Statement of High Commissioner for Human Rights Navi Pillay at the OHCHR-Global Panel on “Moving away from the Death Penalty – Lessons from national experiences”, 3 July 2012, New York.
Distinguished delegates, Representatives of civil society, Colleagues, and friends,
I would like to extend a warm welcome to all of you, and thank you for participating in this event organized by my Office on “Moving away from the death penalty – Lessons from national experiences.”
The global trend and position on the death penalty have evolved over the years. An increasingly large number of Member States from all regions have acknowledged that the death penalty undermines human dignity, and that its abolition, or at least a moratorium on its use, contributes to the enhancement and progressive development of human rights.
There is no right more sacred than the right to life. Since the beginning of my mandate, I have engaged in a dialogue with many States on this issue. During my recent country missions, I had encouraging discussions with senior officials about abolishing the death penalty or imposing at least a moratorium on it. In addition, my Office works at the national level to stimulate the debate, including through seminars which provide a forum for a core group of scholars and practitioners that come forward with convincing arguments in favor of the abolition of the death penalty.
With regard to retentionist States, international law requires as a minimum full compliance with the clear restrictions prescribed in particular in article 6 of the International Covenant on Civil and Political Rights (ICCPR). According to this provision, its application shall be limited to the “most serious crimes. ” It should be recalled that this term has been interpreted to mean that the death penalty should only be applied to the crime of murder. Therefore, in those States that have not yet abolished the death penalty, the use of capital punishment for drug offences or for offences carried out in connection with transnational organized crime is prohibited if the offences in question do not involve a taking of life. Furthermore, the death penalty cannot be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.
States that have maintained the death penalty must ensure scrupulous respect of due process guarantees. The imposition of a death sentence upon conclusion of a trial in which the provisions of article 14 of the ICCPR have not been respected constitutes a violation of the right to life. Those accused of capital offences must be effectively assisted by a lawyer at all stages of the proceedings. Furthermore, executions should not take place when an appeal or other recourse is pending, and there must be the possibility for the individual concerned to seek pardon or commutation of the sentence.
Non-compliance with the principle of non-discrimination is also a major concern when considering the application of the death penalty. A death sentence is often imposed on less privileged individuals who do not have sufficient access to effective legal representation. Membership of a minority has often been identified as a significant factor in the decision that led to the sentence of death and execution. In addition, due regard is often lacking for the UN Safeguards Guaranteeing Protection of those Facing the Death Penalty, approved by ECOSOC in 1984, which prohibit the carrying out of the death penalty on persons “who have become insane.”
Methods of execution should meet the standards of “least possible physical and mental suffering.” Otherwise, the execution will constitute a violation of freedom from torture, inhuman or to cruel, inhuman or degrading treatment or punishment. It is difficult to think of a humane method of executions that can meet these criteria. Also troubling are the length and conditions imposed on individuals on death row.
Judges often complain that executive stipulations of mandatory sentences of death for specific crimes, is an interference on judicial discretion to determine the appropriate sentence. The sentence of death is so grave that it should not be mandatory. Nor can it be carried out in secret, which would make it amount to inhuman treatment of the executed person’s family.
A key obligation to bear in mind for any State that has itself abolished the death penalty is not to expel, extradite or otherwise remove from its jurisdiction individuals who face a real risk of a death sentence and execution in the country to which they are removed, without ensuring that the death penalty would not be carried out. Extradition or other transfer to such a country accordingly requires the procurement of effective guarantees or assurances to the effect that, at a minimum, the death penalty, if imposed, will not be carried out.
Finally, it should be recalled that the lack of data with regard to the number of executions or the number of individuals on death row is a serious impediment to any national debate that may lead to a move towards abolition of capital punishment in a given State . It will also be important for the effectiveness and transparency of such a debate to ensure that the public is provided with all sides of the arguments and with information and accurate statistics on criminality and the various effective ways to combat it, short of the death sentence.
Distinguished delegates, Ladies and gentlemen,
It is interesting to note that in the early 1960s, when drafting the Covenant, its authors were already paving the way for the move in international law towards the abolition of the death penalty. The last paragraph of article 6 of the ICCPR provides that “nothing in this article shall be invoked to delay or prevent the abolition of capital punishment in any State party to the Covenant”. This move, which materialized in 1989 through the adoption of the Second Optional Protocol to the International Covenant on the Civil and Political Rights, to-date ratified by 74 States, is also reflected in a number of regional instruments supporting the abolition of the death penalty. I call upon States that have not yet done so to ratify the Second Optional Protocol, or as a strict minimum to place a formal moratorium on the use of the death penalty until they are ready to work towards its abolition.
I am grateful to panelists that have come from all parts of the world to share their experience with us today, in particular regarding the process of transition from capital punishment to abolition, or their experience, at times close or personal, of injustice related to the imposition of the death penalty.
I wish you a rich and fruitful discussion.