The ICCPR as a ‘Living Instrument’: The Death Penalty as Cruel, Inhuman and Degrading Treatment
| Author | Amrita Mukherjee |
| Published date | 01 November 2004 |
| Date | 01 November 2004 |
| DOI | http://doi.org/10.1350/jcla.68.6.507.54143 |
| Subject Matter | Article |
Instrument’: The Death Penalty
as Cruel, Inhuman and
Degrading Treatment
Amrita Mukherjee*
Abstract
This article examines the recent views of the UN Human Rights
Committee on the issues related to the death penalty. Obligations under
Articles 6 (the right to life) and 7 (the right not to be subjected to torture
or other, cruel, inhuman and degrading treatment or punishment) are
correlated. Despite widely divergent opinions within the Committee on
the issue, this human rights body is moving towards strengthening the
obligations of abolitionist states and, in so doing, restricting the availability
of the sanction for retentionist states. This is consistent with the object and
purposes approach and the nature of the ICCPR as a living instrument.
The purpose of this article is to discuss the extent to which the recent
‘views’ of an United Nations treaty-based human rights body, the
Human Rights Committee (HRC), have impacted on the duties of states
that have abolished the death penalty in relation to individuals for
whom there is a real likelihood that the death penalty will be imposed,
if extradited to another ‘retentionist’ state. The International Covenant
on Civil and Political Rights1 (ICCPR) forms part of the International Bill
of Rights and includes, under Article 6,2 the right to life. An exception to
the right to life is the imposition of capital punishment as a lawful
* Lecturer in Law, University of Leeds.
1 (1976) 999 UNTS 171.
2 Article 6:
1. Every human being has the inherent right to life. This right shall be protected
by law. No one shall be arbitrarily deprived of his life.
2. In countries which have not abolished the death penalty, sentence of death
may be imposed only for the most serious of crimes in accordance with the
law in force at the time of the commission of the crime and not contrary to
the provisions of the present Covenant and to the Convention on the
Prevention and Punishment of the Crime of Genocide. This penalty can only
be carried out pursuant to a final judgement rendered by a competent court.
3. When deprivation of life constitutes the crime of genocide, it is understood
that nothing in this article shall authorise any state party to the present
Covenant to derogate in any way from any obligation assumed under the
provisions of the Convention on the Prevention and Punishment of the Crime
of Genocide.
4. Anyone sentenced to death shall have the right to seek pardon or
commutation of the sentence. Amnesty, pardon or commutation of the
sentence of death may be granted in all cases.
5. Sentence of death shall not be imposed for crimes committed by persons
below the age of 18 years of age and shall not be carried out on pregnant
women.
6. Nothing in this article shall be invoked to delay or to prevent the abolition of
capital punishment by any state party to the present Covenant.
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The Journal of Criminal Law
sanction, for the most serious of crimes, subject to conditions.3 However,
it is apparent also from this Article that the abolition of the death penalty
is desirable. This central dichotomy has created problems for the HRC, in
its quasi-judicial function and developed jurisprudence that debates the
surrounding effects of the imposition of capital punishment. It is widely
acknowledged that the imposition of the death penalty constitutes cruel,
inhuman and degrading treatment. However, as it may be imposed,
albeit under limited circumstances, the HRC has sought to restrict its use
through other related provisions of the ICCPR. Further, obligations have
been imposed on states that have abolished the punishment within their
own jurisdictions. The drive towards abolition is therefore strengthened,
as the death penalty may not be imposed in circumstances contrary to
the other provisions of the ICCPR. Articles 7 and 10(1) of the ICCPR, in
particular, have been employed by the Committee in this respect.
Article 74 of the ICCPR prohibits the use of torture and other cruel,
inhuman and degrading treatment or punishment, and Article 10(1)5
protects those deprived of their liberty from the elements set out in
Article 7. A recent decision of the Committee has presented an inter-
esting development in the debate that those states that have abolished
the death penalty (‘abolitionist’) may not extradite or return an in-
dividual to a state that has retained the death penalty (‘retentionist’)
without first obtaining an assurance that the death penalty will not be
imposed on such a person on his or her return.6 This limits the re-
tentionist state in its imposition of the sanction and so has far-reaching
effects. The importance of this decision and what it signifies in the
continuing debate on the legality of the death sentence in international
human rights law is discussed below.
The HRC (an 18-member committee of independent experts) is
charged with the supervision of the ICCPR and Optional Protocols
thereto and may make ‘general comments’ on Covenant provisions.
Under the First Optional Protocol (OP1),7 it may also receive and con-
sider communications from individuals (of state parties that have rat-
ified both these instruments) that violations of the substantive
provisions of the Covenant have occurred. Subject to admissibility, the
Committee forwards its views8 to the parties concerned. ICCPR obliga-
tions and good faith dictate that the state party abides by the views of the
HRC. Many of the communications that are received by the Committee
3 See General Comment 6 on the right to life, para. 6. UN Doc. HRI/GEN/1/Rev.6, 12
May 2003: Compilation of General Comments and General Recommendations
adopted by Human Rights Treaty Bodies.
4 Article 7: No one shall be subjected to torture or other cruel, inhuman and
degrading treatment or punishment.
5 Article 10(1): All persons deprived of their liberty shall be treated with humanity
and with respect for the inherent dignity of the human person.
6 Judge v Canada, Communication No. 829/1998 of 20 October 2003 at the 78th
Session of the HRC. UN Doc. A/58/40 (Vol. II), pp. 76–103.
7 16 December 1966 999 UNTS 302 (entered into force 23 March 1976).
8 Final views are given under Article 5(4) of OP1 on individual communications.
These views do not have binding effect but indicate the Committee’s observations
on Covenant provisions and the compliance of states with these provisions through
individual communications.
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The ICCPR as a ‘Living Instrument’
allege violations of Articles 6, 7 and 10(1), the majority of which
challenge the imposition of the death penalty and the surrounding
related issues. After deciding whether a violation has occurred, it is then
for the state party concerned to apply the decision to the individual
concerned and may result in the commutation of sentences. Commu-
nications by authors on so-called ‘death row’ or even those who antici-
pate being sentenced to the death penalty if extradited are submitted
only after the exhaustion of all other remedies.
Although the Committee’s views present a consolidated official ap-
proach,9 which remains largely static, in applying the provisions of the
ICCPR to the death penalty and its surrounding circumstances, the
underlying tensions on the subject are starkly exposed by the individual
opinions of the members of the Committee. These dissenting and con-
curring opinions, indicate lack of cohesion apparent within the Commit-
tee on how, if at all, the imposition of the death penalty may be
restricted under the Covenant. It is apparent that most of the members
find the death penalty abhorrent and therefore any method of execution
and any time spent on judicial proceedings before the carrying out of the
sentence are viewed as reprehensible. However, no other single issue
before the Committee has fuelled more disagreement within its mem-
bership as to how it should approach death penalty issues, as can be seen
from the discussions outlined below. At first sight it may appear that
such disagreements undermine the authority of the Committee in pro-
ducing clear and consistent case law.
This writer argues, however, that although the HRC has been placed
in a position between the devil and the deep blue sea, recent decisions
would suggest a strengthening of its underlying abolitionist stance,
gathering on human rights norms in the process. Given that the ICCPR
itself allows for capital punishment, albeit in narrow circumstances, but
that the movement for abolition is intensifying, the HRC is confined to
restricting the circumstances under which the death penalty may be
imposed. The HRC has had to reconcile subjective opinions of the
members of the Committee with the penal and sentencing systems of
the...
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