Death penalty increasingly viewed as torture, UN Special Rapporteur finds
Death penalty seen as torture
23 October 2012
NEW YORK (23 October 2012) – States should consider whether using the death penalty per se fails to respect the inherent dignity of the person, causes severe mental and physical pain or suffering and amounts to torture or cruel, inhuman or degrading treatment, the United Nations Special Rapporteur on torture, Juan E. Méndez, has said.
Presenting his report to the United Nations General Assembly today, the human rights expert observed that the death penalty has so far been treated under the exception to the right to life provided for by international law. He said that a “new approach” that puts the death penalty in the context of the prohibition of torture was required.
“The prohibition of torture is absolute and non-derogable,” underscored Mr. Méndez, whose report analyses the evolving standard within international bodies and a robust State practice to frame the debate about the legality of the death penalty in the context of fundamental concepts of human dignity and the prohibition of torture and cruel, inhuman and degrading punishment.
“My analysis of regional and national jurisprudence identifies a momentum towards redefining the legality of capital punishment,” said Mr. Méndez. He warned that “States need to re-examine their procedures under international law because the ability of States to impose and carry out the death penalty is diminishing as these practices are increasingly viewed to constitute torture.”
The expert noted that the “death row phenomenon” was a relatively new concept within the context of the prohibition of torture and cruel, inhuman and degrading treatment. The phenomenon refers to a combination of circumstances that produces severe mental trauma and physical suffering among prisoners serving death sentences, including uncertainty and anxiety created by the threat of death and other circumstances surrounding execution, prolonged solitary confinement, poor prison conditions and lack of educational or recreational activities.
“So while it may still be theoretically possible to impose and execute the death penalty without running afoul of the absolute prohibition of torture and cruel, inhuman or degrading treatment, the rigorous conditions that States must apply for that purpose make retention of capital punishment costly and impractical and not worth the effort,” he explained.
Several methods of execution, including stoning and gas asphyxiation have been explicitly deemed to violate the prohibition of torture and cruel, inhuman or degrading treatment by international and domestic judicial bodies and have been prohibited by a number of retentionist States.
“Further, while international law does not attribute different values to the right to life of different groups of persons such as juveniles, persons with mental disabilities, pregnant women, elderly persons or persons sentenced after an unfair trial, there is an established standard, supported by a vast majority of States, that executions in these cases are inherently cruel,” the expert said.
The Special Rapporteur argued that the evolving international standard which considers the death penalty as a violation of the prohibition of torture and cruel, inhuman and degrading treatment and the resulting illegality of the death penalty under article 1 and 16 of the Convention against Torture is developing into a norm of customary international law, if it has not already done so already.
Juan E. Méndez (Argentina) was appointed by the UN Human Rights Council as the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment in November 2010. He is independent from any government and serves in his individual capacity. Mr. Méndez has dedicated his legal career to the defense of human rights, and has a long and distinguished record of advocacy throughout the Americas. Learn more, log on to: http://www2.ohchr.org/english/issues/torture/rapporteur/index.htm