by Maria Savvidou, coordinator of the unit «European & International Law»

Two thirds of the world’s countries have abolished capital punishment. The death penalty violates the right to life and the right to not be subjected to cruel, inhuman or degrading treatment as guaranteed by the Universal Declaration of Human Rights. However, there is no universally binding international law that prohibits death penalty. There were 2,738 people on death row only in the United States on July 1, 2018 and executions are still taking place in almost 25 countries (highest amount of executions in China, Iran, Pakistan, Saudi Arabia and the US). Faced with this reality, the international community had to establish strict rules under which the death penalty may be used by those states which have not yet abolished it.

The Council of Europe with Protocols 6 and 13 of the European Convention on Human Rights was the first regional system to incorporate a fully abolitionist international norm. These two Protocols commit all its member states to permanent abolition of the death penalty. Case law of the European Court of Human Rights has paved the way for safeguards where the death penalty is not abolished; in Ocalan v. Turkey it held that such punishment as a result of an unfair trial violates the Convention; it held that abolition as a manifestation of the right to life (article 2 of Convention) referred to all circumstances and not just peace time; in Al-Saadoon and Mufdhi v. the United Kingdom it held that death penalty also violates the prohibition of torture and inhuman and degrading treatment and punishment (article 3) because it “involves the deliberate and premeditated destruction of a human being by the State authorities causing physical pain and intense psychological suffering as a result of the foreknowledge of death”; in Bader and Kanbor v. Sweden it held that extradition of a person to a third country which applies death penalty violates articles 2 and 3 of the Convention. The Council of Europe has also undertaken legal action toward de jure abolition of the death penalty by its observer states (notably the US and Japan).

On an international level, the International Covenant on Civil and Political Rights (ICCPR) (article 6) permits the use of capital punishment in limited circumstances. The United Nations General Assembly has adopted an Optional Protocol to the ICCPR, the signatories of which agreed not to execute anyone within their jurisdiction. However, party states can make reservations “for times of war pursuant to a conviction for a most serious crime of a military nature”. Therefore, emanating from this not-so-unequivocal abolition are the Safeguards Guaranteeing the Rights of Those Facing the Death Penalty, adopted by the UN Economic and Social Council. These Minimum Standards are: (a) the death penalty is restricted to the most serious and intentional crimes; that is international crimes with lethal or other extremely grave consequences, (b) the death penalty shall not be provided for as a mandatory sentence, (c) it shall not be imposed on persons under the age of 18, pregnant women, new mothers and nursing women, the elderly and persons suffering from mental illness, (d) a judgement by an independent and impartial competent court is a prerequisite, (e) there must be clear and convincing evidence, (f) the person shall have right to appeal. A very important standard is that of the conditions and time spent on death row, as well as the way the execution would be carried out (not publicly but also not in secret).

The Rome Statute of the International Criminal Court is primarily destined to deal with the most atrocious crimes, namely crimes against humanity, genocide and war crimes. The Court does not have competence to impose a death penalty. However, there is a loophole: if it finds there is inadmissibility before the ICC, the trial can be held in a court that imposes this punishment, even though most state parties to the Rome Statute would not directly expedite a person to a country where there is risk of facing the death penalty.

The European Union has held a principled position against the death penalty in all times and all circumstances since 1981. Article 2 of the EU Charter of Fundamental Rights, which has been legally binding since 2009, provides that no one shall be condemned to death penalty or be executed. Article 19 also provides that no one shall be extradited to a country where there is serious risk of being subjected to the death penalty or other inhuman or degrading punishment or treatment. In C-353/2016, the Court broadened this protection so as to also include third country nationals who “in the past have been tortured by the authorities of their country of origin and no longer face a risk of being tortured if returned to that country, but whose physical and psychological health could, if so returned, seriously deteriorate, leading to a serious risk of them committing suicide on account of trauma resulting from the torture they were subjected to”, if there is lack of appropriate care for the physical and mental after-effects of that torture in their country of origin. Most importantly, abolition of the death penalty is a precondition for the accession of candidate countries. The EU has gone one step further by adopting a Regulation which prohibits trade in goods that have no practical use other than for their use in capital punishment or torture and ill-treatment (for example barbiturate anesthetic agents).

It cannot be said that retentionist states are restrained by customary law, as the abolition of the death penalty has not crystallized into customary international law. However, the minimum standards which accompany any capital punishment have become customary law, providing at least a minimum standard of protection to those facing this punishment. This, coupled with the no-extradition practice of the abolitionist states and the slow progress toward a universal de facto, if not de jure, prohibition, can eventually lead to an unequivocal stance against capital punishment.