Document - The Death Penalty V. Human Rights: Why
Abolish the Death Penalty?
THE DEATH PENALTY V. HUMAN RIGHTS
Why Abolish the Death Penalty? (1)
September 2007
The time has come to abolish the death penalty
worldwide. The case for abolition becomes more compelling with each passing
year. Everywhere experience shows that executions brutalize those involved in
the process. Nowhere has it been shown that the death penalty has any special
power to reduce crime or political violence. In country after country, it is
used disproportionately against the poor or against racial or ethnic
minorities. It is also used as a tool of political repression. It is imposed
and inflicted arbitrary. It is an irrevocable punishment, resulting inevitably
in the execution of people innocent of any crime. It is a violation of
fundamental human rights.
Over the past decade an average of at least three
countries a year have abolished the death penalty, affirming respect for human
life and dignity.(2) Yet too many governments still believe that they can solve
urgent social or political problems by executing a few or even hundreds of
their prisoners. Too many citizens in too many countries are still unaware that
the death penalty offers society not further protection but further brutalization.
Abolition is gaining ground, but not fast enough.
The death penalty, carried out in the name of the
nation’s entire population, involves everyone. Everyone should be aware of what
the death penalty is, how it is used, how it affects them, how it violates
fundamental rights.
The death penalty is the premeditated and
cold-blooded killing of a human being by the state. The state can exercise no
greater power over a person than that of deliberately depriving him or her of
life. At the heart of the case for abolition, therefore, is the question of
whether the state has the right to do so.
When the world’s nations came together six decades
ago to found the United Nations (UN), few reminders were needed of what could
happen when a state believed that there was no limit to what it might do to a
human being. The staggering extent of state brutality and terror during World
War II and the consequences for people throughout the world were still
unfolding in December 1948, when the UN General Assembly adopted without
dissent the Universal Declaration of Human Rights.
The Universal Declaration 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 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.
Self-defence may be held to justify, in some cases,
the taking of life by state officials: for example, when a country is locked in
warfare (international or civil) or when law-enforcement officials must act
immediately to save their own lives or those of others. Even in such situations
the use of lethal force is surrounded by internationally accepted legal
safeguards to inhibit abuse. This use of force is aimed at countering the
immediate damage resulting from force used by others.
The death penalty, however, is not an act of
self-defence against an immediate threat to life. It is the premeditated
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, inhumane 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.
If hanging a woman by her arms until she
experiences excruciating pain is rightly condemned as torture, how does one
describe hanging her by the neck until she is dead? If administering 100 volts
of electricity to the most sensitive parts of a man’s body evokes disgust, what
is the appropriate reaction to the administration of 2,000 volts to his body in
order to kill him? If a pistol held to the head or a chemical substance
injected to cause protracted suffering are clearly instruments of torture, how
should they be identified when used to kill by shooting or lethal injection? Does
the use of legal process in these cruelties make their inhumanity justifiable?
The physical pain caused by the action of killing 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
uniquely cruel, inhuman and degrading treatment and punishment.
Internationally agreed laws and standards stipulate
that the death penalty can only be used after a fair judicial process. When a
state convicts prisoners without affording them a fair trial, it denies the
right to due process and equality before the law. The irrevocable punishment of
death removes not only the victim’s right to seek 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 realization of all rights enshrined in the
Universal Declaration of Human Rights.
As the Human Rights Committee set up under the
International Covenant on Civil and Political Rights has recognized, "The
right to life…is the supreme right from which no derogation is permitted even
in time of public emergency which threatens the life of the nation…" In a
general comment on Article 6 of the Covenant issued in 1982, the Committee
concluded that "all measures of abolition [of the death penalty] should be
considered as progress in the enjoyment of the right to life within the meaning
of Article 40".
Many
governments have recognized that the death penalty cannot be reconciled with respect
for human rights. The UN has declared itself in favour abolition. Two-thirds of
the countries in the world have now abolished the death penalty in law or
practice.
Amnesty
International's latest information shows that(3):
· 90countries
and territories have abolished the death penalty for all crimes;
· 11
countries have abolished the death penalty for all but exceptional crimes such
as wartime crimes;
· 30
countries can be considered abolitionist in practice: they retain the
death penalty in law but have not carried out any executions for the past 10
years or more and are believed to have a policy or established practice of not
carrying out executions,
· a total
of 131countries have abolished the death penalty in law or practice,
· 66other
countries and territories retain and use the death penalty, but the
number of countries which actually execute prisoners in any one year is much
smaller.
Amnesty International’ statistics also show a
significant overall decline in the number of reported executions in 2006. In
2006, 91% of all known executions took place in a small number of countries:
China, Iran, Iraq, Pakistan, Sudan and the USA. Europe is almost a death
penalty-free-zone – the main exception being Belarus; in Africa only six states
carried out executions in 2006; in the Americas only the USA has carried out
executions since 2003.
Unlike torture, "disappearances" and
extrajudicial executions, most judicial executions are not carried out in
secret or denied by government authorities. Executions are often announced in
advance. In some countries they are carried out in public or before a group of
invited observers.
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
retentionist governments, those that keep the death penalty, for the most part
openly admit to using it: 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 justification 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 preventing or
punishing the crime of murder. Elsewhere it may be deemed indispensable 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 view
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 mean is set aside in the name of some "greater 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 death 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 crime, especially the crime of murder. Yet Amnesty
International has failed to find convincing evidence that the death penalty has
any unique capacity to deter others from commuting particular crimes. A survey
of research findings on the relation between the death penalty and homicide
rates, conducted for the UN in 1988 and updated in 2002, concluded: ". . .it
is not prudent to accept the hypothesis that capital punishment deters murder
to a marginally greater extent than does the threat and application of the
supposedly lesser punishment of life imprisonment."(4)
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 of incapacitation: 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 crimes. Far
from being a solution, the death penalty gives the erroneous impressions that
"firm measures" are being taken against crime. It diverts attention
from the more complex measures which are really needed. In the words of the
South African Constitution Court in 1995, "We would be deluding ourselves
if we were to believe that the execution of...a comparatively few people each
year...will provide the solution to the unacceptably high rate of crime...The
greatest deterrent to crime is the likelihood that offenders will be
apprehended, convicted and punished".
When the arguments of deterrence and incapacitation
fall away, one is left with a more deep-seated 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 all of us.
What the argument for retribution boils down to, is
often no more than a desire for vengeance masked as a principle of justice. The
desire for vengeance can be understood and acknowledged but the exercise of
vengeance must be resisted. The history of the endeavour to establish the rule
of law is a history of the progressive restriction of personal vengeance in
public policy and legal codes.
If today’s penal systems do not sanction the
burning of an arsonist’s home, the rape of the rapist or the torture of the
torturer, it is not because they tolerate the crimes. Instead, it is because societies
understand that they must be built on a different set of values from those they
condemn.
An execution cannot be used to condemn killing; it
is killing. Such an act by the state is the mirror image of the criminal’s
willingness to use physical violence against a victim.
Related to the argument that some people
"deserve" to die is the proposition that the state is capable of
determining exactly who they are. Whatever one’s view of the retribution
argument may be, the practice of the death penalty reveals that no criminal
justice system is, or conceivably could be, capable of deciding fairly,
consistently and infallibly who should live and who should die.
All criminal justice systems are vulnerable to
discrimination and error. Expediency, discretionary decisions and prevailing
public opinion may influence the proceedings at every stage from the initial
arrest to the last-minute decision clemency. The reality of the death penalty
is that what determines who shall be executed and who shall be spared is often
not only the nature of the crimes but also the ethnic and social background,
the financial means or the political opinions of the defendant. The death
penalty is used disproportionately against the poor, the powerless, the
marginalised or those whom repressive governments deem it expedient to
eliminate.
Human uncertainty and arbitrary judgements are
factors which affect all judicial decisions. But only one decision – the
decision to execute – results in something that cannot be remedied or undone.
Whether executions take place within hours of a summary trial or after years of
protracted legal proceedings, states will continue to execute people who are
later found to be innocent. Those executed cannot be compensated for loss of
life and the whole society must share responsibility for what has been done.
It is the irrevocable nature of the death penalty,
the fact that the prisoner is eliminated forever, that makes the penalty so
tempting to some states as a tool of repression. Thousands have been put to
death under one government only to be recognized as innocent victims when
another set of authorities comes to power. Only abolition can ensure that such
political abuse of the death penalty will never occur.
sl240 When used to crush
political dissent, the death penalty is abhorrent. When invoked as a way to
protect society from crime, it is illusory. Wherever used, it brutalizes those
involved in the process and conveys to the public a sense that killing a
defenceless prisoner is somehow acceptable. It may be used to try to bolster
the authority of the state – or of those who govern in its name. But any such
authority it confers is spurious. The penalty is a symbol of terror and, to
that extent, a confession of weakness. It is always a violation of the most
fundamental human rights.
Each society and its citizens have the choice to
decide about the sort 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.
Recommendations:
Amnesty International calls on the UN General
Assembly, 62nd session, (2007) to adopt a resolution:
·
Affirming the right to life and stating that abolition of the death penalty is
essential for the protection of human rights;
· Calling
on retentionist states to establish a moratorium on executions as a first step
towards abolition of the death penalty;
· Calling
on retentionist states to respect international standards that guarantee the
protection of the rights of those facing the death penalty; and
·
Requesting the UN Secretary-General to report on the implementation of the
moratorium to the next session of the UNGA.
********
(1)
Updated first chapter from Amnesty International, When the State Kills…The
death penalty v. human rights, AI Index: ACT 51/07/89, 1989, UK
(2)
Countries that have abolished the death penalty for all crimes in the last 10
years are Albania, Armenia, Azerbaijan, Bhutan, Bosnia-Herzegovina, Bulgaria,
Canada, Côte d’Ivoire, Cyprus, East Timor, Estonia, Georgia, Greece, Liberia,
Lithuania, Malta, Mexico, Montenegro, Nepal, Poland, Philippines, Rwanda,
Samoa, Senegal, Serbia, South Africa, Turkey, Turkmenistan, Ukraine, United
Kingdom. Chile, Bolivia, Latvia and Kyrgyzstan abolished the death penalty for
ordinary crimes.
(3) 17
September 2007
(4) Roger
Hood, The Death Penalty: A World-wide Perspective, Oxford, Clarendon Press,
third edition, 2002, p. 230
Culled
from: Amnesty International