Report No. 262
3.10.1 One hundred and forty countries today have abolished the death penalty in law or practice. This trend towards abolition is evident in the developments in international law, which have limited the scope of the death penalty by restricting the nature of crimes for which it can be implemented, limiting the manner in which it can be carried out, and introducing procedural safe guards. Recent political commitments on the international stage, such as growing support for the UN General Assembly resolutions on a moratorium on executions, reaffirm this trend.
3.10.2 This chapter demonstrates that there is no evidence of a link between fighting insurgency, terror or violent crime, and the need for the death penalty. Several countries have abolished the death penalty, or maintained moratoriums on executions, despite facing civil wars, threats of insurgency or terrorist attacks.
For example, Nepal officially abolished the death penalty in 1990 and did not re-introduce it even in the aftermath of the civil war; Sri Lanka, despite a long civil war, has maintained a moratorium on the penalty; and Israel has only executed once since its formation. Most European countries remain abolitionist despite facing terrorism within their national boundaries, e.g., the UK, France, and Spain.
In fact, it is relevant to note that the UK abolished the death penalty at a time when the Irish Republican Army, a revolutionary military organisation, was particularly active in the country. The same can be seen for fighting crime. The Philippines faces a severe problem of drug trafficking, but has abolished the death penalty. South Africa abolished the death penalty at a time when crime rates in the country were very high.
3.10.3 A country's decision to abolish or retain the death penalty is not necessarily linked to its socioeconomic or development profile; rather, political will and leadership are key. Several developing countries do not use the death penalty. Nepal, Rwanda, Senegal, Solomon Islands, Djibouti, Togo, Haiti, and Guinea-Bissau are all examples of countries ranked under "Low Human Development" in the UNDP Human Development Index (that is, considered less developed than India), which have abolished the death penalty.240
240 See Human Development Index and its components, available at:
http://hdr.undp.org/en/content/table-1-human-development-index-and-itscomponents (last viewed on 20.08.2015).
3.10.4 State practice regarding the death penalty also demonstrates that the road to abolition is not always a function of public opinion. Political leadership has been key to this process. Many states have abolished the death penalty at a time when public opinion may not have necessarily supported this position. Indeed, public opinion in many countries has only gradually reversed over time, changing with subsequent generations, suggesting that it takes time for populations to stop thinking of the penalty as "useful," or realise that it has no linkages with levels of homicide.
For example, in France, public opinion continued to support the death penalty for several years after it was abolished, and it was about two decades after the abolition of the law that opinion began to change. Similarly, in South Africa, a Constitutional Court decision found the death penalty to be unconstitutional at a time when the public supported it, and the decision of the Court was supported by the legislature.
The passage of time has proven these to be wise courses of action. These countries remain abolitionist even today, and have not felt the need to doubt or question their decisions. They have relied on different methods to control crime and sanction individuals. In the UK and France, the political parties who abolished the death penalty in the face of contrary public opinion were in fact re-elected.241
241 In their article, Hood and Hoyle refer to a study on death penalty and public opinion, which found that each year of abolition "lowered the odds that an individual would support the death penalty by 46 per cent", indicating that abolition led by strong political leadership could itself lead to a change in public opinion. Hoyle and Hood, Deterrence and Public Opinion, in Moving Away from the Death Penalty: Arguments, Trends and Perspectives (United Nations, 2014), available at
http://www.ohchr.org/Lists/MeetingsNY/Attachments/52/Moving-Away-from-the-Death-Penalty.pdf (last viewed on 20.08.2015).
3.10.5 The situation today can be contrasted with the global status of the death penalty in 1979-1980, at the time of the Supreme Court's decision in Bachan Singh. The Court had noted that only 18 states had abolished the death penalty for all offences, and 8 more had only retained it for "specific offences committed in time of war."
The Court cited Saudi Arabia, the United States, Israel, China, Argentina, Belgium, France, Japan, Greece, Turkey, Malaysia, Singapore and the USSR (Russia) as examples, Bachan Singh v. State of Punjab, (1982) 3 SCC 24 at para 128 and 129. Several of these countries are abolitionist in law or practice today, including Belgium, France, Greece, and Turkey. Others only retain it for exceptional crimes, such as Argentina and Israel.
3.10.6 There is a clear trend towards abolition in international law and state practice across the globe. International legal norms have evolved to restrict the lawful use of capital punishment in a very narrow variety of cases, and a very limited manner. India continues to sentence individuals to death and execute them, and has also opposed all five General Assembly resolutions on a moratorium. In doing so, India keeps company with a minority of countries who retain the death penalty, and an even smaller number who actually carry out executions, a list that includes China, Iran, Iraq and Saudi Arabia.