To understand how international law treats the death penalty, we should start by identifying the sources of international law. It is widely considered that the answer lies in Article 38.1 of the Statute of the International Court of Justice. This provision says that the Court shall apply: a) international treaties, b) international custom, c) general principles of law “recognized by civilized nations” (whatever that means), and d) case law and “the teachings of the most highly qualified publicists”.
There are four international treaties that aim at the abolition of the death penalty to some extent. This last precision is important because only one of these four conventions forbids the capital punishment in all circumstances and at all times. The 6th Protocol to the European Convention on Human Rights, of 1983, was the first attempt to abolish the death penalty. However, this treaty permits a State to make an exception in time of war or of “imminent threat of war”. A similar exclusion is allowed by the 2nd Optional Protocol to the International Covenant on Civil and Political Rights, of 1989, and the Protocol to the American Convention on Human Rights to abolish the death penalty, of 1990. The only treaty that bans the capital punishment unambiguously is the 13th Protocol to the European Convention on Human Rights, of 2002, ratified to this day by 43 of the 47 Member States of the Council of Europe, exceptions being Russia, Azerbaijan, Poland and Armenia (these last two countries have signed but not yet ratified the treaty).
If we didn´t look beyond international treaties, we might conclude that only 43 States, all of them from Europe, are not allowed to execute judicially (that´s actually what the death penalty is, at the end of the day). Yet, we can observe certain trends in international custom that provide a different perspective. To start with, there is a clear decline in the use of the death penalty: The number of abolitionist countries stands at 97 (80 in 2003) and the number of countries known to have carried out executions in 2011 (21) has decreased compared to ten years earlier (28). Nowadays around 140 countries are abolitionist in law or in practice. Last December, a record 111 countries voted for a moratorium on death penalty at the UN General Assembly, an increase of two from the last vote in 2010. The abolition of the death penalty is also part of the diplomatic agenda of several countries; to take a case in point, Spain will host the 5th World Congress Against the Death Penalty, to be held in Madrid next June.
As per general principles, case law and scholars, Supreme and Constitutional Courts of several countries (Lithuania, Hungary or South Africa, for example) have concluded that capital punishment is inherently inconsistent with the fundamental rights enshrined in their national constitutions. Article 2.2 of the 2000 EU Charter of Fundamental Rights says that “no one shall be condemned to the death penalty, or executed”. Since the 2007 Treaty of Lisbon, the Charter is part of the EU primary law. Consequently, no EU country could possibly attempt to reintroduce the capital punishment in its criminal legislation. Abolition is also one of the goals of the EU Strategic Framework and Action Plan on Human Rights and Democracy. Generally speaking, in recent years we have witnessed new international legal standards that restrict the applicability of the death penalty by favouring the limitation of the range of crimes, ruling out the reintroduction of capital punishment or the extension of the scope, barring its retroactive or mandatory use, protecting some particularly vulnerable groups (children, pregnant women or people with mental disabilities), guaranteeing consular assistance, or excluding certain methods of execution. Death penalty is also an issue that is raised fairly often within the context of the Universal Periodic Review at the UN Human Rights Council. International bodies, such as the Parliamentary Assembly of the Council of Europe and the UN Committee Against Torture, have also linked the death penalty to the use of torture and other forms of ill-treatment, which are clearly prohibited in international law. Yet, there is still reluctance among retentionist countries. In October 2012, when the UN Special Rapporteur on torture, Juan Méndez, argued at the UN Human Rights Council that a new approach was needed to frame the debate over the legality of the death penalty in the context of human dignity and the ban on torture and cruel, inhuman or degrading punishment, three States (Singapore, the US and Egypt) openly rejected the link between the two.
As a conclusion, even though international conventions on the issue of death penalty are essentially unsatisfactory, given that just one treaty bans it in all circumstances and only 43 countries have agreed to to comply with it, international law and practice is headed towards the abolition of this degrading and anachronistic punishment. No doubt, to a great extent this evolution is due to the work done by civil society organisations all over the world. After all, Amnesty International issued its first global campaign against the death penalty in 1980, at a time when there wasn´t a single treaty on the matter. Today, countries that apply this penalty constitute a clear minority, and the group is decreasing in size every year.
This is a brief summary of my talk in the seminar on the death penalty organised by ELSA-Deusto in Donostia-San Sebastian on 20 March.