The abolition of the death penalty in international law

Abstract

This thesis gives a broad overview of the legal process in international law of the death penalty over the past fifty years. In 1948, the Universal Declaration of Human Rights proclaimed the right to life. In 1966, the United Nations Covenant on Civil and Political Rights established that no one shall be arbitrarily deprived of life. It went on to add that in countries where the death penalty has not been abolished, a death sentence can only be pronounced for the most serious crimes in accordance with the law in force at the time of the commission of the crime. In 1989, an additional protocol to the Covenant, abolishing the death penalty in peacetime, was adopted. Thus we have moved from the proclamation of a principle to its regulation, and from regulation of that principle to abolition. On the other hand European Law underwent an evolution parallel to that of the United Nations. The European Convention on Human Rights specified in 1950 that everyone's right to life shall be protected by law and that no one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. The Sixth Protocol to the Convention abolished, in 1982, the death penalty, except in time of war or imminent danger of war. Protocol Number 13 in the year 2002 has raised new hopes in achieving in the near future the universal abolition of the death penalty. If we look at the Western hemisphere, in 1948, the American Declaration of the Rights and Duties of Man proclaimed the right to life in terms similar to those of the Universal Declaration. In 1969, the American Convention on Human Rights regulated the death penalty in terms which were inspired largely by the UN Covenant. However in 1993 the Additional Protocol to the American Convention on Human Rights to Abolish the Death Penalty came in force obliging State Parties to this Protocol not to apply the death penalty in their territory to any person subject to their jurisdiction, with the exception that at the time of ratification or accession, State Parties may declare that they reserve the right to apply the death penalty in wartime in accordance with International Law, for extremely serious crimes of a military nature. Abolitionists consider the death penalty as a cruel way to punish people no matter what the method of execution is. They also doubt its utility, noting that criminality is no higher in abolitionist States than in retentionist States. They stress its irrevocable nature, especially in cases of judicial error, and add that the personality of the individual who is to be executed may be quite different from that of the offender at the time of the crime. But public opinion may remain somewhat unconvinced. Many people still accept the principle of 'an eye for an eye, a tooth for a tooth', particularly when atrocious crimes are involved. Some claim that the exemplary nature of the death penalty may play a preventive role, at least in certain cases. Others question the alternatives available in the case of dangerous repeat offenders. They fear that the victim's right to life may take second place to the right of life of the criminal. In this thesis I shall address these problems by analyzing various international instruments as above mentioned. Although the death penalty has been abolished in many countries, it remains in force in several parts of the world, notably the United States, Africa and countries which follow Islamic Law. In this thesis I shall also discuss the possible emergence of customary norms that go beyond the conventional instruments and that indirectly may abolish the death penalty.