Published in July 2018.
This module is a resource for lecturers
The death penalty
Despite the official or even de facto abolition of the death penalty in many countries, accompanied by broader international efforts towards its total abolition, including within the United Nations human rights system, a number of States continue to use it, notably here to punish some convicted terrorists. This is reflected too in the fact that some countries have either not ratified the ICCPR at all or else have entered reservations seeking to limit its application on these issues. (See Ratification Interactive Dashboard).
Such usage is a controversial issue, premised on various political, legal and moral arguments. Nonetheless, under international law, there is no absolute blanket prohibition on capital punishment. The effect though of certain treaty obligations is that some States have accepted not to use it, whilst others have also voluntarily agreed not to impose it, under any circumstances.
Under article 2(1) of the European Convention on Human Rights (ECHR), the starting premise is that "[e]veryone's right to life shall be protected by law" and that "[n]o one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law" (emphasis added). Technically, this permits the death penalty. Despite this wording, however, as the case of Ocalan demonstrates, the view of the European Court of Human Rights is that "capital punishment in peacetime [is now] regarded as unacceptable [and] no longer permissible under Article 2" (2003, paras. 163 and 166). The Court added that in order to avoid an arbitrary deprivation of life, "the most rigorous standards of fairness" should be observed during criminal proceedings.
In this way, the original wording of the ECHR could be seen as contrary to the subsequent development of international law which has been a strong trend towards the total, universal abolition of the death penalty. Certainly, this stance is reinforced in the European human rights system by Protocol No. 13 to the ECHR "concerning the abolition of the death penalty in all circumstances". Under the Protocol's articles 1-4, the death penalty is abolished in all circumstances, even in times of emergency provided for by article 15 ECHR. For States parties to the Protocol, "the provisions of Articles 1 to 4 of this Protocol shall be regarded as additional articles to the Convention". It has entered into force in all member States of the Council of Europe except Armenia, Azerbaijan and the Russian Federation (Council of Europe Treaty Series - Explanatory Report, 2002).
Similarly, the Human Rights Committee has affirmed that "any measure tending towards the abolition of death penalty must be considered as a progress in the enjoyment of the right to life" (General Comment No. 6 HRI/GEN/1/Rev.1). In the previous sections, as it was noted, the right to life content of the International Covenant on Civil and Political Rights (ICCPR), American Convention, Arab Charter and African Charter reflect stances - in varying degrees - closer to the abolitionist one. In fact, the practice of the Human Rights Committee on the fair trial requirement integrated into article 6 ICCPR is seen to be the strongest measure against the capital punishment of convicted individuals.
Despite such trends and approaches, in some countries the death penalty for convicted terrorists is expressly provided for within national anti-terrorism legislation. (For details of 15 retentionist countries, see World Coalition Against the Death Penalty, 2016). For example, article 21 of the United Arab Emirates' Law 7-2014 on combating terrorism and terrorist activities provides for the death penalty or life in prison for anyone who establishes, incorporates, organizes or manages or undertakes to lead "a terrorist organization". The death penalty may be imposed on individuals convicted of using terror to topple the royal family, to prevent the execution of the national Constitution, to disturb the peace and national security, or where the act of hijacking causes the death or injury of any individuals (Sadek, 2014). Another example is Uganda, where the death penalty can be awarded for not only terrorist acts, but also for the aiding and abetting of terrorism contrary to the Anti-Terrorism Act No. 14 (2002) (See especially terrorist offences provided for in sections 7(1)(a) and (b), 8, 9(1) and (2)). In 2018, the Israeli Knesset indicated in an early vote in favour of reintroducing the death penalty in Israel linking this support to victims of terrorism. The proposal, however, remains contentious including whether or not it will ultimately come into law (Harkov, 2018).
In other countries, although the death penalty technically exists within the national penal code, there has been a moratorium on its use in practice. One such country is Kazakhstan where the national constitution permits the use of the death penalty for terrorist offences resulting in fatalities as well as especially grave crimes committed in wartime, for which a moratorium has been in place since 2004. Consternation followed an announcement in 2013 that Kazakhstan was considering a new Criminal Code which would retain the death penalty in such circumstances (Penal Reform International, 2013).
The award of the death penalty as punishment following the conviction of certain terrorist offences in some countries is discussed further in Module 11.
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