Human Rights Council 34th Session
Theme: “The death penalty and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment”
Opening Statement by Zeid Ra'ad Al Hussein, United Nations High Commissioner for Human Rights
Geneva, 1 March 2017
Colleagues and friends,
I welcome this opportunity to address this important topic.
Capital punishment raises serious issues in relation to the dignity and rights of all human beings, including not only the right to life, but also to the right not to subjected to torture or to cruel, inhuman or degrading treatment.
The late Sir Nigel Rodley, who contributed immensely to the human rights movement, put this very clearly:
“If Article 5 of the Universal Declaration of Human Rights ordains that “no-one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”, by what mental gymnastics could deliberately, and cold-bloodedly, putting someone to death be exempted from categorization as cruel, inhuman and degrading”?
For many decades, and in increasingly large numbers, judicial bodies at the national level and across the globe have followed Sir Nigel’s reasoning, and have held that the death penalty per se violates the prohibition of torture, cruel, inhuman or degrading treatment. They include the Canadian Supreme Court, and the Constitutional Courts of Albania, Hungary, Lithuania, South Africa and Ukraine.
International and national bodies have determined that several methods of execution are likely to violate the prohibition of torture, because of the pain and suffering they are likely to inflict on the convicted person. Studies of the severe pain and suffering caused by other methods has continued to extend this list, to the point where it has become increasingly difficult for a State to impose the death penalty without violating international human rights law.
The long and highly stressful period that most individuals endure while waiting on "death row" for years, or even decades, and frequently in isolation, for an uncertain outcome, has also been referenced as constituting torture or cruel, inhuman or degrading treatment. This so-called "death row phenomenon" has been recognized by the Human Rights Committee and other bodies at the international, regional and domestic levels, as well as by the California Supreme Court, which found in 1972 that “the cruelty of capital punishment lies not only in the execution itself, and the pain incident thereto, but also in the dehumanizing effects of lengthy imprisonment prior to execution”.
Furthermore, when the authorities fail to give adequate information about the timing of executions, they maintain not only the convicted person but also his children and other family members in permanent anticipation of imminent death. This acute mental distress, which may be compounded by failure to return the body to families for burial, or inform them of the location of burial, is unjustifiable.
In light of all these elements and related findings, former Special Rapporteur Juan Mendez has referred to the existence of an evolving standard according to which the death penalty constitutes torture or other cruel, inhuman or degrading treatment or punishment, and has recommended that this Council request a comprehensive legal study regarding the emergence of such a customary norm.
It has been ten years since the General Assembly resolution of December 2007 which urged States to adopt a moratorium on the use of the death penalty, with a view towards its full abolition. In those ten years, the global trend against capital punishment has become increasingly strong. Today, almost three out of four countries have either abolished the death penalty or do not practice it
However, we still have many causes for concern. The overall number of executions in States that continue to resort to the death penalty has increased in the last two years. Furthermore, some States in which a moratorium had been in place for many years have recently resumed executions.
I take this opportunity, once again to urge all States to end use of the death penalty.
I also urge other actors to come to the fore. Recently several companies have taken steps to prevent prison authorities from purchasing their medications for use in executions by lethal injection. I commend these steps to ensure that their operations, products or services do not contribute to the inhuman practice of the death penalty. All businesses and private companies should act in accordance with their human rights responsibilities as set out in the Guiding Principles on Business and Human Rights.
A century and a half ago, Dostoevsky wrote that the chief and the worst pain of capital punishment "is perhaps not inflicted by wounds, but by (the) certain knowledge that in an hour, in ten minutes, in half a minute, now, this moment your soul will fly out of your body, and that you will be a human being no longer”.
There are many reasons why we should move away from the death penalty, starting with its capricious and frequently discriminatory application, and its failure to demonstrate any deterrent effect beyond that of other punishments. The severe mental and physical suffering which are inflicted by capital punishment on the person concerned and family members should now be added to the weight of the argument. The use of the death penalty should be ended.