WORLD CONGRESS ON HUMAN RIGHTS

Transcription

1 - 6 MAY 1991 Item l(d),^^ /^»\ ^\^, NEW DELHI WORLD CONGRESS ON HUMAN RIGHTS DECEMBER 10-15, 1990 Civil and Political Rights: Protection of Personal Integrity ABOLITION OF THE DEATH PENALTY (Paper presented by Amnesty International (International Secretariat), London, UK) HURITER School of International Studies Jawaharlal Nehru University New Delhi Q

2 Civil and Political Rights: Protection of Personal Integrity" " ABOLITION OF THE DEATH PENALTY* e- Countries today are abolishing the death penalty ster than ever before in history. By renouncing its power to take a prisoner 's life as a legally sanctioned punishment, a state affirms respect for human life and dignity. Since the beginning of this year alone, seven countries have abolished the death penalty for all crimes. One country, Nepal, has abolished it for common crimes. Namibia was the first country this year to abolish the death penalty. On 9 February Namibia's Constituent Assembly approved a new constitution which stated that "the right to life shall be respected and protected. No law may prescribe death as a competent sentence. No Court or Tribunal shall have the power to impose a sentence of death upon any person. No executions shall take place in Namibia.'' The constitution came into force on 21 March 1990, when Namibia became independent from South Africa. The Czechoslovakian parliament adopted an amendment to the penal code in May which abolished the death penalty for all offences. This law took effect in July. Referring to the abolition, a government representat i ve told the UN Economic and Social Council in New York:' 'Czechoslovakia wants to join those countries that rate the right to life among the most fundamental human rights..." The Irish parliament voted in June to abolish the death penalty and the abolitionist bill was signed into law the next month by the President. During the debate in the lower house of parliament Mr Ranagan, a member of the Fine Gael Party, referred to the right to life and the prohibition of torture and cruel, inhuman or degrading punishment in the Universal Declaration of Human Rights. He said that it was an honour for Ireland to join the list of abolitionist countries. Also in July, a spokesperson of the Nepalese Law and Justice Ministry announced that the death penalty had been abolished for murder. Organizations in the country had called for abolition. Nepal now retains the death penalty only for exceptional crimes - espionage and violent attacks on the royal family. Andorra's first penal code came into force in September and it makes no provision for the death penalty. There has only been one execution in Andorra this century, in *Paper presented by Amnesty International (International Secretariat ), London, UK.

3 The death penalty was abolished in SaoTome and Principe in September and in Mozambique in November. Both countries abolished the death penalty when they revised their constitutions to introduce multi-party political systems. No-one was ever sentenced to death in Sao Tome and Principe. In the close-knit community few reportedly supported capital punishment-'' you would have to shoot your brother or your friend ", one senior official said, In Mozambique, senior officials told Amnesty International that death was considered too heavy a punishment for even the gravest crimes and, in any case, it had not proved to be an effective deterrent. In Hungary the Constitutional Court in October declared the death penalty unconstitutonal, describing it as cruel, arbitrary and a violation of human rights. The penal code has now been amended accordingly making no reference to the death penalty. As we approach the end of 1990, nearly half the countries of the world have abolished the death penalty in law or practice. Forty-four countries are abolitionist for all crimes, 17 abolitionist for ordinary crimes only, 25 abolitionist de facto and 92 arc retentionis t Alongside these positive developments, executions sadly continue elsewhere. Last year Amnesty International recorded that 2,229 priso ners were executed in 34 countries and 2,826 people were sentenced to death in 62 countries. As in earlier years, a handful of countries accounted for the vast majority of executions. Complete statistics are not available because many executions are still carried out in secre t The true totals are certainly higher. Safeguards to be observed in death penalty cases, adopted by the United Nations Economic and Social Council in 1984, have been violated e r gularly. In a number of countries special courts are empowered to pass death sentences, often with no right of appeal to a higher tribunal. Legal assistance for prisoners facing capital charges is often inadequate. Prisoners under 18 years of age at the time of the offence have been executed in several countries. And despite the safeguard specifying that the death penalty should be limited to' 'the most serious crimes with lethal or other extremely grave consequences", people executed in recent years include those accused of a range of offences which incurred no loss of life. In some cases those executed were involved only in non-violent political activity. Respect for these minimum safeguards would reduce considerably the number of executions now carried out. The safeguards do not, however, resolve the problems inherent in capital punishment: human uncertainty and arbitrary judgment are factors which may affect all judicial decisions, yet execution as a punishment is irrevocable; all criminal justice systems are vulnerable to discrimination, and the death penalty is used disproportionately against the poor and the disadvantaged.

4 - whatever method used, the execution of a human being involves acute physical and mental suffering. The Universal Declaration of Human Rights is a pledge among nations to promote fundamental rights as the foundation of freedom, justice and peace. The rights it proclaims are inherent in every human being. They are not privileges that may be granted by governments for good behaviour and they may not be withdrawn for bad behaviour. Fundamental human rights limit what a state may do to a man, woman or child. No matter what reason a government gives for executing prisoners and what method of execution is used, the death penalty cannot be separated from the issue of human rights. The movement for abolition cannot be separated from the movement for human rights. The Universal Declaration of Human Rights recognizes each person's right to life and categorically states further that ' 'No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." In Amnesty International 's view the death penalty violates these rights. The death penalty is not an act of self-defence against an immediate threat to life. It is the premediated killing of a prisoner who could be dealt with equally well by less harsh means. There can never be a justification for torture or for cruel, inhuman or degrading treatment or punishment. The cruelty of the death penalty is evident. Like torture, an execution constitutes an extreme physical and mental assault on a person already rendered helpless by government authorities. The physical pain caused by the action of killing of a human being cannot be quantified. Nor can the psychological suffering caused by fore-knowledge of death at the hands of the state. Whether a death sentence is carried out six minutes after a summary trial, six weeks after a mass trial or 16 years after lengthy legal proceedings, the person executed is subjected to a uniquely cruel, inhuman and degrading punishment Justice Bhagwati, former Chief Justice of the Supreme Court of India, speaking at the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders in Havana in September said that "the penalty is barbaric and inhuman in its effect, mental and physical, upon the condemned prisoner and is positively cruel. The condemned prisoner suffers excruciating mental anguish and severe psychological strain during the long wait from the imposition of the sentence until the actual infliction of death. It involves lingering death. The physical pain and suffering which the actual execution of the sentence of death involves is also no less t?ruel and inhuman. The death penalty is cruel and inhuman, disproportionate and excessive." The death penalty may also encompass other human rights violations. When a state jails people solely because of their beliefs, it violates the fight to freedom of belief and expression. The death penalty is sometimes used to silence forever political opponents or to eliminate ''troublesome'' individuals. Whenever, and wherever used, it finally and unalterably severs aperson's right to hold opinions and to speak freely because it takes that person's life.

5 When a state convicts prisoners without affording them a fair trial, it denies the right to due process and equally before the law. The e irr vocable punishment of death removes not only the victim's right to seek legal redress for wrongful conviction, but also the judicial system's capacity to correct its errors. Like killings which take place outside the law, the death penalty denies the value of human life. By violating the right to life, it removes the foundation for the realization of all rights enshrined in the Universal Declarat i on of Human Rights. No government publicly admits to torture or other grave violations of human rights, although privately some officials may seek to justify such abuses in the name of the "greater good". But governments that keep the death penalty, for the most part openly admit to using if they do not so much deny its cruelty as attempt to justify its use; and the arguments they use publicly to justify the death penalty resemble those that are used in private to justify other secret abuses. The most common justificai t on offered is that, terrible as it is, the death penalty is necessary; it may be necessary only temporarily, but it is argued, only the death penalty can meet a particular need of society. And whatever that need may be, it is claimed to be so great that it justifies the cruel punishment of death. The particular needs claimed to be served by the death penalty differ from time to time and from society to society. In some countries the penalty is considered legitimate as a means of preuenting or punishing the crime of murder. Elsewhere it may be deemed indispenable to stop drug-trafficking, acts of political terror, economic corruption or adultery. In yet other countries, it is used to eliminate those seen as posing a political threat to the authorities. Once one state uses the death penalty for any reason, it becomes easier for other states to use it with an appearance of legitimacy for whatever reasons they may choose. If the death penalty can be justified for one offence, justifications that accord with the prevailing views of a society or its rulers will be found for it to be used for other offences. Whatever purpose is cited, the idea that a government can justify a punishment as cruel as death conflicts with the very concept of human rights. The significance of human rights is precisely that some means may never be used to protect society because their use violates the very values which make society worth protecting. When this essential distinction between appropriate and inappropriate means is set aside in the name of some'' great good'', all rights are vulnerable and all individuals are threatened. The death penalty, as a violation of fundamental human rights, would be wrong even if it could be shown that it uniquely met a vital social need. What makes the use of the penalty even more indefensible and the case for its abolition even more compelling is that it has never been shown to have any special power to meet any genuine social need. Countless men and women have been executed for the stated purpose of preventing clime, especially the crime of murder. Yet, study after study in diverse countries has failed to find

6 convincing evidence that the death penalty has any unique capacity to deter others from committ ng particular crimes. The most recent survey of research findings on the relation between the death penalty and homicide rates, conducted for the UN in 1988, has concluded that "This research has failed to provide scientific proof that executions have a greater deterrent effect than life imprisonmen t Such proof is unlikely to be forthcoming. The evidence as a whole still gives no positive support to the deterrent hypothesis."' Undeniably the death penalty, by permanently "incapacitating " a prisoner, prevents that person from repeating the crime. But there is no way to be sure that the prisoner would indeed have repeated the crime if allowed to live, nor is there any need to violate the prisoner 's right to life for the purpose ofincapacitation ; dangerous offenders can be kept safely away from the public without resorting to execution, as shown by the experience of many abolitionist countries. Nor is there evidence that the threat of the death penalty will prevent politically motivated crimes or acts of terror. If anything, the possibility of political martyrdom through execution may encourage people to commit such crimes. Every society seeks protection from crime. Far from being a solution, the death penalty gives the erroneous impression that "firm measures" are being taken against crime. It diverts attention from the more complex measures which are really needed. When the arguments of deterrence and incapacitation fall away, one is left with a more deepseated justification for the death penalty; that of just retribution for the particular crime committed. According to this argument, certain people deserve to be killed as repayment for the evil done: there are crimes so offensive that killing the offender is the only just response. It is an emotionally powerful argument. It is also one which, if valid, would invalidate the basis for human rights. If a person who commits a terrible act can ' 'deserve" the cruelty of death, why cannot others, for similar reasons, "deserve" to be tortured or imprisoned without trial or simply shot on sight? Central to fundamental human rights is that they are inalienable. They may not be taken away even if a person has committed the most atrocious of crimes. Human rights apply to the worst of us as well as to the best of us, which is why they protect us all. One year ago the UN General Assembly adopted the Second Optional Protocol to the International Covenant on Civil and Political Rights. This is the world's first pact of universal scope aimed at ending the death penalty. Any state which is a party to the International Covenant on Civil and Political Rights may become a party to the protocol and will then be bound not to carry out executions. The protocol will come into force when ten states have ratified it. To date four countries have ratified the protocol and fifteen have signed it, indicating their intention to ratify it at a later date. 'United Nations, The question of the death penalty and the new contributions of the criminal sciences to the matter,a report to the United Nations Committee on Crime Prevention and Control, United Nations Social Affairs Division, Crime Prevention and Criminal Justice Branch, Vienna, 1988.

7 Initiatives on the death penalty have been taken by a number of other international and intergovernmental organizations. An example is the ACP-EEC Joint Parliamentary Assembly, a forum of 68 members of the European Parliament and 68 representatives of the 86 African, Caribbean and Pacific states which are pary to the Lome Convention. This assembly adopted a resolution in September which calls for a three-year moratorium on the application of the death penalty in ACP-EEC countries and for the abolition of the death penalty in those countries which stil retain it. As an organization working for human rights. Amnesty International opposes the death penalty in all cases without reservation. Amnesty International works for abolition of the death penalty in law and appeals for clemency whenever it leams of an imminent execution. The issue of the death penalty defines a choice before each society and each of its citizens. It is a choice about the son of world people want and will work to achieve: a world in which the state is permitted to kill as a legal punishment or a world based on respect for human life and human rights - a world without executions.