Draft General Comment on the Right to Life: Death penalty under discussion

Committee discusses the abolition of the death penalty, methods of execution, procedural guarantees and the non-discriminatory application

The Committee wants states to move in the direction of abolishing the death penalty. Photo credit: The Huffington Post

At the 119th session, the Human Rights Committee continued its discussion of the draft General Comment 36 on Article 6 ICCPR, the Right to Life. The Committee examined part IV on the imposition of the death penalty, paragraphs 36 to 51.

Some interventions provoked interesting discussions on the role of the Committee and the balance between codifying the existing interpretation of the Right to Life through references to case law and concluding observations on the one hand, and persuading states towards a more progressive interpretation and developing international law to some extent on the other hand. There was especially a lively debate on the question of whether the death penalty as such amounts to cruel and degrading treatment, or even torture. 

The webcast of the discussions is available here: part 1, part 2 and part 3.

"This paragraph [on the interplay between the application of the death penalty and the principle of non-discrimination] is very important and should be strengthened."

- Member of the Human Rights Committee

Progressively moving towards abolition

§36 of the draft requires states to move in the direction of progressively abolishing the death penalty. It prohibits the reintroduction of the death penalty, the introduction of new offenses or the removal of defenses. All members agreed to add a sentence clarifying that the second Protocol to the Covenant cannot be revoked.

§37 states that the notion of ‘most serious crimes’ should be interpreted restrictively. An extreme example of this, is imposing the death penalty for the crime of homosexuality. According to the Committee, these acts should not be criminalized in the first place and thus certainly not be punished by the death penalty. Committee members debated on the interpretation of “establishing opposition groups” in §38. Some members stressed that this was too vague and suggested “political parties”. Others preferred “expressing dissent opinion” since this is a broader term. It was finally decided to come back to this paragraph later on.

The Committee then moved to §40, which explains article 6§3 of the Covenant. The Rapporteur clarified why this paragraph was introduced: it reminds the state parties of their obligations under the Genocide Convention. The members disagreed on whether this clarification is necessary and decided to come back to it later. 

Methods of execution

A discussion arose on the lawful methods of execution of the death penalty in §42. One Expert suggested that the Committee should not take position on whether the death penalty as such amounts to degrading treatment. Other members did not agree with the indicative list of prohibited methods. Some Experts proposed to add hanging to the list since this method amounts to degrading treatment, but others wanted to remove the list in its entirety. The Rapporteur clarified that the only lawful method today is a cocktail of drugs. He warned that hanging is a very common method and that excluding almost all lawful methods comes very close to saying that the death penalty as such is a violation of art. 7. This might cause backlash from states. 

Fair trial guarantees and other procedural problems

When a deprivation of life happens in a context that violates another provision of the Covenant, that deprivation becomes arbitrary and violates art. 6. In the draft, the example is given of a religious fatwa. Some members found that this was clearly aimed at a specific state, something that the Committee should avoid doing. They proposed to replace it by “religious opinion” to make it less politicized. The Rapporteur agreed to change the wording but clarified that the Committee should not hide case law in case states are not happy with it.

§45 specifies the need to avoid wrongful convictions by adopting sufficient precautions. Some Committee members preferred to remove the reference to studies since it is subjective, but others, among which the Rapporteur, found that developing social science on false confessions and bias in line-ups is important. 

Application of the death penalty and non-discrimination

§46 of the draft is about the interplay between the application of the death penalty and the principle of non-discrimination. Some Committee members were in particular worried about the reference to statistical data to suggest a systemic problem of discrimination, while others were strong supporters of this clause. Discrimination indicates the arbitrary nature of the deprivation of liberty. A Committee member pointed out that statistical data are increasingly accepted by courts as evidence in discrimination cases. The Rapporteur agreed to revise the paragraph, taking into account the concerns, and the new version was adopted.

§50 discusses the prohibition of the death penalty to minors and pregnant women. The underlying reasons for this special protection, including the rights and interests of the unborn fetus, were deleted. This was done to make the General Comment more coherent: §7 specifies that the Covenant does not impose an obligation to recognize the right to life of unborn children.

Lastly, §51 was up for review: a deprivation of life with an exceptionally harsh impact on the individual or his/her family can amount to an arbitrary deprivation of life, violating art. 6. The paragraph contains a list of individuals that might fall under this special protection, for example individuals with serious mental disabilities. 

The Committee hopes to finish the first reading of the draft General Comment at its next session.

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