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Remarks by Ms. Kyung-wha Kang, United Nations Deputy High Commissioner for Human Rights, at the 10th International Day against the Death Penalty

10 October 2012

Distinguished colleagues,
Representatives of civil society,
Friends,

I would like to extend a warm welcome to all of you, and thank you for participating in this event. I am grateful to the panelists who have come from various parts of the world to share their experiences with us today.

As we are marking today the 10th International Day against the Death Penalty, we can say that the global trend on the death penalty has considerably evolved in recent years. The large majority of Member States of the United Nations –about 150 of 193 States – have either abolished the death penalty or are observing a legal or de facto moratorium on its use. An increasingly large number of Member States from all regions have acknowledged that the death penalty undermines human dignity, and that its abolition, or at least a moratorium on its use, contributes to the enhancement and progressive development of human rights. The General Assembly, starting with its landmark resolution in 2007, has also adopted numerous resolutions in this sense in recent years.

With regard to States that retain the death penalty, international law requires as a minimum full compliance with the clear restrictions prescribed in particular in article 6 of the International Covenant on Civil and Political Rights (ICCPR). According to paragraph 2 of article 6, the application of the death penalty shall be limited to the “most serious crimes.” It should be recalled that this has been interpreted to mean that the death penalty, if applied, should only be applied to the crime of murder. Therefore, in those States that have not yet abolished the death penalty, the use of capital punishment for drug offences or for offences carried out in connection with organized crime is prohibited if the offences in question do not involve a taking of life. Furthermore, according to the provisions of paragraph 5 of article 6 ICCPR, the death penalty cannot be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.

States that have maintained the death penalty must ensure scrupulous respect of due process guarantees. The imposition of a death sentence upon conclusion of a trial in which the provisions of article 14 of the ICCPR have not been respected constitutes a violation of the right to life. Those accused of capital offences must be effectively assisted by a lawyer at all stages of the proceedings. Furthermore, executions must not take place when an appeal or other recourse is pending, and there must be the possibility for the individual concerned to seek pardon or commutation of the sentence.

Nevertheless, it is striking that even well-functioning legal systems in States that retain the death penalty have sentenced to death persons who ultimately were proved to be innocent. The death penalty, unlike any other form of sentencing is, by definition, irreversible. Unlike a prison sentence where a person can be subsequently released if evidence is later uncovered that proves that a person is innocent, there is no second chance for the person who has been executed.

Non-compliance with the principle of non-discrimination is also a major concern when considering the application of the death penalty. The death sentence is often imposed on less privileged individuals who do not have sufficient access to effective legal representation. In sentencing practice, the decision whether to sentence the person to death or a long term of imprisonment is often arbitrary. The odds are frequently stacked against those who belong to racial, religious, national, ethnic or sexual minorities. In addition, due regard is often lacking for the UN Safeguards Guaranteeing Protection of those Facing the Death Penalty, approved by ECOSOC in 1984, which prohibit the carrying out of the death penalty on persons “who have become insane.”

Methods of execution should also meet the standards of “least possible physical and mental suffering.” Otherwise, the execution will constitute a violation of freedom from torture, inhuman or to cruel, inhuman or degrading treatment or punishment. It is difficult to think of a humane method of executions that can meet these criteria. Also troubling are the length and conditions imposed on individuals on death row. The cruelty of the process starts long before the execution, when the condemned person is caught in a limbo between the terrifying fear of an imminent violent death and the faint hope that appeals for due process or clemency could spare his or her life after all.

A key obligation to bear in mind for any State that has itself abolished the death penalty is not to expel, extradite or otherwise remove from its jurisdiction individuals who face a real risk of a death sentence and execution in the country to which they are removed, without ensuring that the death penalty would not be carried out. Extradition or other transfer to such a country accordingly requires the procurement of effective guarantees or assurances to the effect that, at a minimum, the death penalty, if imposed, will not be carried out.

Ladies and gentlemen,

It is interesting to note that in the early 1960s, when drafting the Covenant, its authors were already paving the way for the move in international law towards the abolition of the death penalty. The last paragraph of article 6 of the ICCPR provides that “nothing in this article shall be invoked to delay or prevent the abolition of capital punishment in any State party to the Covenant”. This move, which materialized in 1989 through the adoption of the Second Optional Protocol to the International Covenant on the Civil and Political Rights, to-date ratified by 74 States, is also reflected in a number of regional instruments supporting the abolition of the death penalty. The High Commissioner and her Office call upon States that have not yet done so to ratify the Second Optional Protocol, or as a strict minimum to place a formal moratorium on the use of the death penalty until they are ready to work towards its abolition.

In closing, I would urge all human rights defenders, civil society and religious leaders, and representatives of the media, to keep the light shining on the fact that the application of the death penalty is unjust and incompatible with fundamental human rights values. It is an affront to the right to life and the right to human dignity.

Thank you.