The Death Penalty and the Absolute Prohibition of Torture and Cruel

Human Rights Brief Human Rights Brief

Volume 20 Issue 1 Article 1

2012

The Death Penalty and the Absolute Prohibition of Torture and The Death Penalty and the Absolute Prohibition of Torture and

Cruel, Inhuman, and Degrading Treatment or Punishment Cruel, Inhuman, and Degrading Treatment or Punishment

Juan E. Méndez

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The Death Penalty and the Absolute Prohibition of

Torture and Cruel, Inhuman, and Degrading Treatment or

Punishment

by Juan E. Méndez*

IntroductIon

s the United Nations Special Rapporteur on Torture

and other Cruel, Inhuman, and Degrading Treatment

or Punishment, I have the responsibility every year to

select two emerging issues that contribute substantially to the

debate on the prohibition of torture. The conclusions of these

studies, along with my recommendations to States, are included

in thematic reports. One of these reports is presented in March

before the Human Rights Council, and another in October before

the UN General Assembly. My most recent thematic report,

presented in October 2012 to the General Assembly, explores

the death penalty as it relates to the international prohibition of

torture and cruel, inhuman, and degrading treatment (CIDT).

To date, the death penalty has generally been treated under

the international standards and regulations governing the right

to life, and in accordance with Article 6 of the International

Covenant on Civil and Political Rights (the Covenant); under

certain circumstances, it has been considered a lawful sanction

under international law. International law decidedly encourages

abolition of the death penalty but does not require it. There

is evidence, however, of an evolving standard within regional

and local jurisprudence and state practice to frame the debate

about the legality of the death penalty within the context of the

fundamental concepts of human dignity and the prohibition of

torture and CIDT. Regional and domestic courts have increas-

ingly held that the death penalty, both as a general practice

and through the specific methods of implementation and other

surrounding circumstances, can amount to CIDT or even torture.

I therefore believe that further

investigation into this evolving

standard is needed in order to

reexamine the legality of the

death penalty under interna-

tional law, and to determine its

implications for the global trend

towards abolition.

Although it may still be

con sidered that the death pen-

alty is not per se a violation of

international law, my research

suggests that international

standards and practices are in

fact moving in that direction.

The ability of States to impose

the death penalty without vio-

lating the prohibition of torture

and CIDT is becoming increasingly restricted. Taking this into

account, I have called upon all States to consider whether the use

of the death penalty, as applied in the real world today, fails to

respect the inherent dignity of the human person, causes severe

mental and physical pain or suffering, and constitutes a violation

of the prohibition of torture or CIDT.

overvIew of the death Penalty and the ProhIbItIon

of torture and cIdt

Article 6 of the Covenant protects the right to life but allows

the use of the death penalty under specific conditions. Among

these conditions, the death penalty “may be imposed only for

the most serious crimes,” and must be in accordance with both

the law in force at the time of the commission of the crime and

the provisions of the Covenant.

Furthermore, the death penalty

may only be imposed “pursuant to a final judgment rendered by

a competent court” and may not be carried out against pregnant

women or invoked for crimes committed by persons below the

age of eighteen.

The Covenant also notes that Article 6 may not

be invoked to prevent or delay the abolition of the death penalty

by States Parties.

Article 7 of the Covenant, however, expressly prohibits the use

of torture or cruel, inhuman, or degrading treatment or punish-

ment.

Under Article 1.1 of the Convention against Torture (CAT),

torture is defined as “any act by which severe pain or suffering,

whether physical or mental, is intentionally inflicted on a person,”

Juan E. Méndez, Courtesy

Washington College of Law

* Juan E. Méndez was appointed UN Special Rapporteur on Torture

and Other Cruel, Inhuman and Degrading Treatment or Punishment

on October 6, 2010, and started his three-year mandate on November

1, 2010. He is a Visiting Professor of Law at the American University

Washington College of Law and the author of several publications,

including the recent book written with Marjory Wentworth, Taking

A Stand: The Evolution of Human Rights, (2011). In 2009 and 2010

he was the Special Advisor on Prevention to the Prosecutor of the

International Criminal Court. He is also Co-Chair of the Human

Rights Institute of the International Bar Association. Until May 2009

he was the President of the International Center for Transnational

Justice (ICTJ) and in the summer of 2009 he was a Scholar-in-

Residence at the Ford Foundation in New York. Concurrent with his

duties at the ICTJ, the Honorable Kofi Annan named Prof. Méndez his

Special Advisor on the Prevention of Genocide, a task he performed

from 2004 to 2007.

Méndez: The Death Penalty and the Absolute Prohibition of Torture and Cru

by, or with the instigation or consent of a public official or person

acting in an official capacity, so as to intimidate, punish, or obtain

information from the person, among other motives.

Article 16.1

of the CAT prohibits other acts

of cruel, inhuman, and degrad-

ing treatment (CIDT) committed

by, or with the instigation or

consent of public officials, that

cause pain and suffering but do

not reach the level of severity of

torture nor carry the same motive

requirements.

Under Article 1.1

of the CAT, however, the defini-

tion of torture does not include

“pain or suffering arising only

from, inherent in or incidental to

lawful sanctions.”

Some States

and other international actors argue that, similar to Article 6 of

the Covenant, Article 1.1 of the CAT provides an exception for the

death penalty when conducted in accordance with the laws of the

State imposing the sanctions.

As emphasized by various international judicial bodies,

however, this interpretation may change over time.

The proper

understanding of Article 1.1 of the CAT should be that the “law-

ful sanctions” exception refers to sanctions that are lawful under

both national and international law, and that practices initially

considered lawful under domestic law may still violate Article

1 if they constitute violations of international human rights law.

The prohibition of corporal punishment offers an example of

such an evolving standard. Once considered to be a lawful form

of sanction, numerous decisions by treaty bodies and regional

and domestic courts have held that various forms of corporal

punishment violate Article 1 of the CAT. It is now widely

accepted that corporal punishment amounts per se to CIDT or

torture, and no longer qualifies as a “lawful sanction.”

actual PractIces of caPItal PunIshment

Aside from the issue of whether capital punishment consti-

tutes a per se violation of the prohibition of torture and CIDT,

specific methods of execution and other circumstances related to

the implementation of the death penalty, including the so-called

“death row phenomenon,” often constitute violations in and of

themselves. Evolving state practice and international opinion,

including responses to new developments in forensic science,

highlight the extreme difficulty of implementing the death

penalty without violating the prohibition of torture and CIDT.

Several methods of execution have been explicitly deemed

violations of the prohibition of torture and CIDT by interna-

tional or domestic judicial bodies and have been prohibited by

a number of States retaining the death penalty. The European

Court of Human Rights has held that death by stoning consti-

tutes torture,

and the United Nations Commission on Human

Rights described stoning as a particularly cruel and inhuman

means of execution.

Similarly, the Human Rights Committee

has held that execution by gas asphyxiation constitutes CIDT,

pointing to the length of time that this method takes to kill a

person and the availability of other, less cruel methods.

The

Committee refrained from deciding what other specific methods

of execution might constitute torture or CIDT, holding instead that

the death penalty, in all cases, “must be carried out in such a way

as to cause the least possible physical and mental suffering.”

It has been argued that

various other methods of

execution constitute CIDT

or torture, although there has

not been a clear consensus

in international opinion and

practice. Such has been the

case of execution by hang-

ing,

which some interna-

tional and domestic judicial

bodies have indicated may

constitute CIDT or torture.

Similarly, the Human Rights

Committee decided in 1994 that lethal injection did not amount

to torture or CIDT and has yet to review its decision despite the

emergence of new forensic evidence that indicates otherwise.

The fact that a number of execution methods have been

deemed to constitute torture or CIDT, together with a growing

trend to review all methods of execution for their potential to

cause severe pain and suffering, highlights the increasing dif-

ficulty with which a state may impose the death penalty without

violating international law.

The “death row phenomenon” is a relatively new concept

that has emerged within the context of the implementation of

the death penalty and the prohibition of torture and CIDT. The

phenomenon refers to a combination of circumstances that pro-

duce severe mental trauma and physical suffering in prisoners

serving death row sentences, including prolonged periods wait-

ing for uncertain outcomes, solitary confinement, poor prison

conditions, and lack of educational and recreational activities.

Courtesy NixBC

Several methods of execution have

been explicitly deemed violations of

the prohibition of torture and CIDT by

international or domestic judicial bodies

and have been prohibited by a number of

States retaining the death penalty.

Human Rights Brief, Vol. 20, Iss. 1 [2012], Art. 1

The European Court of Human Rights has held that prolonged

periods of time spent on death row awaiting execution violate

the prohibition of CIDT.

This decision, however, was based not

only on the length of time spent on death row, but also on the

personal circumstances of the inmate, including age and mental

state.

The Inter-American Court of Human Rights and Inter-

American Commission on Human Rights have similarly held that

prison conditions, together with the anxiety and psychological

suffering caused by prolonged periods on death row, constitute

a violation of the prohibition of torture and CIDT.

the death Penalty as a vIolatIon Per Se

In certain cases, international law expressly considers the

death penalty to be a violation per se of the prohibition of torture

or CIDT. These standards hold that executions of persons belong-

ing to certain groups, such as juveniles,

persons with mental

disabilities,

pregnant women, elderly persons, and persons sen-

tenced after an unfair trial,

are

considered particularly cruel and

inhuman, regardless of the spe-

cific methods of implementation

or other attendant circumstances.

Although international law

does not attribute a different value

to the right to life of these particu-

lar groups, it holds that the impo-

sition of the death penalty in such

cases per se constitutes CIDT.

These standards are based on the

established belief that the execu-

tion of such persons is inher-

ently cruel. The prohibition on

the execution of juveniles is also

considered a jus cogens norm,

an imperative rule that binds all

States.

Similarly, an increasing

number of regional and domes-

tic courts, including the Inter-

American Court of Human Rights

and the United States Supreme Court, have held that the manda-

tory death penalty, where judges have no discretion to consider

aggravating or mitigating circumstances with respect to the crime

or the offender, violates due process and amounts to CIDT.

International standards holding the death penalty in certain

cases to constitute CIDT, as well as the regulation of specific

methods of execution and other surrounding circumstances,

highlight the difficulty with which States may implement the

death penalty without violating the prohibition of torture or

CIDT. Concurrently, these standards and practices also illustrate

a developing global trend to reconsider capital punishment in all

cases as a violation per se of the prohibition of torture or CIDT.

the PossIble emergence of a customary norm

The prohibition of torture is a non-derogable customary

and jus cogens norm that no State is allowed to ignore. The

Statute of the International Court of Justice defines customary

international law in Article 38(1)(b) as “evidence of a general

practice accepted as law.” This is usually determined through

state practice applied under a sense of legal obligation or opinio

juris. Evidence of state practice and opinio juris can be found

in the signing and ratification of treaties, policy statements, and

the votes and resolutions of political decision-making bodies.

The growing trend toward the abolition of the death penalty

as imposed on certain individuals, and the regulation of the

particular methods of implementation, reflect the irreconcilable

conflict between the lawful imposition of the sanction and the

prohibition of torture or CIDT under international law. A report

presented in July 2012 by the UN Secretary-General on the

death penalty evidences and highlights this trend.

The report

states that approximately 150 of the 193 Member States of the

UN have abolished the death penalty for all crimes and that in

those States that retain it there is an observable trend among

many of them to restrict its use or to call for a moratorium

on executions.

Another document that pro-

vides evidence of this trend and, at the same time,

constitutes a reflection of the

international movement toward

abolition is the 2011 UN General

Assembly Resolution calling for a

moratorium on the use of the death

penalty with a view to achieve its

abolition.

In August 2012 the

UN Secretary-General reported to

the UN General Assembly on the

developments of the implementa-

tion of that resolution and noted

that several States had either

abolished the death penalty, intro-

duced amendments to abolish it,

stopped its application for certain

crimes, or had adopted a morato-

rium on the executions.

Yet, the conflict between the

application of the death penalty

and the prohibition of torture

and CIDT is most evident in the

growing number of regional and domestic opinions and deci-

sions that have held the death penalty in all cases to constitute

CIDT or even torture, regardless of the methods or circum-

stances of implementation, or the particular individuals upon

whom it is imposed.

The European Court of Human Rights,

for example, has held that the death penalty constitutes CIDT or

even torture, citing various resolutions of the European Human

Rights System that call for the abolition of the death penalty,

and stating that the definition of torture must evolve with

democratic society’s understanding of the term.

Similarly, the

African Commission on Human and Peoples’ Rights has consis-

tently encouraged the abolition of the death penalty in Africa,

expressing concerns that executions will constitute a violation

of the provisions of the African Charter on Human and Peoples’

Rights (African Charter), specifically Article 4, which states that

human beings are inviolable, with every human being entitled to

respect for his life and the integrity of his person, and Article

5, which guarantees the right to respect of the dignity inherent

in a human being. In its resolutions, the African Commission

urged States Parties that retain the death penalty to consider

[T]he conflict between the

application of the death penalty and

the prohibition of torture and CIDT is

most evident in the growing number

of regional and domestic opinions

and decisions that have held the death

penalty in all cases to constitute

CIDT or even torture, regardless

of the methods or circumstances of

implementation, or the particular

individuals upon which it is imposed.

Méndez: The Death Penalty and the Absolute Prohibition of Torture and Cru

establishing a moratorium on executions, with a view to abolish-

ing this practice.

In Gregg v. Georgia

(1976),

U.S. Supreme Court Justice

William J. Brennan argued in his dissenting opinion in the case

that allowed for reinstatement or the death penalty that it is a

moral principle that “the State, even as it punishes, must treat its

citizens in a manner consistent with their intrinsic worth as human

beings—a punishment must not be so severe as to be degrading

to human dignity.” Similarly, a significant number of domes-

tic courts have held that

the death penalty per se

violates the prohibition

of torture and CIDT,

including the South

African Constitutional

Court,

the Canadian

Supreme Court,

and

the Constitutional Courts

of Albania, Hungary,

Lithuania, and Ukraine.

These decisions are con-

sistent with the abolition

of the death penalty in a

number of U.S. states based on the justification that the death

penalty itself constitutes an extreme form of physical and psy-

chological suffering, thereby violating the prohibition of torture

and CIDT.

It can be said, therefore, that there is an evolving standard in

international law to consider the death penalty in all cases as a

violation per se of the prohibition of torture and CIDT. Although

my report does not aim to determine the existence of such a cus-

tomary norm, I firmly believe that a customary norm prohibiting

the death penalty under all circumstances is at least in the pro-

cess of formation. In the exchange before the General Assembly

on October 23, 2012, I advocated the creation of a special rap-

porteurship within the United Nations on capital punishment

that would undertake, among other things, a broad consultation

with experts to determine the existence of such customary norm

or the status of its development.

conclusIons

The report examines the growing trend in international law

to frame the debate about the legality of the death penalty within

the context of the prohibition of torture and CIDT. I argue that a

customary norm considering the death penalty to be a violation

per se, if not already established, is currently in the process of

development.

Even if this norm has

not yet been established,

I argue that the rigor-

ous conditions applied

to the imposition of the

death penalty under

international law make

retention of this punish-

ment by states costly

and impractical. These

regulations include strict

due process guarantees,

restrictions on the specific methods of execution, prevention of

the “death row phenomenon” and other related circumstances,

and the prohibition on the execution of certain individuals. Even

with such conditions in place, however, states cannot guarantee

that the prohibition of torture will not be violated in each case.

I believe it is necessary for the international community to

discuss this issue further and for states to reconsider whether the

death penalty per se fails to respect the inherent dignity of the

human person and violates the prohibition of torture or CIDT.

I have also called on all states currently employing the death

penalty to strictly observe the standards and conditions imposed

by Article 7 of the Covenant and Articles 1 and 16 of the CAT

in regards to the particular methods of implementation of execu-

tion and other related circumstances.

U.S. Supreme Court Justice William J. Brennan

argued that it is a moral principle that “the State,

even as it punishes, must treat its citizens in a

manner consistent with their intrinsic worth as

human beings—a punishment must not be so

severe as to be degrading to human dignity.”

Endnotes

International Covenant on Civil and Political Rights, art. 6, para.

2, Dec. 16, 1966, 6 ILM 638, 993 U.N.T.S. 3.

Id. art. 6, para 5.

Id. art. 7.

Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment art. 1, para. 1, G.A. Res.

39/46, 39 U.N. GAOR Supp. (No. 51), U.N. Doc. A/19/51 (1984),

entered into force June 26, 1987.

Id. art. 16, para. 1.

Id. art. 1, para. 1.

See Special Rapporteur on torture and other cruel, inhuman or

degrading treatment or punishment, Promotion and Protection of

all Human Rights, Civil, Political, Economic, Social and Cultural

Rights, Including the Right to Development, sec. 3 The Death

Penalty in the Light of the Prohibition of Cruel, Inhuman and

Degrading Punishment, U.N. Doc. A/HRC/10/44 (Jan. 14, 2009)

(by Manfred Nowak).

Nigel S. Rodley, Integrity of the Person, in InternatIonal

Human rIgHts law (Oxford University Press ed., 2000).

98 Eur. Ct. H.R. at 8 (2001).

Human Rights Council Res. 2003/67, Question of the Death

Penalty, E/CN.4/RES/2003/67 at ¶ 4(i) (Apr. 24, 2003); Human

Rights Council Res. 2004/67, Question of the Death Penalty, E/

CN.4/RES/2004/67 at ¶ 4(i) (Apr. 21 2004); Human Rights Council

Res. 2005/59, Question of the Death Penalty, E/CN.4/RES/2005/59

at ¶ 7(i), 4(h) (Apr. 20 2005).

H.R. Comm., Chitat Ng v. Canada, Comm. No. 469/1991, 49th

Sess., U.N. Doc. CCPR/C/49/D/469/1991 at ¶ 16.4 (Nov. 5 1993).

Id. at ¶16.2

See Aitken v. Jamaica, Merits, Reparations, and Costs, Inter-Am.

Ct. H.R. (ser. C) No. 58/02, ¶ 138 (Oct. 21, 2002).

See In re Ramadan, Application for Leave to Intervene as Amicus

Curiae of United Nations High Commissioner for Human Rights

(2007); Republic v. Mbushuu, High Court of Tanzania (Jun. 22 1994).

E.g., Cox v. Canada, Communication No. 539/1993, U.N.

Doc. CCPR/C/52/D/539/19930 (1994); e.g. Zimmers et al., Lethal

Injection for Execution: Chemical Asphyxiation (2007).

Human Rights Brief, Vol. 20, Iss. 1 [2012], Art. 1

Soering v. UK, 161 Eur. Ct. H.R. (ser. A) (1989).

Id.

See Rep. Inter-Am. Ct. H.R. no. 55/02, Merits, Case 11.765,

Paul Lallion, Grenada, October 21, 2002 paras. 86-90; Rep. No.

58/02, Case 12.275, Merits, Denton Aitken, Jamaica, October 21,

2002, paras. 133-134; Hilaire v. Trinidad and Tobago, Inter-Am. Ct.

H.R, Series C, No. 94, paras.167,168 (Jun. 21 2002).

For the case of Juveniles see Domingues v. United States, Rep.

Inter-Am. Ct. H.R, No. 62/02, paras. 84-87 (2002) and Roper v.

Simmons, 543 U.S. 551 (2005).

See UN Comm. H.R., E/CN.4/RES/2003/67; Atkins v. Virginia,

536 U.S. 304 (2002).

See Baboheram-Adhin v. Suriname, Comms. Nos. 148-154/1983

(1985); Pratt v. Jamaica, Comms Nos. 210 & 225 (1986) (1987);

Bader v. Sweden, Eur. Ct. H.R. Application no, 13284/04 (2005).

Domingues v. United States, Rep. Inter-Am. Ct. H.R, No. 62/02,

para. 84 (2002).

Woodson v. North Carolina 428 U.S. 280 (1976); Hilaire v.

Trinidad and Tobago, Inter-Am. Ct. H.R, Series C, No. 94, paras.

167,168 (2002).

Report of the Secretary-General, Questions of the Death Penalty,

Human Rights Council Twenty First Session, A/HRC/21/29 July 2,

2012, para.60.

Id. at paras. 6-16.

U.N. G.A. Res. A/RES/65/206 Marc 28, 2011 para.3.d.

U.N. Secretary-General, Moratorium on the Use of the Death

Penalty, A/67/226, paras. 6-10 (2012).

Supra note 10; see also Manfred Nowak, Is the Death Penalty

an Inhuman Punishment? In

JurIsprudence of Human rIgHts law

– a

comparatIve and InterpretIve approacH, eds. Turku, Finland:

Institute for Human Rights, Abo Akademi Univ. (2000).

Al-Saadoon v. UK, application No. 61498/08, para. 115 (2010).

A.C.H.P.R. Res. 42(XXVI) 99 and A.C.H.P.R.

Res.136(XXXXIIII)08.

Gregg v. Georgia, 428 U.S. 53, 229 (1976) (dissenting).

State v. Makwanyane, 1995 SA no. CCT/3/94 (1995).

United States v. Burns, [2001] S.C.R. 283, 289 (Can.).

Cited in Ocalan v. Turkey, Eur. Ct. H.R no. 46221/99, para. 159

(2005).

Tsakhia Elbegdorj, Pres. of Mongolia, Speech on Capital

Punishment at the State Great Khural (Jan. 14, 2010), avail-

able at http://www.president.mn/eng/newsCenter/viewNews.

php?newsId=122 (2010); Representación Permanente de España

ante la ONU, 28 Abril 2011, Ginebra, MA/MSS/N° 14572011.

Méndez: The Death Penalty and the Absolute Prohibition of Torture and Cru