///C:/Users/user/Downloads/Deathpenalty_Paper.pdf.
[12] The Death Penalty under International Law: A Background Paper to the IBAHRI Resolution on the Abolition of the Death Penalt, ebook, 2020, online, Internet, 7 Jul. 2020. , Available: http://file:///C:/Users/user/Downloads/Deathpenalty_Paper.pdf.
This article is written by Urmi Roy, She has Completed B.A.LLB (Hons) from S.K. Acharya Institute of Law. Currently working as a Research analyst at Elite Research organisation.
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