Topic
Death Penalty
Level
High School
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22
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11116
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4.9
48

Influence of the United Nations in protecting Human Rights, with regard to the Implementation of the Death Penalty Essay

The UN was formed after World War II, in the year 1945. Initially there were 51 nations that came together to do this. These countries were intent upon preserving international security and peace, and developing amicable relations between nations. Moreover, the nations aimed to achieve better standards of living, human rights and social progress. The UN has a unique international nature and it can intervene in a wide range of issues. It also provides a forum for its Member States to voice their opinion. This is facilitated by the General Assembly, the Security Council, and the other committees and bodies.

Moreover, the influence of the UN is felt all over the world. The UN performs humanitarian assistance, conflict prevention, peacekeeping and peacebuilding. In addition, the UN and its system affect the world and tend to improve it. A large number of issues are dealt with by the UN. Some of these include, environment and refugee protection, sustainable development, disaster relief, counter terrorism, gender equality, human rights, governance, improving food production and the promotion of democracy.

In addition, the international human rights and humanitarian law clearly prohibit torture and cruel, inhuman or degrading treatment or punishment. This prohibition applies to all the states and is independent of their treaty obligations. Several of the international and regional treaties have clearly included this prohibition. The regional systems and the UN have declared that some features of the death penalty cannot be permitted. These aspects have been considered to be cruel, inhuman and degrading treatment or punishment.

Some examples are the manner in which death row inmates are kept in their cells; the torment of being under the never ending threat of execution; and the confidential nature of the imposition of the death penalty. These factors have a tremendous effect upon the condemned person and his family. As a result, the UN Human Rights Committee addressed the states with the death penalty. It asked them to improve the conditions of detention of the individuals on death row.

Such improvements had to comply with the requirements specified in the International Convention on Civil and Political Rights (ICCPR). Furthermore, the UN Human Rights Committee had declared unwarranted delay in informing a convicted person of a stay in execution, as an instance of cruel, inhuman and degrading treatment. Moreover, the UN Human Rights Committee has made a recommendation. This suggests that the condemned and their families are to be informed reasonably and sufficiently in advance regarding the date and time of the execution. Such advance notice, would provide them with sufficient time to prepare for the occurrence.

In this regard, the important organs of the United Nations and their functions are described below.

Functioning of the UN

The principal bodies of the UN are the General Assembly, Security Council, Economic and Social Council, Trusteeship Council, International Court of Justice and Secretariat. Among these the Security Council is responsible for international peace and security. Consequently, the Security Council may conduct a meeting, whenever a threat to international peace and security is perceived.

These six bodies do not have the same size. Some of these bodies have several subsidiary bodies and committees. Furthermore, some of these bodies enjoy a large amount of power, while others do not possess sufficient power. In the context of human rights, some of these bodies concentrate extensively on the issues. At the same time, there are other bodies that have negligible relevance with regard to the promotion and preservation of human rights.

The UN has been provided with a number of powers. These have been described and provided in its Charter. The Charter has provided the UN with four purposes. These are; first, to maintain international peace and security. Second, to develop friendly relations among the nations. Third, to collaborate in solving international problems and to uphold respect for human rights. Fourth, to coordinate the actions of countries. In addition, the Member States of the UN have agreed to obey and implement the Security Council’s decisions. On the other hand, the other organs of the UN simply suggest some action to the Member States. However, the Security Council makes decisions that have to be carried out by the Member States under the Charter.

After 1945, there was a gradual downturn in the values promoted by the UN. This was at its height during the cold war and afterwards. There were many countries that ignored the UN Charter. This charter consisted of several features that could be regarded as corrupt, inefficient or discriminatory. One such instance is provided by the UN Commission on Human Rights.

At the same time there are countries that ignore the UN and its charter. This is despite their being signatories to it. It is important to realise that the UN provides a reliable mechanism to advance the objectives of a nation, such as the US. In this context, weakening the UN and at the same time seeking its intervention is not of any benefit. This is what the US did with regard to Iraq. In the long run, this can prove harmful to US objectives.

In addition, the UN Charter employs the term enforcement from the position of the measures adopted under Chapter VII of the UN Charter. This makes enforcement obtain the character of employment of force. All the same, the term enforcement with regard to human rights, can be understood to include any measure that is aimed at promoting human rights. This approach has the possibility of incorporating recommendations and statements. Nevertheless, it fails to provide criteria for evaluating the performance of the UN.

Finality is a characteristic of the death penalty, and this makes it an unusual form of punishment. As opined in Furman v Georgia, by Justice Potter Stewart, the death penalty is fundamentally different from other types of criminal punishment. This difference is not one of quantity but of quality.

Moreover, the 1948, Universal Declaration of Human Rights declares that every person has the right to life, liberty and the security of their person. Moreover, the 1949, Geneva Convention on the protection of civilians during war has prohibited the execution of people less than 18 years of age. The intention of these international instruments is to bring about the total abolition of the death penalty.

As such, several resolutions were passed by the United Nations (UN) General Assembly (GA). These hoped to urge the international community to abolish the death penalty. As such, there has been a constant progress in the abolition of the death penalty.

The International Criminal Court was created on 18 July 1998 under the Treaty of Rome. It was formed during the creation of the prohibition upon the death penalty. This Court was made responsible for hunting down and prosecuting individuals responsible for crimes against humanity, massacres, genocide, rapes and ethnic purification. The maximum penalty under the Treaty of Rome is imprisonment for life. Such punishment is to be imposed only if the sentenced person’s actions are serious enough to merit such punishment. All the same, the fact remains that the death penalty has not been totally abolished in the world. Several nations, such as Pakistan, China, Iran, Saudi Arabia and the US regularly conduct executions.

However, some of these countries have shown a tendency to execute fewer criminals.

Moreover, the Office of the High Commissioner for Human Rights and other United Nations (UN) bodies functioning in Palestine can recommend the abolition of the death penalty. This can be done, via interactions with the political and security officials of Palestine. Moreover, the High Commissioner for Human Rights and the special rapporteur of the Human Right Council on extra – judicial killings, can talk with the Palestinian authorities about cases where the death penalty comes into play.

In addition, these entities can request reduction of capital punishment to other penalties, retrial of the accused, or urge the President of Palestine to employ his executive power to abstain from endorsing such sentences. Article 409 of the Palestinian Penal Procedures Law 2001 states that authorisation by the Head of the State is essential for carrying out a sentence of capital punishment.

Chapter 2 – Methodology

The main aim of this research work is to analyse effectiveness of the United Nations in protecting human rights relating to implementation of death penalty issues. This work will establish that the mechanisms of the United Nations are not fully effective in securing human rights, with regard to the death penalty.

This research work examines the effectiveness of the United Nations in making nations implement the death penalty without violating human rights. In order to analyse the problem, the function and procedures of the United Nations relating to human rights protection have been examined. In this regard, the functioning of the various organs of the United Nations relating to the implementation of the death penalty has been inspected.

This work is divided in to 5 chapters. The first chapter deals with an introduction and background to the topic. In this chapter, the establishment of the United Nations and its working procedures relating to protecting human rights have been described. The second Chapter deals with the methodology of the research work. Research methods utilised in this work are conceptual and analytical. As such this research work is based on secondary and library based sources. In this context, various academic books, authoritative journals and authentic websites have been consulted. Strictly speaking, secondary sources provide the latest information on a topic.

The third chapter contains the issues relating to the role of United Nations in securing human rights. The fourth chapter deals with the effectiveness of United Nations in addressing human rights violations with respect to the death penalty issues. The fifth chapter deals with the conclusions arrived at on the basis of this research work. In addition, this chapter suggests some recommendations for improving the working procedures of the United Nations in protecting human rights relating to the death penalty.

Chapter 3 – UN Commission on Human Rights

The Economic and Social Council of the UN elects 52 Member States, thereby forming the UN Commission on Human Rights. This Commission initiates studies and fact finding assignments, in addition to organising consultations relating to specific human rights issues. It is vested with the responsibility of initiating and designing human rights conventions and declarations.

Furthermore, the UN Economic and Social Council regulates the intergovernmental organisations. These are dedicated organisations that operate autonomously. They have their own budget, charter and staff. However, they are allied to the UN, via special agreements. These agencies report to the UN Economic and Social Council. In addition, they could be directed to appraise reports pertaining to their area of focus, and which arise from some of the bodies of the UN.

Other UN Bodies and Human Rights

It is the duty of the UN Security Council, which consists of 15 Member States, to arrive at decisions relating to international peace and security. At such times the UN Security Council has the authority to make recommendations and take decisions for action. Some of these actions are providing humanitarian aid, imposing economic sanctions and recommending peacekeeping operations. The administrative wing of the UN is named the Secretariat. It has the task of supervising the programmes and policies formulated by the other organs of the UN. The UN High Commissioner on Human Rights is an organ of the UN Secretariat.

UN Human Rights Council

The primary UN intergovernmental body responsible for human rights is the Human Rights Council. This body owes came into existence with the UNGA resolution 60/251 of 15 March 2006. The Human Rights Council replaced the Commission on Human Rights; and took over most of its systems, responsibilities and mandates. The Commission on Human Rights has been criticised by many people. Such criticism has related to its politicisation and selective functioning.

In addition, some of the Member States had used it to avoid criticism for having violated human rights. In fact, the previous Secretary General of the UN, Kofi Annan had declared that the Commission on Human Rights had lost its credibility. This development had damaged the reputation of the entire UN system. As a consequence, Kofi Annan adopted initiatives to bring about holistic reform to this body.

The UN Human Rights Council and the Commission on Human Rights have a lot of difference. For instance, the former is accountable to the UN General Assembly. The Commission on Human Rights consists of all the members of the UN. On the other hand, the Commission on Human Rights has just 54 members. This is due to its being a subsidiary member of the Economic and Social Council. In addition, the UN Human Rights Council’s status can be reviewed and made a central organ of the UN.

Membership to the UN Human Rights Council is offered to all the Member States. However, selection to the UN Human Rights Council involves a scrutiny of the applicant state’s human rights records, voluntary human rights pledges and commitments. In addition, the UN General Assembly can suspend a Member State’s right of membership in the UN Human Rights Council. This happens when the concerned Member State openly and systematically breaches human rights.

The meetings of the UN Human Rights Council take place more often than those of the previous Commission on Human Rights. The UN Human Rights Council conducts meetings at least once in four months. The total duration of these meetings is for at least ten weeks. In addition, this council holds special sessions at the request of its members. On the other hand, the Commission on Human Rights meets only once a year.

The Secretary General of the UN, Ban Ki – Moon has declared that establishing a global moratorium on the death penalty, would constitute a first step in achieving the abolition of the death penalty across the world. It has also been stated by the UN that capital punishment is incompatible with its objective to uphold the fundamental human rights, worth and dignity of individuals. These observations were made by the Kang, the Deputy High Commissioner for Human Rights, at Geneva.

Consequently, the first moratorium against executions was subjected to a vote in the year 2007 by the UN General Assembly. Another such exercise was carried out in December 2012, during which 111 nations supported the moratorium, 41 opposed it and 34 did not participate in the voting.

The resolution passed at that time called for a progressive limitation on executions and the elimination of such punishment for pregnant women and persons below the age of 18 years. Despite its lack of a legally binding effect, this moratorium on executions has political and moral weight. In this regard, the UN Secretary General has restated that the UN mechanism has consistently and for a long time opposed the imposition of the death penalty. Furthermore, none of the hybrid and international tribunals functioning under the sponsorship of the UN prescribe the death penalty. This is also the case with the International Criminal Court.

It was observed by the UN Secretary General that although 150 countries had either abolished capital punishment or did not practice it, a few of the nations had reinstated executions. The number of individuals executed every year was in the thousands. A large number of these executions were in breach of the international norms, such as due process and the right to a fair trial. In addition, it was emphasised by the Secretary General that there were a wide range of crimes, which could not be regarded as the most serious of crimes, for which the punishment was execution. Furthermore, the evidence employed in such cases was not clear. This had resulted in several instances of miscarriage of justice and wrongful conviction.

Chapter 4 – United Nations and Prohibition of Death Penalty

The international law mandates that a death penalty, on being carried out, should comply entirely with the restrictions described at Article 6 of the International Covenant on Civil and Political Rights (ICCPR). This requires execution to be conducted only for the most serious crimes.

In general, this implies that the death penalty should be applied only to the crime of murder. Consequently, putting individuals to death for offences related to international organised crime that do not involve the taking of life or drug offences is disallowed. Moreover, it is prohibited to impose the death penalty upon individuals who are less than 18 years of age. In addition, it is not allowed to execute pregnant females. The nations that insist upon continuing with the death penalty have to make certain that there is careful regard for the due process assurances. The right to life is breached, when a death sentence is imposed without complying with the provisions of Article 14 of the ICCPR.

In addition, the assistance of a lawyer has to be provided to individuals accused of capital offences. Such assistance has to be made available throughout the proceedings. While an appeal or other recourse is in progress, the death sentence should not be carried out. In addition, the condemned person should be provided with an opportunity to seek clemency or commutation of the death sentence imposed upon him.

However, the principle of non – discrimination has been deliberately ignored in several instances, where the death penalty had been imposed. The less privileged people do not have sufficient access to effective legal representation. As a result, such people are more frequently prosecuted for capital offences and executed. In a large number of instances, the imposition and execution of the death penalty has been determined by the accused’s membership of a minority community. Moreover, there continue to be instances of executing offenders with mental disabilities. This continues, despite the prohibition of such executions by the UN Economic and Social Council.

In addition, the methods of execution permitted are those that cause the least possible mental and physical suffering to the condemned individual. If this is not taken into account, then the execution constitutes breach of freedom from torture, inhuman, cruel or degrading treatment or punishment. Obviously, it would be very difficult to identify a method of execution that would satisfy these criteria. Another disturbing aspect of executions is the duration of detention and living conditions of the individuals confined to the death row. The judiciary has repeatedly stating that executive conditions of mandatory sentences of death are nothing more than interference with judicial discretion to determine the fitting punishment. The seriousness of the death sentence is such that it should not be mandatory. Moreover, executions conducted in secret, are examples inhuman treatment of the family of the executed.

Moreover, an important obligation is imposed upon a nation that has abolished the death penalty. Such countries should not extradite or remove from their jurisdiction, people who are at risk of being sentenced and put to death in the country to which they are to be extradited. Extradition to a nation that executes criminals should be carried out, only after obtaining an assurance from that nation that it would not put the extradited person to death.

The UN High Commissioner for Human Rights had strongly called for the complete abolition of the death penalty. Till such time, executions had to be strictly limited to the most severe cases. In addition, executions were to be carried out only after applying the highest standards of justice.

However, this requirement has failed to deter several nations. Thus, there are a number of countries, which frequently execute offenders after conducting grossly unfair trials. For instance, in the year 2006, several prisoners in Jordan were tortured and the confessions so obtained were presented as evidence for obtaining a death sentence. As such, Sa’ad Bin Sweid and Yasser Fathi Ibrahim Freihat, were put to death after they were sentenced to death in unfair trials. The plea of these men in the court that their confessions had been obtained under torture, was ignored by the court.

Execution of the Innocent

No criminal justice system is above error. As a result, several nations have released prisoners from death row, subsequent to their innocence being established by fresh evidence. However, some people have been executed before such evidence had been discovered.

For example, in the year 2006, Hassan Mohamed Mtepeka was released from death row in Tanzania. He had been condemned to death in the year 2004 for the rape and death of his stepdaughter. The Court of Appeal determined that the conviction had relied to a major extent upon circumstantial evidence. This evidence had failed to establish his guilt without any doubt.

Furthermore, Carl McHargh was released from death row, in Jamaica, subsequent to his acquittal on appeal. In the US, John Ballard was released from death row, subsequent to the reinstatement of executions in 1977 and after the cancellation of his conviction upon appeal. It was stated that the original judge should have dismissed the case, as the evidence produced against John Ballard was not sufficiently strong to establish his guilt.

As such, there have been several instances, wherein official acknowledgement regarding the execution of an innocent person had not been made for decades. For instance, 80 pro – democracy activists in South Korea had been acquitted of charges of treason, by the Seoul Central District Court. This acquittal came three decades after their execution, in the year 1975.

In addition, Saudi Arabia is a major violator of human rights and other fundamental freedoms. In that country, death sentences are imposed and carried out after subjecting individuals to summary and secret trials. The Saudi judiciary ignores the international norms that pertain to trials and the employment of capital punishment.

Moreover, foreign migrant workers from Africa and Asia continue to be executed after secret and summary trials. These people are not informed about what is being stated in the trial. This happens, as the language employed by the Saudi Courts cannot be understood by these people. There have been a large number of instances, in which the convicted persons had not even realised that they had been condemned to death.

Navi Pillay, the UN High Commissioner for Human Rights has been making great efforts to bring about the universal eradication of the death penalty. This has been done under her mandate to support and safeguard the enjoyment and comprehensive fulfilment of all human rights. In the year 2009, Pillay described the reasons for her opposition to the continuance of the death penalty.

She has emphasised that the death penalty could not be justified under any circumstance. The reasons stated by her were that the death penalty opposed the basic character of the right to life. Furthermore, there was every possibility that the innocent could be executed on account of some oversight. Moreover, there was no conclusive evidence that executions had a deterrent effect. In addition, the death penalty possessed the character of revenge, which was undesirable in any civilised punishment.

In addition, the UN General Assembly had passed several resolutions calling for a halt upon the execution of individuals. As a consequence, the Office of the UN High Commissioner for Human Rights has constantly promoted and provided support to Member States, civil society and other stakeholders. This was in the context of establishing a moratorium by the States on the carrying out of the death penalty. The final goal was to abolish the death penalty totally. The UN Commissioner for Human Rights transmits official communications to the concerned authorities and issues public press releases. These releases take up discussions on the death penalty. Furthermore, the Office of the High Commissioner for Human Rights provides technical support to civil society organisations, Member States and other concerned interlocutors, in the area of abolition of the death penalty.

Navi Pillay, as the UN High Commissioner for Human Rights has undertaken several country missions. During these missions, she entered into discussions with the senior level officials in Zimbabwe, South Sudan, Pakistan, Guatemala and Barbados. In her discussions with these officials, she was able to convince them to some extent. This was with respect to the desirability of abolishing the death penalty or imposing a moratorium upon executions.

The evolution of world opinion and position on the death penalty has developed gradually. Several Member States, from the different regions of the world, have conceded that the death penalty had lowered human dignity. It was also acknowledged by these countries that it was essential to abolish it or to place a moratorium upon its use. These interventions were believed to be essential for the progress and continuing development of human rights. The right to life is obviously the most sacred, and this was restated by the UN High Commissioner for Human Rights, during her numerous contemporary country missions. In addition, the Office of the UN High Commissioner for Human Rights mediates at the national level to encourage discussion on the abolition of the death penalty.

The UN Economic and Social Council has asked the member states of the UN that impose the death penalty to do the following. These states should comply with the UN Standard Minimum Rules for the Treatment of Prisoners. This would reduce the suffering of the condemned to the maximum. It has been accepted by many courts and bodies that detention on death row, while waiting to be executed, for long times, can be cruel, inhuman or degrading treatment. At the same time, these courts and bodies have emphasised the right of the condemned to use every applicable judicial process.

Moreover, people with mental disabilities should not be executed. This is the gist of the international standards, which prohibit states from imposing the death penalty upon such people. As such, these standards stress the necessity to reflect upon the specific aspects of the accused. In addition, the prospect of reforming such criminals and ensuring their entry into the mainstream of society has to be always kept in mind. This highlights the importance of social inquiry and psychiatric reports regarding the accused, during the proceedings.

The functioning of the UN Human Rights Council follows the procedures established for UN General Assembly committees, with some necessary changes. Voting in the UN Human Rights Council can be done only by the members. Arrangements, such as the ECOSOC resolution 1996/31 of 25 July 1996 and the practices of the predecessor Commission, form the basis for consultation and participation. Such participation and consultation is with respect to observers, such as the non – member states of the UN Human Rights Council, specialised agencies, national human rights institutions and non – governmental organisations. This allows nations that are not members of the UN Human Rights Council to participate in its discussions. This participation is as observers and co – sponsors of draft resolutions that have been submitted to the Council.

In addition, Inter – governmental organisations, such as the specialised agencies have been permitted to make mediations in the sessions of the UN Human Rights Council. Moreover, the non – governmental organisations with a consultative position are allowed to send observers. These observers can address the public session of the Council. The Council debates are, usually open to the public. However, the debates relating to the violation of human rights are conducted in sessions that are open or closed. The Council, inter alia, in open sessions deliberates upon human rights violations. These violations can take place anywhere, and the Council adopts resolutions and takes decisions with respect to these incidents.

On the other hand, in closed sessions, individual complaints are taken up. These complaints should be with respect to a consistent pattern of deliberate and reliably confirmed violations of human rights and fundamental freedoms. These debates are accomplished in the Working Group on Communications and the Working Group on Situations. Subsequently, the concluding part of the discussion is conducted in the Council. This process is conducted in a confidential manner.

In one instance, the Supreme Court of Canada, in United States v Burns, ruled that assurances had to be obtained from the nation to which an individual was to be extradited. This was with regard to cases involving the use of the death penalty. However, the Supreme Court of Canada held that there was no need for assurances in some instances. This was with events of an exceedingly exceptional nature.

Failure to comply with these requirements, would be equal to breach of Section 7 of the Canadian Charter of Rights and Freedoms. This Charter safeguards an individual’s rights to life, liberty and security. This decision promoted the international preference for discontinuing the death penalty.

Canada does not impose the death penalty for any crime, and this change has been apparent with the ruling in the Kindler case. This trend was adopted by the UN Human Rights Committee in the year 2003. Thus, in Judge v Canada, it was stated by the Human Rights Committee that there was a growing international opinion, which was in favour of abolishing the death penalty.

Moreover, it would be a breach of the right to life, provided by the International Covenant on Civil and Political Rights, for an abolitionist State to place an individual at risk of the death penalty. In the 1990s, extradition had been disallowed if the death penalty to be imposed on the extradited individual would constitute an instance of cruel, inhuman or degrading treatment or punishment.

The terms human rights and fundamental rights have not been defined in the UN Charter. However, the right to equal protection has been mentioned in the Charter, and this is the only substantive human right to be provided with specific reference. This was the gist of Articles 1(3), 13(1) (b) and 55. Another area, in which UN Charter has not provided clarification, relates to the systems for enforcing human rights. In such, cases, the Charter merely requires is a pledge from the nations to uphold human rights.

Nevertheless, every member state of the UN had consented to uphold certain obligations regarding the principal objectives of the organisation. In addition, the Economic, Social and Cultural Council (ECOSOC) was required to provide recommendations for promoting respect and observing human rights and fundamental freedoms for every individual. This was under Article 62(2) of the UN Charter.

The ECOSOC founded the Commission on Human Rights, in order to promote this goal. Afterwards, this Commission on Human Rights became the principal UN organ in the area of human rights. In this manner, the UN Charter had accepted human rights. It had also concluded that the promotion and preservation of human rights were important for the international community.

Nevertheless, the Charter failed to establish a specific regime that was keen to protect human rights. The primary principle that became effective was that of non – intervention in the affairs of the Member States of the UN. Despite the presence of other entities in the international arena, the nations tend to be the primary actors. The procedural capacity of individuals is restricted and the degree of such capacity is decided by the state. Any international instrument relating to human rights is addressed to the states. Moreover, treaties, in general, do not require a contracting state to provide individuals with rights.

However, human rights instruments require states to adopt the measures permitted by their national law to comply with the objectives of those instruments. This requires a state to make its domestic legislation conform to the norms of international human rights. A key problem emerges from this with respect to ensuring compliance in the area of human rights. Although, individuals are provided with rights by the human rights law, the international legal system is focused upon the rights and obligations of states.

A moratorium on the use of the death penalty was adopted by the United Nations General Assembly. This was via resolutions 62/149, 63/168 and 65/206. Despite not being legally binding, they indicate the global trend, which keenly seeks the abolition of capital punishment.

In addition, the United Nations General Assembly resolution 65/206 was adopted in the year 2010. This was with a much greater proportion of the votes, in comparison to the former resolutions. In this resolution, the United Nations General Assembly stressed upon the irreparable and irreversible nature of capital punishment. It also declared that a moratorium on the use of the death penalty contributed to the improvement in human rights and dignity. The United Nations General Assembly also declared that there was no convincing evidence regarding the preventive value of capital punishment.

This third resolution, has addressed the nations that inflict the death penalty. It requires them to uphold the international standards that provide protection for the rights of the criminals awaiting death. These rights have been described in resolution Res 1984/50 of the Economic and Social Council regulation.

Moreover, these nations are required to provide the existing and pertinent information relating to the employment of the death penalty. They are also required to effect a progressive reduction in the death penalty, and reduce the offences that are to be punished with execution.

It has always been stressed by the Council of Europe that democratic societies are strangers to the death penalty. Consequently, it has been vocal in its condemnation of capital punishment, and been at the frontline of the battle against the abolition of the death penalty.

The predilection of the Council of Europe towards the eradication of the death penalty was shown in Protocol No. 6 to the European Convention on Human Rights. This was adopted in April 1983 and resulted from the Parliamentary Assembly’s effort to abolish capital punishment during peacetime. Protocol 13 was adopted in the year 2002, which was a major step, as it called for the eradication of the death sentence regardless of the attendant circumstances. This abolition of the death penalty was applicable to even the acts commissioned during a war.

In a related development, the Council stipulated that membership would be provided to a nation, only if the death penalty was abolished in it. The beneficial effect of this determination has been the absence of any execution in the EU since the year 1997. The capital punishment issue has been regularly monitored by the Parliamentary Assembly.

However, abolition of the death penalty has been opposed by countries with a Muslim majority population. This has been seen in different international forums, such as the United Nations General Assembly. The reason for this opposition is that the abolition of the death is irreconcilable with Islamic law. The Islamic law believes very strongly in putting people to death for a variety of crimes.

In the year 1995, a declaration calling for the removal of the death penalty, was adopted in Tunis. This was during a joint meeting, wherein the participants were the Arab Institute for Human Rights and the Citizens and Parliamentarians’ League for the Abolition of the Death Penalty. This was the sole instance of a Muslim organisation supporting the abolition of capital punishment.

Moreover, International law does not ban executions. However, it restricts the carrying out of death sentences. In some of the countries, where capital punishment is carried out, drug offences invite execution. The UN Human Rights Committee and the UN Special Rapporteur on arbitrary, extrajudicial or summary executions have declared that drug offences cannot be classified as most serious crimes. Hence, international human rights law is infringed if drug offenders are executed.

In addition, several reforms have taken place in the Charter based human rights organisations. This has also happened in the UN Human Rights Council. However, these reforms have not resulted in impartial discussion regarding violation of human rights. The Universal Periodic Review (UPR) of the UN Human Rights Council had asked the various nations to take the general public into their confidence. The latter were to be made participants in collecting and assessing important information. On the other hand, the UN Human Rights Council’s other activities have proved to be nothing more than dramatics. The seriousness of human rights abuses are not dealt with seriously by the diplomats. An offhand attitude is assumed by these diplomats.

Moreover, several standards have been established by the UN and other international organisations. These intend to control and limit executions and finally abolish it forever. International law prohibits the execution of individuals who were less than 18 years at the time of carrying out the crime. In addition, the death penalty is not to be imposed upon pregnant females, nursing mothers, the elderly and the mentally disabled.

As such, the death penalty is to be imposed only for the most serious crimes. The latter refer to intentional killing. The UN Human Rights Committee has declared that the spontaneous and compulsory imposition of the death penalty is a random removal of life. In this context, the UN Special Rapporteur extrajudicial, summary or arbitrary executions declared that the death penalty should not be made mandatory by law.

For instance, in the years 2007 and 2009, the Inter – American Court of Human Rights held that the death sentences imposed in Barbados violated the American Convention on Human Rights. Thus, Article 4(1) prohibits the arbitrary killing of any individual by the state. Article 4(2) of this convention restricts the death penalty to the most serious crimes. The outcome was that the government of Barbados agreed to abolish mandatory death sentences for murder and treason.

Article 8 of the American Convention on Human Rights and Article 14 of the ICCPR state fair trial standards. Article 6 of the ICCPR is violated if a death sentence is imposed without regard for the provisions of the ICCPR. This has been declared by the UN Human Rights Committee. This committee has also stated that legal assistance has to be provided after the arrest of an individual.

Such legal aid has to continue till the conclusion of the case. It has to be provided to the accused in serious crimes. This is all the more necessary for offences that invite the death penalty. If the appointed counsel is incompetent or deliberately damages the defence, or if the authorities prevent such counsel from functioning effectively, then the ICCPR could be infringed.

Certain requirements for imposing the death penalty have been specified by the Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty. The UN Economic and Social Council adopted these on 25 May 1984. These conditions are; first, the death penalty can be imposed only after a final judgment has been made by a competent court. Second, this ruling should be the outcome of a legal process that takes all possible precautions to prevent an unfair trial. Third, these precautions should not be inferior to the ICCPR safeguards described at Article 14. Finally, the accused should be provided with appropriate legal aid, throughout the trial.

In addition, the UN Special Rapporteur on extra judicial, summary or arbitrary executions stated the following regarding capital punishment. The judges and juries in a death penalty case have to possess very high standards of competence, independence, impartiality and objectivity. These qualities have to be with respect to the relevant international legal instruments.

An accused has to be considered innocent, until his guilt has been established beyond reasonable doubt. Every moderating element has to be considered during the criminal proceedings. Moreover, The UN Special Rapporteur on extra judicial, summary or arbitrary executions stated that wrongful executions could not be totally eliminated. Hence, countries with the death penalty had to review the extent of their compliance with international norms. This review was to be done regularly and in an independent manner. The aim was to find out instances of wrongful execution.

Moreover, a person sentenced to death has the right to apply for commutation or pardon of the sentence. This is provided under Article 6(4) of the ICCPR. This Article further states that in all such cases, commutation, pardon or amnesty of the sentence could be allowed.

The number of countries that retain the death penalty is 58. As of the year 2009, around 18 countries have conducted executions. The fact remains that a vast number of executions go unreported. In this context, the Norwegian Foreign Minister Støre has declared that there has been a forceful call upon the states to display greater transparency, with respect to the use of the death penalty. This happened during a Norwegian initiative to end the execution of people.

The UN General Assembly had passed a resolution to this effect. Several states had submitted that they were reducing the number of crimes that attracted the death penalty. Many countries had being discussing the necessity for continuing with executions. At the level of the UN it was noticed that this issue had attracted a considerable amount of controversy. At the same time, there were some nations that contended that the imposition of the death penalty was a domestic issue. These nations stated that the death penalty was their domestic affair and that there was no need to discuss it in the UN.

The Norwegian Foreign Minister Støre emphasised that the death penalty was a human rights issue. He also declared that it was up to the individual nations to halt the practice of executions. Norway had held this opinion regarding the death penalty. It had consistently opposed the imposition of the death penalty.

A protracted struggle against the imposition of the death penalty has been in place. This movement has obtained a measure of success, across the world. As a result, there has been a reduction, in most of the regions, in the imposition of the death penalty. During the previous decades, as many as 50 nations had discarded capital punishment.

In the year 1981, France became a nation that did not practice the death penalty. In the year 2007, France ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights, which was concerned with the abolition of the death penalty.This Protocol has been adopted by the UN in the year 1989. It constitutes a pioneering instrument of international significance that emphasises the importance of abolishing the death penalty. This Protocol declares that such abolition would promote and preserve human dignity and the continuing development of human rights. Furthermore, the Republic of Benin had abolished the death penalty, on 5 July 2012. This was after it had complied with the Optional Protocol.

Around a hundred nations across the world have imposed a moratorium upon the imposition of the death penalty. Several nations have effectively abstained from imposing the death penalty. As such, this trend has been clearly visible for several decades.

There has been a considerable reduction in the imposition of the death penalty. For instance, 97 nations do not impose the death penalty for any crime, whatsoever. Another eight nations have cancelled the death penalty for ordinary crimes and 36 countries have declared a moratorium upon executions. Nevertheless, there are 57 countries and territories that put their criminals to death.

In a distressing aside, around 23 countries had killed some of their criminals, since the year 2011. One of the more recent reports of Amnesty International has disclosed that 646 executions had transpired during the year 2011. The corresponding number of deaths was 527 for the year 2010. This represented an increase in the number of executions. This undesirable increase was in Saudi Arabia, Iran and Iraq, which routinely put their criminals to death. As such, it is very difficult to arrive at the exact number of people who have been executed. This is due to the absence of official statistics in some countries, such as China. The number of sentences has diminished from 2,024 in the year 2010 to 1,923 in the year 2011.

On 18 December 2007, the UN General Assembly adopted resolution 62/149, which called for an international moratorium on imposing capital punishment.

This resolution was passed by 104 Member States of the UN, opposed by 54 countries and there were 29 abstentions. Despite the absence of a binding character, this resolution had been accepted by the majority of the Member States. This lent it with considerable political and moral authority.

This resolution served to make it very clear that the UN was totally committed to the eradication of the death penalty. The UN had called upon its Member States that persisted with executions to protect international safeguards that protected the rights of the individuals condemned to death. In addition, the UN had asked these nations to reduce the number of crimes that were to be punished with execution.

Finally, it exhorted these countries to exercise a moratorium on the carrying out of the death penalty, in order to completely eradicate such punishment. On 18 December 2008, the UN General Assembly adopted another resolution on the death penalty. This resolution restated the content of the previous resolution. This resolution witnessed enhanced support, with 106 Member States in favour, 46 against and 34 abstentions.

The UN High Commissioner for Human Rights has persistently been promoting the abolition of the death penalty across the world. She has been doing this under her mandate to further the realisation and enjoyment of human rights. Some of the reasons stated by her, with regard to her passionate opposition to executions are: first, the fundamental character of the right to life. Second, the very real danger of executing the innocent by mistake or intention. Third, the misrepresentation that the death penalty has a deterrent effect. Finally, the inappropriately vengeful nature of the punishment.

The Office of the High Commissioner for Human Rights repeats that according to the resolutions of the UN General Assembly, relating to the moratorium on executions, it will advocate and provide support. This support will be extended to the Member States, civil society and the other stakeholders. It will pertain to the establishment of a moratorium on executions with the express intent of abolishing it.

The decision of the US Supreme Court in Atkins v Virginia, provided a landmark ruling regarding the limiting of the death penalty. The person concerned was mentally retarded. Previously, the US Supreme Court had held that it was constitutional to execute such offenders. During that incident, the Court had declared that it was not cruel and unusual to execute a mentally retarded person. However, it had instructed that the jury had to consider such punishment on a case to case basis.

In Atkins v Virginia, the Court drew attention to the international opposition to the execution of the mentally retarded. Such executions had caused considerable concern across the world. A resolution was passed at the 1999 meeting of the UN Commission on Human Rights at Geneva. This resolution urged the nations of the world to abstain from executing individuals with a mental disorder.

Some of the nations have strongly favoured the execution of some of their offenders. These countries perceive any attempt at making them abolish capital punishment as a form of cultural imperialism.

Moreover, during the ratification of Protocol No 6 to the European Convention on Human Rights, several of the signatories gave up their right to execute offenders. This was done on a voluntary basis, without any inducement of force.

A number of researchers, such as Quincy Whitaker have demonstrated an important fact. This states that many of the countries consider being forced to discontinue the death penalty a major challenge to their sovereignty. This is with respect to their law enforcement measures. Consequently, these nations believe that these attempts to abolish the death penalty are to be resisted to the maximum extent possible.

Under international law, the death penalty has not been repealed. All the same, the international preference is to avoid its implementation. However, this has not been the case with the US, whose states have shown an increasing tendency towards conducting executions.

Those who oppose the death penalty claim that executions fail to accomplish any valid goal of society. They also claim that there is no moral justification for murder that has been endorsed by the state. These individuals and organisations have referred to data that shows the absence of a deterrent effect in the death penalty. Recidivism among murderers tends to be the lowest. In addition, it has been strongly contended that the infliction of the death penalty tends to be arbitrary and inconsistent. Such imposition is under a legal system that benefits the wealthy to the detriment of the minorities.

In Callins v Collins, Blackmun J of the US Supreme Court made an important observation. He stated that there was no change, even 20 years from the time that the US Supreme Court had directed consistent and fair imposition of the death penalty. He emphasised that executions were being carried out in an arbitrary, discriminatory and erroneous manner. It was his considered opinion that the experiment involving capital punishment had proved to be a failure.

In addition, two international treaties were formed on the basis of the Universal Declaration of Human Rights. These were the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

Between the years 1960 to 2005, with the ratification of the Second Optional Protocol of the International Covenant on Political and Civil Rights by Canada, certain important developments were noticed. These pertained to the standards relating to the abolition of the death penalty. There were several instances, in which such measures had been provisional.

The intervention in Canada to make it an abolitionist nation was an attempt to modernise the nation. In addition, it was also sought to render the criminal justice system more humane. In the year 1976, the Canadian Parliament removed the death penalty from its criminal code. An attempt made in the year 1987 to reinstate this punishment, was defeated. All the same the situation was that the majority of the citizens of Canada were in favour of the death penalty.

In the years 1991 and 2000, cases were brought before the Supreme Court of Canada. These related to the extradition of offenders to the US, where they were to be executed. From the very beginning of the endeavours to eliminate the death penalty from the Criminal Code, a flimsy hold had been maintained by the abolitionist standard.

This standard eventually gained strength due to a combination of several elements. Some of these were the enhancement of the Canadian judiciary’s authority. This took place during the era of the Canadian Charter of Rights and Freedoms; and the introduction of specific standards and laws against the death penalty, at the global level.

There is a clear trend to abolish the death penalty at the international level. Executions, outside China have reduced drastically. From the data provided by the Amnesty International, it is evident that with the exception of China, there have been 500 executions across the world, in the year 2006. It is firmly believed by this organisation that not more than a 1,000 people had been put to death during that year.

There are several regions of the world, wherein people are not executed. For instance, in the African continent, just six nations had put their criminals to death, during the year 2006. In Europe, Belarus has continued to be the sole nation that imposed the death penalty. In the American continent, the death penalty, from the year 2003, had been inflicted only in the US.

The death penalty has rightly been deemed to be a gross violation of an individual’s right to life. This has always been the unshakable position of the Amnesty International. In addition, this entity has regarded the death penalty as a serious breach of an individual’s right not to be subjected to torture or any form of conduct that is cruel, degrading or inhuman.

This stance remains unaffected by the mode of execution. Expanding upon this point of view, the Amnesty International has declared that the issue is not with the method of killing a person, but with the very punishment itself. A major drawback with the death penalty is that the condemned convict is placed in the death row for a lifetime, and in most of the cases, such a person may not be put to death. This constitutes an example of extreme cruelty.

For instance, a court in Jordan executed two individuals in March 2006. These people had declared in court that they had confessed to the crime, due to the torture that they had undergone. The court disregarded their statement, despite undeniable evidence regarding their torture. The inference to be made from this case is that Jordan promotes criminal investigation that is based upon the torture of suspected offenders.

Saudi Arabia goes even further in its abuse of human rights and all norms of decency. In this nation, individuals are subjected to summary and secret trials, where the presiding judge arbitrarily pronounces a sentence of execution. There have been several instances, wherein African migrant workers had been tried in this manner and sentenced to death.

In many instances, it was evident that The United Nations had failed in implementing human rights during executions.

For example, Japan has not been moved by the recommendations of the UN, regarding the death penalty. During the 109th Human Rights Committee session, the Japanese issues to be reviewed were to be considered. On 12 September 2013, Kumagai was executed in Japan. This was after Tokyo had been selected by the International Olympic Committee to host the Olympic Games in 2020.

Kumagai, was 73 years old, when he was executed. He was guilty of just one murder, but the Japanese courts sentenced to death. The Japanese government ignored his advanced age. It also refused to consider the recommendations of the UN Human Rights Committee. These had recommended that elderly convicts were to be treated more humanely. Moreover, the death penalty was to be applied only to the most grievous crimes.

In Defence of Capital Punishment

It is the usual contention of those who support executions that capital punishment is justified. The reason stated is that society is morally obliged to ensure the welfare and safety of its people. A murderer poses a major threat to the safety and welfare of society. Upon executing a murderer, such threat can be eliminated. By putting the murderer to death, it is ensured that further killings are carried out by that person.

An important hypothesis is that the fear of execution prevents murders. Under these circumstances, many innocent lives could be saved by not abolishing the death penalty. However, even if the death penalty does not have a deterrent effect, a murderer would have been put to death.

Obviously, there is every justification to presume that the death penalty has a deterrent effect. Furthermore, protecting the life of the innocent, by assuming that the death penalty has a deterrent effect, is in the interests of the general public.

On the other hand, presuming that the death penalty has no deterrent effect, and therefore exposing the populace to this grave risk is not preferable. It is better to execute a murderer and thereby prevent further harm to society. Any risk to be experienced, should be undertaken by the criminal and not the innocent public.

The UN Safeguards Guaranteeing Protection to the Rights of Those Facing the Death Penalty, has stipulated certain minimum protections. One of these is transparency in using the death penalty. This safeguard is essential for supervising and ensuring respect for the other limitations established by the international human rights norms and law. Information regarding the use of capital punishment tends to be very little, which is a major hindrance to the abolitionist movement.

The opinion of the international community is that the death penalty is irrelevant in this enlightened age. It has also been deemed to be inappropriate under the provisions of the international law. Thus, there has been a very strong movement, at the international level, to abolish the death penalty. At the time of the formation of the United Nations in the year 1945, the number of nations that had abolished the death penalty for all crimes was just eight.

As many as six of these nations belong to Central and South America. These countries have persisted in their abolition of the death penalty. A considerable amount of progress in the abolition of the death penalty at the global level was noticed in the year 2010. However, most of the nations that had retained the death penalty option, continued to execute criminals in gross violation of the international human rights law and norms. These trends have been depicted in the histograms appended below.

The restrictions and precautions to be undertaken while executing a criminal have been provided under Article 6 of the International Covenant on Civil and Political Rights. Specifically, it limits the employment of the death penalty to crimes that have extremely grave consequence. Even in such instances, the death penalty has to be imposed as an exceptional measure.

As many as a hundred treaties relating to human rights, have been adopted at the global and regional levels. However, the absence of a proper supervisory mechanism for enforcing their provisions has reduced their effectiveness. In addition, most of the nations have ratified some treaty or the other. Nevertheless, human rights law continues to be violated frequently.

Chapter 5 – Conclusions & Recommendations

In the realm of criminal justice, the death penalty has emerged as a highly controversial subject. The number of nations that impose the death penalty has gradually decreased. Such countries are less than half of the total number of countries of the world. Some nations continue to retain the death penalty in their legal system, although they do not execute anyone.

The supporters of capital punishment have argued that it is the duty of society to promote practices that result in the maximum balance of good with regard to evil. One such measure is that of capital punishment. Such punishment can prevent individuals from indulging in violent crime, thereby benefitting society.

Those who support capital punishment argue that justice requires the individuals convicted of heinous crimes to be put to death. Justice ensures equal treatment for all the people. Consequently, it is great injustice when a criminal intentionally inflicts greater harm upon others than he has to undergo.

When the loss imposed upon a criminal is less than what that person had inflicted upon the victim, then society would be behaving in a partial manner towards the criminal. It is the requirement of justice that the criminal should be subjected to losses that are equivalent to those inflicted upon the victim. Therefore, by putting the murderer to death, justice is provided to all the concerned parties.

However, there is no necessity to execute the murderer, in order to safeguard the public from further murderous attacks. Incarcerating the murderer for life, ensures that he cannot kill others. Hence, it is not necessary to impose the death penalty. It would be sufficient to imprison the murder till he dies of old age or disease. Justice does not ask society to execute the murderer. All that it requires is that the most serious of crimes receive the severest punishment permitted by the moral principles of society.

Many nations have surrendered their sovereignty, with respect to the issue of capital punishment. This has been on the basis of international treaties and their constitution. Once can conclude from these developments that the abolition of the death penalty is intended to be on a permanent basis. With the passage of time, the demand for capital punishment decreases. Such punishment becomes culturally unacceptable, as it relates to uncivilised times.

The uniqueness of the death penalty stems from its irreversibility. In addition, capital punishment discards the notion of rehabilitation of a convict. This is a basic goal of criminal justice. Furthermore, execution totally renounces everything that is contained in the idea of humanity.

Some basic protections have been described by the UN Safeguards Guaranteeing Protection to the Rights of Those Facing the Death Penalty. One of these relates to transparency in inflicting the death penalty. This protection is necessary for supervising and ensuring respect for the other limitations established by the international human rights norms and law. Moreover, such protection attempts to initiate debate calling for the eradication of capital punishment. The small of information available regarding the infliction of capital punishment, is a major impediment for the abolitionist movement.

Article 6 of the International Covenant on Civil and Political Rights, describes the restrictions and precautions to be taken at the time of putting a criminal to death. This Article stresses limiting executions to crimes that have extremely grave consequence. Even in such instances, the death penalty has to be imposed as an exceptional measure.

Despite these guidelines, some nations have executed people for offences such as economic crimes, apostasy, sorcery or sexual relations between consenting adults. Another disturbing feature is the infliction of the death penalty for drug related offences. Such executions have taken place in several nations, including China, Egypt, Saudi Arabia and the United Arab Emirates

It has been strongly declared by the UN High Commissioner for Human Rights that there should be no executions at all. Till such time as this goal is not achieved, the UN states that execution has to be performed, only after having applied the highest standards of justice. The reality is that several nations impose the death penalty after clearly unfair trials. One of the major offenders, in this regard, is Jordan. This nation routinely executes individuals on the basis of convictions obtained on the basis of confessions obtained under torture.

The human rights instruments require nations to adopt the measures permitted by their national law. In addition, these countries have to comply with the aims of such instruments. Obviously, countries have to ensure that their domestic legislation complies with the international human rights norms. Ensuring such compliance is a critical issue. Although, individuals have been empowered by the human rights law, the international legal system primarily concentrates upon the obligations and rights of the states.

Several scholars have pointed out the possibility of a very great danger. This relates to nations that had participated in an international covenant to abolish the death penalty. These countries, under certain circumstances, could reintroduce executions. Such events had been recently seen in Europe, when Poland attempted to reinstate the death penalty.

Consequently, it is essential to restate and reaffirm, on a persistent basis, the human rights contention against the use of capital punishment. The US provides an extremely disquieting example of this inclination of nations. Several of the States of the Union, as well as some countries have reintroduced the death penalty, under some reason or the other.

This research work has established that the various human rights instruments have not been complied with in the national law. Consequently, the implementation of human rights has not been totally effective. A major cause is the self – regulation practiced by the individual nations. As such, many countries establish the norms for the death penalty according to their convenience. Consequently, they do not follow the safeguards provided by the UN, in implementing death penalty procedures. The above discussion and decided case law prove this contention. Thus, the UN attempt to eliminate the death penalty has been obstructed at every step. As such, there are several nations that routinely execute some of their criminals. These executions are carried out without considering the urgings of the UN and the different international treaties that call for the abolition of the death penalty.

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Influence of the United Nations in protecting Human Rights, with regard to the Implementation of the Death Penalty. (March 21, 2021).
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