The Death Penalty Under International Law

IBAHRI Death Penalty Resolution  

While the death penalty is not prohibited under the International Covenant on Civil and Political Rights (ICCPR) or any other virtually universal treaty, a number of instruments in favour of abolition have entered into force in recent years.

At the international level, the most important treaty provision relating to the death penalty is Article 6 of the ICCPR, which is widely accepted to form part of customary international law. Under Article 6 there are a number of clear limitations on the imposition of the death penalty. It must be limited to only the most serious crimes and cannot be imposed if:

  • a fair trial has not been granted;
  • other ICCPR rights have been violated;
  • the crime was not punishable by the death penalty at the time it was committed;
  • the offender is not entitled to seek pardon or a lesser sentence;
  • the offender is under the age of 18;
  • the offender is pregnant.

Limitation to the most serious crimes

While 'limitation to the most serious crimes' is an established principle of international law, the term lacks overall definition and agreement. The UN General Assembly has endorsed a set of Safeguards guaranteeing the protection of the rights of those facing the death penalty which stipulates that 'the most serious crimes' only applies to international crimes with lethal or other extremely grave consequences. The UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions has similarly stated that the death penalty should be eliminated for economic crimes, drug-related offences, victimless offences and actions relating to moral values including adultery, prostitution and sexual orientation. This interpretation is contested by a number of countries.

The right to a fair trial

Article 6 of the ICCPR clearly states that the death penalty cannot be imposed if a fair trial has not been granted. The UN Human Rights Committee has interpreted this to mean that all provisions contained within the ICCPR must be upheld and, if this is not the case, the death penalty cannot be imposed. Recognised international fair trial standards include but are not limited to: the presumption of innocence; being informed promptly and in detail of all charges; the right to appoint counsel of one's own choosing; sufficient time to prepare a defence; to be tried without undue delay by an independent, impartial tribunal; and the right to review by a higher tribunal.

Other breaches of the ICCPR

The death penalty cannot be imposed when other rights protected by the ICCPR have been breached. For instance, the opinion that the death penalty constitutes a breach of the right to freedom from torture or other cruel, inhuman or degrading treatment is gaining ground. This breach of human rights may occur in the period leading up to execution, the method of execution or the loss of life itself.

For instance, various methods of execution have been identified as unacceptable under international law. The UN Human Rights Committee has deemed that the use of the gas chamber constitutes cruel, inhuman and degrading treatment. Similarly, stonings are heavily criticised, particularly where the size of the stones is limited to prolong the suffering and death of the condemned person.

To read more about the status of the death penalty under international law download the Background Paper to the IBAHRI Resolution on the Abolition of the Death Penalty.