It is still necessary to act for the abolition of the death penalty
|Publisher||Council of Europe: Commissioner for Human Rights|
|Publication Date||5 October 2009|
|Other Languages / Attachments||French | Russian|
|Cite as||Council of Europe: Commissioner for Human Rights, It is still necessary to act for the abolition of the death penalty, 5 October 2009, available at: http://www.refworld.org/docid/4adc7ccd2.html [accessed 27 May 2016]|
|Comments||Also available at the Commissioner's website at www.commissioner.coe.int.|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
Step by step the death penalty is being abolished. Most countries of the world have now stopped using this cruel, inhuman and degrading punishment: 94 states have decided on total abolition, 10 have abolished the penalty for all ordinary crimes and 35 others have not executed anyone for more than ten years. Europe is nowadays close to being a death penalty free zone. However, the abolitionist cause is not yet won.
The most populated countries in the world retain the death penalty: China, India, the United States and Indonesia. This means that the majority of the world's people live in countries which continue to practice execution as punishment. In election campaigns in the United States, this is a taboo issue, and even the more progressive candidates refrain from raising it for fear of a backlash.
Politicians have problems in relating to public opinion on this issue also in other countries. The Russian Federation gave an undertaking when joining the Council of Europe 13 years ago to do away with the penalty. A moratorium was introduced but the Duma does not appear to be ready yet for a de jure abolition.
After the monstrous terrorist attack against the school in Beslan in September 2004, there were strong emotions in favour of executing the sole attacker who survived the disaster. However, the judicial authorities in Russia were loyal to the moratorium decision also in this extreme situation; the death sentence was transformed into life imprisonment.
Surveys of public opinion about the death penalty have usually shown a majority to be in favour of retaining this punishment. This has been the case particularly when a brutal and widely publicised murder has taken place.
However, opinion polls on this issue are not easy to interpret. There is a wide difference between asking for a gut reaction to brutal crime and soliciting a considered opinion about the ethics and principles relating to legalised State killing.
It is significant that there have been no widely-based demands for the re-introduction of the death penalty in European countries. Any such proposals are not coming from larger political parties.
Still, I believe it is important to present again the very strong arguments against killing as a judicial sanction. This is a debate which will go on and younger generations should be able to benefit from our past experiences.
It can be convincingly argued that the death penalty is ineffective. It has not had the intended deterrent effect. The crime rate is not lower in countries which have retained the penalty and has not gone up where it has been abolished. If anything, the trend is the opposite.
What is demonstrated, however, is the real risk of executing an innocent person. No system of justice is infallible, judges are human beings and mistakes are made in the court room. When the convicted person is executed, it is too late to correct the mistake. There have been a number of such cases some of them revealed afterwards through new DNA techniques - and there are no guarantees that they will not occur in the future.
It has also been demonstrated that the death penalty regime has a clear tendency to discriminate against the poor and against minorities. Privileged people with contacts run much less risk of such punishment than others who have committed the same crime. The greatest risk is run by those who are marginalised; they tend to be at a disadvantage in the judicial process also in death penalty cases.
These arguments are strong. However, it is not only a question of effective crime prevention, judicial certainty or prevention of discrimination; it is about the essence of human rights.
The Universal Declaration states that no one shall be subject to torture or to cruel, inhuman and degrading treatment or punishment. There have been attempts to find means of executing with little pain in order to make the process more "humane". This has failed; there have been recent examples of prolonged suffering in the electric chair or when a person is injected with poison. Even if this could be avoided, it does not reduce the psychological pain when waiting for the execution. The death penalty is cruel, inhuman and degrading and will always be so.
The key argument against the death penalty is that it violates the right to life. State killing is indeed the ultimate denial of human rights. That is why it is so essential that we continue to act for abolition.
The Council of Europe has been in the forefront in this effort. All member states have ratified Protocol 6 of the European Convention concerning abolition in peace time and the majority has also agreed to be bound by Protocol 13 regarding abolition in all circumstances (including in situations of war). Those remaining states should join.1
It should also be made clear that Belarus can only aspire to membership or even status as observer after it has abolished the death penalty. Governments in the United States and Japan should be reminded that their status as observer is questioned because of their position on this issue.
In the meantime the successful diplomatic initiatives in the United Nations should continue. A resolution was adopted with broad majority in the General Assembly in 2007 which recommended a global moratorium on the use of the death penalty. A similar resolution was agreed in 2008, again stressing that the moratorium should be established "with a view to abolishing the death penalty".2
Our position on the death penalty indicates the kind of society we want to build. When the State itself kills a human being under its jurisdiction, it sends a message: it legitimises extreme violence. I am convinced that the death penalty has a brutalising effect in society. There is an element of "an eye for an eye" in each execution.
A civilised society should expose the fallacy behind the idea that the State can kill someone to make the point that killing is wrong.
2. The vote in the Assembly in 2007 (A/62/PV.76) was 104 for, 54 against and 29 abstentions. In 2008 (A/63/PV.70) the result was 106 for, 46 against and 34 abstentions. The text of the resolutions can be found on www.un.org (click resolutions).