By Jaskiran Kaur, Amity Law School, Delhi.
The death penalty entails the taking away of a person’s life after conviction on a capital offence by a competent court. The death penalty is still a legitimate form of punishment in some parts of United States of America, Saudi Arabia, and China. The International Covenant on Civil and Political Rights was indicative of the international view against death penalty – Article 6 implores those states which have not abolished the death penalty to exercise caution in carrying out this penalty.
The use of death penalty should be a quite ‘exceptional measure’ with appropriate safeguards observed for the trial itself; a right to review and the possibility of condemned person seeking pardon or commutation of sentence. International opinion was such that a Second Optional Protocol to the International Covenant on Civil and Political Rights, which aims at the abolition of death penalty was adopted in 1990 and is in force. State Parties to the Protocol believe the abolition of death penalty ‘contributes to enhancement of human dignity and progressive development of human rights’. This Optional Protocol requires States to cease executions and take all necessary measures to abolish the death penalty (Article 1). States may reserve the rights to use death penalty in time of war pursuant to the conviction for most serious crime of military nature committed during wartime (Article 2). The Universal Declaration recognises each person’s right to life and categorically states further that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. If administering 100 volts of electricity to the most sensitive parts of a man’s body evokes disgust, what is the appropriate reaction to the administration of 2,000 volts to his body in order to kill him? Does the use of legal process in these cruelties make their inhumanity justifiable?
- Death penalty applied in violation of international law
Death penalty is imposed and applied in violation of existing norms of international human rights law, which prohibit the execution of child offenders and of the mentally ill, as well as executions after unfair trials. In Saudi Arabia, Dhahran Rakan al-Sibai’I was beheaded on 21 July 2007 for a murder he allegedly committed when he was just 15 years old. The United States of America continues to pass death sentences on, and execute the mentally ill. As documented by the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, the death penalty is often imposed and carried out after unfair trials, where the most basic human rights of the defendants are violated, including the right to be presumed innocent, the right to be represented by legal counsel, the right to be tried by an independent and impartial court, the right to appeal to a higher tribunal and the right to petition for clemency or commutation of the death sentence. In Iraq, since the death penalty was reinstated in mid-2004, more than 270 people have been sentenced to death and at least 100 people have reportedly been executed, after trials that do not meet internationally recognised standards of fairness.
- Executing the innocent
Whenever the death penalty is used, there is a grave risk that individuals are executed for crimes they did not commit. Prisoners have been executed despite strong doubts about their guilt. Others have been freed after re-examination of their cases showed they had been wrongly convicted. However, death sentences are extremely difficult to reverse as appellate courts will often not consider new evidence, confining themselves only to points of law. In the United States of America, since 1973, 124 people condemned to death have been released because they were found to be innocent or their convictions rested on insufficient evidence against them. These repeated errors in death penalty cases have been especially due to irregularities committed by prosecution or police officers, recourse to unreliable evidence, or incompetence on the part of defence lawyers.
- No Deterrent
“It is not because the death sentence has been scrapped that crime has reached such unacceptable levels. Even if the death sentence is brought back, crime itself will remain as it is. What is required here is that the security forces must do their work and we are busy to ensure that the security forces have the capacity to deliver services, safety to the community?There is no valid scientific evidence to support that the death penalty deters crime more effectively than other punishments.
The best deterrent to violent crime lies in guaranteeing a high chance of capture and conviction. “We would be deluding ourselves if we were to believe that the execution of a comparatively few people each year will provide the solution to the unacceptably high rate of crime. The greatest deterrent to crime is the likelihood that offenders will be apprehended, convicted and punished. It is that which is lacking in our criminal justice system”.
The call for a global moratorium on executions
In light of the growing concerns about the application of the death penalty, various international and regional intergovernmental bodies have recommended establishing a worldwide moratorium on executions as a step towards abolition of capital punishment.
Such a resolution must include the following elements:
- Affirming the right to life and stating that abolition of the death penalty is essential for the protection of human rights;
- Calls on retention states to establish a moratorium on executions as a first step towards abolition of the death penalty
- Requests the states that do not practise capital punishment to reserve the right to refuse extradition of any person to a state where death is considered a penalty for the crime committed
- Urges states who have not already done, to sign and be party to IPCCR and additional Protocol.
ALTERNATIVES TO DEATH PENALTY
In every state that retains death penalty, jurors have the option of sentencing convicted capital murderers in life without the possibility of parole. When prosecutors seek life sentences instead of death, vast amounts of time and resources are saved. Based on comparing the murder rates in states with the death penalty versus states without the death penalty, alternative sentencing does not raise the murder rate. Because death sentences cost significantly more than life sentences, abolishing the death penalty would provide additional resources that could be used for other ways of dealing with crime, like services for victims’ family members, additional police officers, indigent defence funding.
International Human Rights , Oxford Publication (6th edition ) by Rhona K. M. Smith
International Human Rights Documents , By Sandhi Ghandhi , Blackstone Publications
 International Human Rights ‘Oxford Publication, 6th Edition’ by Rhona K. M. Smith
 International Human Rights ‘Oxford Publication; 6th edition’; by Rhona K. M. Smith ; Page number 221 and 222
 Those that committed a crime under 18 years
 See Amnesty International, Saudi Arabia: Juvenile offender beheaded, AI Index: MDE 23/031/2007
 See Amnesty International, USA: Supreme Court tightens standard on ‘competence’ for execution,
 For the reports of the UN Special Rapporteur on extrajudicial, summary or arbitrary executions,http://www.ohchr.org/english/issues/executions/index.htm
 See Amnesty International, Unjust and unfair: the death penalty in Iraq
 Voice of America, 9 September 1996
 Statement made by the Constitutional Court of South Africa, when abolishing the death penalty as unconstitutional in 1995
 See Amnesty International Abolition of death penalty’