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Report No. 262

A. Developments in the International Human Rights Law Framework

(i) Capital Punishment in International Human Rights Treaties

3.8.1 Capital punishment has been regulated in international human rights treaties as one aspect of the right to life, as contained in the International Covenant on Civil and Political Rights ('ICCPR'). With time, some aspects of the imposition and implementation of capital punishment have also been found to violate the prohibition against cruel, inhuman, and degrading treatment and punishment. With the coming into force of the Second Optional Protocol to the ICCPR, the international community saw the first global, international legal instrument that aimed at abolishing the death penalty.

a. The International Covenant on Civil and Political Rights

3.8.2 The International Covenant on Civil and Political Rights ('ICCPR') is one of the key documents discussing the imposition of death penalty in international human rights law. The ICCPR does not abolish the use of the death penalty, but Article 6 contains guarantees regarding the right to life, and contains important safeguards to be followed by signatories who retain the death penalty.

3.8.3 Article 6(2) states:

In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious 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 judgment rendered by a competent court.

3.8.4 Article 6(4) requires states to ensure that "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", and Article 6(5) mandates that a "Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women."

3.8.5 The Un Human Rights Committee (the UN body whose interpretations of the ICCPR are considered authoritative) discussed Article 6 of the ICCPR in detail in its General Comment in 1982. The Committee clarified that while the ICCPR did not explicitly require the abolition of the death penalty, abolition was desirable, and the Committee would consider any move towards abolition as "progress in the enjoyment of the right to life."131

The Committee also said that death penalty should be an "exceptional measure". It reiterated important procedural safeguards including that the death penalty can only be imposed in accordance with the law in force at the time of the commission of the crime, and that the right to a fair hearing by an independent tribunal, the presumption of innocence, minimum guarantees for the defence, and the right to review by a higher tribunal must all be strictly observed.132

131 Human Rights Committee, General Comment No 6 (1982) at para 6, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.1 at 6 (1994)-"The article also refers generally to abolition in terms which strongly suggest (paras. 2 (2) and (6)) that abolition is desirable. The Committee concludes that all measures of abolition should be considered as progress in the enjoyment of the right to life within the meaning of article 40, and should as such be reported to the Committee".

132 Human Rights Committee, General Comment No 6 (1982) at Para 7, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.1 at 6 (1994).

3.8.6 The Committee also reviews periodic reports of state-parties to the ICCPR, and has often referred to abolition of the death penalty in its observations on reports of retentionist states.133 In other cases, the Committee has also reiterated the importance of following the safeguards listed in Article 6 and other provisions of the ICCPR, and provided a road-map to abolition.134

133 For example, in 2014, it recommended that Sierra Leone "should expedite its efforts to abolish the death penalty and to ratify the Second Optional Protocol to the Covenant", in para 18, Un Human Rights Committee, Concluding observations on the initial report of Sierra Leone, 25 March 2014, CCPR/C/SLE/CO/1.

In 2009, it noted that while Russia had a de facto moratorium on executions since 1996, it "should take the necessary measures to abolish the death penalty de jure at the earliest possible moment, and consider acceding to the Second Optional Protocol to the Covenant", in para 12, Un Human Rights Committee, Concluding observations of the Human Rights Committee: Russian Federation, 24 November 2009, CCPR/C/RUS/CO/6.

134 For example, in its 2008 review of Japan, the Committee recommended, "Regardless of opinion polls, the State party should favourably consider abolishing the death penalty and inform the public, as necessary, about the desirability of abolition" in para 16, Un Human Rights Committee, Concluding observations of the Human Rights Committee: Japan, 18 December 2008, CCPR/C/JPN/CO/5. Similarly, in 2006 the Committee asked the United States to "review federal and state legislation with a view to restricting the number of offences carrying the death penalty the State party should place a moratorium on capital sentences, bearing in mind the desirability of abolishing death penalty" in para 29, Un Human Rights Committee, Concluding observations of the Human Rights Committee: United States of America, 15 September 2006, CCPR/C/USA/CO/3.

3.8.7 At present, 168 states, including India, are parties to the ICCPR. The Committee reviewed India's report in 1996 and recommended that India "abolish by law the imposition of the death penalty on minors and limit the number of offences carrying the death penalty to the most serious crimes, with a view to its ultimate abolition."135

135 Un Human Rights Committee, Concluding observations of the Human Rights Committee: India, 4 August 1997, CCPR/C/79/Add.81 at para 20.

b. The Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty

3.8.8 The Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty is the only treaty directly concerned with abolishing the death penalty, which is open to signatures from all countries in the world. It came into force in 1991, and has 81 states parties and 3 signatories. India has not signed this treaty.

3.8.9 Article 1 of the Second Optional Protocol states that "No one within the jurisdiction of a State Party to the present Protocol shall be executed", and that "Each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction." No reservations are permitted to the Second Optional Protocol, "except for a reservation made at the time of ratification or accession that provides for the application of the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime."136 Some state parties have made such reservations.

136 Article 2 (1), Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty.

c. The Convention on the Rights of the Child

3.8.10 Similar to the ICCPR, Article 37(a) of the Convention on the Rights of the Child ('CRC') explicitly prohibits the use of the death penalty against persons under the age of 18. As of July 2015, 195 countries had ratified the CRC. Article 37(a) states:

States Parties shall ensure that: (a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.

3.8.11 The Committee on the Rights of the Child has clarified that while some presumed the rule only prohibited the execution of persons below the age of 18, "death penalty may not be imposed for a crime committed by a person under 18 regardless of his/her age at the time of the trial or sentencing or of the execution of the sanction."137

137 Committee on the Rights of the Child, General Comment 10: Children's rights in juvenile justice, 25 April 2007, CRC/C/GC/10, at para 75, available at
http://www2.ohchr.org/english/bodies/crc/docs/CRC.C.GC.10.pdf
(last viewed on 25.08.2015).

d. The Convention against Torture and Cruel, Inhuman or Degrading Treatment or Punishment

3.8.12 Increasingly, there is an analysis of the death penalty as violating norms against torture and cruel, inhuman, and degrading treatment or punishment.138 In this context, the Convention against Torture and Cruel, Inhuman or Degrading Treatment or Punishment ('the Torture Convention') and the UN Committee against Torture have been sources of jurisprudence for limitations on the death penalty as well as necessary safeguards.

138 See, for example, office of the High Commissioner for Human Rights, Death penalty increasingly viewed as torture, UN Special Rapporteur finds, 23 October 2012, available at
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=12685&LangID=E#sthash.Gu6NTA2d.dpuf(last viewed on 25.08.2015).

3.8.13 The Torture Convention does not regard the imposition of death penalty per se as a form of torture or cruel, inhuman or degrading treatment or punishment ('CIDT'). However, some methods of execution139 and the phenomenon of death row140 have been seen as forms of CIDT by UN bodies. While India has signed the Torture Convention, it has yet not ratified it.

139 The Committee against Torture was "specially troubled by the recent cases of botched executions in Arizona, Oklahoma, and Ohio" and asked the US to "review its execution methods in order to prevent pain and prolonged suffering", in para 25, Concluding observations on the combined third to fifth periodic reports of the United States of America, 19 December 2014, CAT/C/USA/CO/3-5.

140 In its Concluding Observations on Kenya's report, the Committee against Torture said that it remained concerned about the "uncertainty of those who serve on death row, which could amount to ill-treatment", and urged Kenya to "take the necessary steps to establish an official and publicly known moratorium of the death penalty with a view of eventually abolishing the practice", in para 29, UN Committee Against Torture, Concluding observations of the Committee against Torture: Kenya, 19 January 2009, CAT/C/KEN/CO/1.

While reviewing China's periodic report, the Committee against Torture expressed concern "at the conditions of detention of convicted prisoners on death row, in particular the use of shackles for 24 hours a day, amounting to cruel, inhuman or degrading treatment", in para 34, UN Committee Against Torture, Concluding observations of the Committee against Torture: China, 12 December 2008, CAT/C/CHN/CO/4.

In the context of Japan, the Committee found that "unnecessary secrecy and arbitrariness surrounding the time of execution" and "principle of solitary confinement after the final sentence is handed down" could amount to CIDT, in para 19, UN Committee Against Torture, Conclusions and Recommendations of the Committee against Torture: Japan, 3 August 2007, CAT/C/JPN/CO/1.

e. International Criminal Law

3.8.14 The international trend towards abolition of the death penalty is also visible in the evolution of international criminal law. The death penalty was a permissible punishment in the Nuremberg141 and Tokyo142 tribunals, both of which were established following World War II. Since then, however, international criminal court.- including the Statute of the International Criminal Tribunal for the former Yugoslavia,143 the Statute of the International Criminal Tribunal for Rwanda,144 the Statute of the Special Court for Sierra Leone145 and the Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia14.- exclude the death penalty as a permissible punishment.

The same is true for the Rome Statute of the International Criminal Court,147 where judges may only impose terms of imprisonment. It must be noted that these tribunals do not use the death penalty, despite routinely dealing with the most serious crimes under international law, including genocide, war crimes, and crimes against humanity. It is relevant to that India is not signatory to the Rome Statute.

141 United States Holocaust Memorial Museum, International Military Tribunal at Nuremberg, Last updated 18 August 2015, available at:
http://www.ushmm.org/wlc/en/article.php?ModuleId=10007069
(last viewed on 25.08.2015).

142 University of Virginia, The Tokyo War Crimes Trial: A digital exhibition, available at:
http://lib.law.virginia.edu/imtfe/tribunal
(last viewed on 20.08.2015).

143 Statute of the International Criminal Tribunal for the former Yugoslavia, available at:
http://www.icty.org/x/file/Legal%20Library/Statute/statute_sept09_en.pdf
(last viewed on 15.08.2015).

144 Statute of the International Criminal Tribunal for Rwanda, available at:
http://legal.un.org/avl/pdf/ha/ictr_EF.pdf
(last viewed on 15.08.2015).

145 Statute of the Special Court for Sierra Leone, available at:
http://www.rscsl.org/Documents/scsl-statute.pdf
(last viewed on 15.08.2015).

146 Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia, available at:
http://www.eccc.gov.kh/sites/default/files/legaldocuments/ KR_Law_as_amended_27_Oct_2004_Eng.pdf
(last viewed on 15.08.2015).

147 Rome Statute of the International Criminal Court, available at:
http://www.icccpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf
(last viewed on 15.08.2015).

f. International Treaty Obligations in Indian Law

3.8.15 of the treaties mentioned above, India has ratified the ICCPR and the CRC, and is signatory to the Torture Convention but has not ratified it. Under international law, treaty obligations are binding on states once they have ratified the treaty.148 Even where a treaty has been signed but not ratified, the state is bound to "refrain from acts which would defeat the object and purpose of a treaty".149

148 See Article 26, Vienna Convention on the Law of Treaties (VCLT): "Every treaty in force is binding upon the parties to it and must be performed by them in good faith."

149 Article 18, Vienna Convention on the Law of Treaties (VCLT).

3.8.16 In India, domestic legislation is required to make international treaties enforceable in Indian law. Jolly George Verghese & Anr v. The Bank of Cochin, 1980 AIR 470 The Protection of Human Rights Act, 1994, incorporates the ICCPR into India law through section 2(d) and 2(f).

Section 2 (d) states that, "human rights" means the rights relating to life, liberty equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India. Section 2(f) states that, "International Covenants" means the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural rights adopted by the General Assembly of the United Nations on the 16th December, 1966.

3.8.17 Further, according to Article 51(c) of the Indian Constitution, the state shall endeavor to "foster respect for international law and treaty obligations in the dealings of organised peoples with one another." While this does not make all of India's treaty obligations automatically binding on India, courts have respected rules of international law where there is no contradictory legislation in India. In National Legal Services Authority v. Union of India, (2014) 5 SCC 438, for example, the Supreme Court of India said:

"Any international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into those provisions, e.g., Articles 14, 15, 19 and 21 of the Constitution to enlarge the meaning and content thereof and to promote the object of constitutional guarantee."



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