The death penalty and international law
The worldwide trend towards abolition, underway for more than fifteen years, was again confirmed in 2016 and the first six months of 2017.
There are currently 160 countries and territories that, to different extents, have decided to renounce the death penalty. Of these: 105 are totally abolitionist; 6 are abolitionist for ordinary crimes; 6 have a moratorium on executions in place and 43 are de facto abolitionist (i.e. Countries that have not carried out any executions for at least 10 years or countries which have binding obligations not to use the death penalty).
Countries retaining the death penalty worldwide have gradually declined over the last ten years: in 2017, as of 30 June, there were 38 retentionist countries, compared to 54 in 2005.
This trend has been sped up by the UN General Assembly Resolution on the death penalty, approved for the first time in 2007, again in 2008 and then tabled every two years. The last approval was on December 18, 2016 and the text reiterates “that a moratorium on the use of the death penalty contributes to respect for human dignity and to the enhancement and progressive development of human rights, and considering that there is no conclusive evidence of the deterrent value of the death penalty”.
The UN Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment (UNSR Torture) in 2012 said that a customary norm prohibiting the death penalty under all circumstances is in the process of formation (1)
However, there are three international non-derogable principles to the imposition of death penalty in all circumstances, also in cases of emergency and in counter-terrorism legislation.
The first non-derogable principle of legality, incorporated into the Universal Declaration of Human Rights (art. 11), eventually codified in the ICCPR (art. 15) states that laws criminalizing acts of terrorism must be accessible, formulated with precision, non-discriminatory, non-retroactive and in accordance with international law, including human rights law.
The second non-derogable principle of the “most serious crimes” threshold refers to the ICCPR which, in art 6(2), establishes the “most serious crimes” threshold which, according with the interpretation of the UN Special Rapporteur on extrajudicial, summary or arbitrary executions (UNSR Executions) and the UN Secretary General, means that the death penalty should only be used for crimes of “murder and/or intentional killing”.
The third non-derogable principle of fair trial refers to the ICCPR (art. 14) and the ACHPR (art. 7) which recognise the right to a fair trial, interpreted by the UN Human Rights Committee as a non-derogable right (Derogations during a State of Emergency, 31 August 2001, CCPR/C/21/Rev.1/Add.11) with the UNSR Executions stating that, where criminal justice systems are not capable of reliably respecting fair trial standards, to avoid the execution of innocent persons, the States should impose a moratorium on the application of the death penalty for all offences (UNSR Executions, Philip Alston, 20 May 2010, A/HRC/14/24, Para. 51(a)).
A fair trial guarantees: equality before the courts and tribunals; a fair and public hearing by a competent, independent and impartial tribunal established by law; presumption of innocence; a minimum list of rights in criminal proceedings; a higher court to review the conviction or sentence and no double jeopardy.
A general obligation of accordance of national counter-terrorism measures with human rights law is established in UNSC Resolution 1456(2003), 1624(2005), 1963(2010), 2083(2012)
Furthermore, Somalia (2008 to 2016) and Tunisia (2012 to 2016) voted in favour of the UNGA Resolutions calling upon all States to restrict the use of the death penalty and establish a moratorium on executions with a view to abolition, meanwhile Egypt promised to implement its voluntary commitments taken during the UPR process in 2014, including full respect for fundamental human rights while combating terrorism.
(1) UN General Assembly, 67th Session, Interim report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (SR torture interim report), 9 August 2012, A/67/279 (accessed 24 February 2014 at: http://www.refworld.org/docid/509a69752.html)