High Commissioner for Human Rights Calls on States that Have Not Yet Done So to Establish Moratoriums on the Death Penalty and Work Towards its Abolition

The Human Rights Council this morning held its biennial high-level panel discussion on the question of the death penalty.  The theme of this year’s panel was “Human rights violations relating to the use of the death penalty, in particular with respect to limiting the death penalty to the most serious crimes”.

Volker Türk, United Nations High Commissioner for Human Rights, said for many years, the United Nations had opposed the death penalty in all circumstances.  Ultimately, this was about the United Nations Charter’s promise of the highest standards of protection of all human beings.  Infliction by the State of the death penalty - the most severe and irreversible of punishments - was profoundly difficult to reconcile with human dignity, and with the fundamental right to life.  Mr. Türk called on States that had not yet done so to take a strong lead by restricting the use of the death penalty, establishing moratoriums and working towards its abolition, noting that until every nation abolished the death penalty, the road to defending human dignity would never be fully complete.

Idrissa Sow, Chairperson of the Working Group on the Death Penalty, Extrajudicial, Summary or Arbitrary Killings, and Enforced Disappearances in Africa of the African Commission on Human and Peoples’ Rights, said the African Commission remained convinced of the need to develop partnership actions with other national and international institutions to move towards the universal abolition of the death penalty on the continent through a progressive approach focusing more on restorative justice.  A draft protocol to the Charter on the Abolition of the Death Penalty had also been introduced into the adoption cycle by the deliberative bodies of the African Union.  However, despite all efforts made, the death penalty continued to be pronounced on the African continent, with clear risks of judicial error.

Azalina Othman Said, Minister of Law and Institutional Reform of Malaysia, said Malaysia was moving towards abolishing the mandatory death penalty.  Currently, there are 11 offences that carried the mandatory death penalty in Malaysia, including murder, terrorism, waging war on the State, and discharging firearms.  An announcement was made in June 2022 to abolish the mandatory death penalty.  Malaysia took the view that whilst the death penalty was not completely abolished, the abolition of the mandatory death penalty was a balance between what was right and wrong.

José Santos Pais, Member of the Human Rights Committee, said the issue of the right to life had been attracting the attention of the Human Rights Committee for many years, during which time it had issued three general comments: 6 (1982), 14 (1984) and 36 (2019).  The right to life was the supreme right from which no derogation was permitted, even in situations of armed conflict and other public emergencies that threatened the life of the nation.  There was a clear international trend towards the abolition of the death penalty.  Those States which had not yet abolished death penalty should reduce its imposition to the most serious crimes involving intentional killing, and then only in the most exceptional cases and under the strictest limits.

Mai Sato, Associate Professor at the Faculty of Law at Monash University, Director of Eleos Justice, and Deputy Director of CrimeInfo, said that of the 79 countries that retained the death penalty under law, only two followed the international standard of restricting the death penalty to the most serious crimes defined as intentional killing.  In the remaining 77, State-sanctioned killing was kept as a form of punishment for offences that failed to meet the “most serious” standard.  Some capital offences should not be criminalised at all.  These included adultery, so-called religious offences, and same-sex sexual acts, that were punishable by death in 11 countries. 

Sarah Belal, Executive Director of Justice Project Pakistan, said Pakistan was a country with nearly 4,000 people on death row and over 30 capital offences.  Every country’s journey towards abolition or compliance with international standards on the death penalty was tethered to their own sociocultural context.  Governments were far more likely to reign in their use of capital punishment when utilitarian and strategic solutions were provided and backed by in-depth data and research into the country’s use of capital punishment.  Pakistan had leveraged the advantages of compliance with the United Nations treaty body system to help bring the State’s application of the death penalty in line with international human rights law.

In the ensuing discussion, some speakers raised, among other points, that the right to life was inviolable.  The death penalty should not be instrumentalised by any State to punish individuals participating in protests and to strike fear into the population with the aim of chilling dissent.  Not meeting due process and fair trial guarantees or causing additional suffering in the execution of the death penalty could amount to torture or inhuman or degrading treatment, among other violations.  In accordance with international human rights law, children must always be exempted from the death penalty, speakers said. 

Some speakers said that all States should pursue the path towards full abolition, if needed by first adopting a moratorium on executions or reducing the number of offenses which could lead to the application of capital punishment.  Other speakers pointed out that the universal abolition of capital punishment was a non-consensual agenda item pursued across the United Nations, that international law did not prohibit capital punishment, and that there was a lack of consensus on the subject as a whole, calling for respect of cultural particularities and religious beliefs of all, stating that all States had the right to determine their own legislation as part of their sovereign nature. 

Speaking in the panel discussion were Belgium on behalf of a group of countries; Portugal; Australia, also speaking on behalf of Canada and New Zealand; Costa Rica on behalf of a group of 54 countries; the European Union Special Representative of Human Rights; South Africa; Spain; Burkina Faso; Italy; Costa Rica; Singapore on behalf of a group of countries; Switzerland, also speaking on behalf of Austria, Lichtenstein and Slovenia; Argentina on behalf of a group of countries; Angola on behalf of the Community of Portuguese-speaking countries; Oman on behalf of the Gulf Cooperation Council; Finland on behalf of Nordic-Baltic countries; Sierra Leone; Togo; Zambia; France; Cameroon; Iraq; Egypt; and Libya.

Also speaking were the following non-governmental organizations Ensemble contre la peine de mort; International Federation of ACAT; Centre for Global Nonkillings; Harm Reduction International; International Lesbian and Gay Association; and International Bar Association.

The webcast of the Human Rights Council meetings can be found here.  All meeting summaries can be found here.  Documents and reports related to the Human Rights Council’s fifty-second regular session can be found here.

At 11 a.m., the Human Rights Council will continue its high-level segment.

Opening Statements

VOLKER TÜRK, United Nations High Commissioner for Human Rights, said for many years, the United Nations had opposed the death penalty in all circumstances.  Ultimately, this was about the United Nations Charter’s promise of the highest standards of protection of all human beings.  Infliction by the State of the death penalty - the most severe and irreversible of punishments - was profoundly difficult to reconcile with human dignity, and with the fundamental right to life.  Further, innocent people had been killed.  Such an outcome was intolerable for all.  The use of the death penalty was egregious against any human being, and when used against people who had not even committed the crime of which they were accused, it was unfathomable.

The existence of the death penalty in countries that maintained it – as well as the threat of its use - could be turned to improper purposes, such as instilling fear, repressing opposition, and quashing the legitimate exercise of freedoms.  In a number of contexts, the death penalty, in its practical application, also discriminated, condemning to death people on society’s side lines, including racial, ethnic, linguistic and religious minorities, and the lesbian, gay, bisexual, transgender, queer, intersex plus community.  In other situations, it had been used with chilling effect on political opponents or protesters, notably young people.

The Human Rights Committee had made clear thatthe only crimes permissible in the current state of the law were ‘crimes of extreme gravity, involving intentional killing.  In many countries, there was still mandatory imposition of the death penalty, irreconcilable with fair trial standards.  Experts in criminal justice - drawing on experience worldwide – had advised that the proper response lay in controlling and preventing crimes, and that functioning, human rights-based criminal justice systems must be built that afforded victims and survivors access to justice, redress and dignity.  Perpetrators must be held to account.

Mr. Türk concluded by calling on States that had not yet done so to take a strong lead, by restricting the use of the death penalty, establishing moratoriums, and working towards its abolition, noting that until every nation abolished the death penalty, the road to defending human dignity would never be fully complete.

IDRISSA SOW, Chairperson of the Working Group on the Death Penalty, Extrajudicial, Summary or Arbitrary Killings, and Enforced Disappearances in Africa of the African Commission on Human and Peoples’ Rights, noted that 2022 had ended under good auspices with the adoption by the Republic of Zambia of a law fully abolishing the death penalty for all offences.  That was a major reform, following similar initiatives implemented by the Central African Republic and Equatorial Guinea.  An abolitionist trend on the continent had been registered as to date, 26 States had chosen to completely abolish the death penalty while at least 14 others applied a consolidated moratorium on executions.  The African Commission on Human and Peoples' Rights remained convinced of the need to develop partnership actions with other national and international institutions to move towards the universal abolition of the death penalty on the continent through a progressive approach focusing more on restorative justice.

The Working Group had initiated major projects and programmes.  One example was the decision taken by the African Commission to revise the study on the death penalty carried out in 2011.  A draft protocol to the Charter on the Abolition of the Death Penalty had also been introduced into the adoption cycle by the deliberative bodies of the African Union.  The African Commission had constantly urged States keeping the death penalty in their domestic legal corpus to limit its application to the most serious crimes and to consider establishing a moratorium on executions. However, despite all efforts made, the death penalty continued to be pronounced on the African continent, with clear risks of judicial error.  Efforts should be combined by asking States to limit the penalty’s scope.  The African Commission on Human and Peoples’ Rights stood prepared to continue collaborating with the Office of the High Commissioner for Human Rights.

Statements by the Panellists

AZALINA OTHMAN SAID, Minister of Law and Institutional Reform of Malaysia, said Malaysia was moving towards abolishing the mandatory death penalty.  This discourse had been controversial in Malaysia as there were strong views for and against the abolition of the death penalty.  Currently, there are 11 offences that carried the mandatory death penalty in Malaysia, including murder, terrorism, waging war on the State, and discharging firearms.  A study in 2013 conducted for the Malaysian Government showed that a large majority of Malaysians supported either the mandatory death penalty or a discretionary death penalty.  These statistics stressed the sentiment on the ground that the total abolition of the death penalty was not favoured in Malaysia.

The Government of Malaysia had taken proactive actions to support a positive death penalty landscape in Malaysia.  The Government in 2017 abolished the mandatory death penalty for drug trafficking.  In 2019, a special committee was established to conduct an overall review on the sentencing policy to replace the mandatory death penalty with a more appropriate sentencing, subject to the discretion of the courts.  The study was conducted with all stakeholders and presented to the Cabinet.  Subsequently, an announcement was made in June 2022 to abolish the mandatory death penalty.  The proposed alternative sentencing was for 11 offences, including murder and terrorism - and 22 other offences that carried a potential death sentence at the court's discretion.  The journey has never been easy for Malaysia as it took into consideration outcomes from engagements with all stakeholders.  Malaysia also ensured that the policy decision considered the proportionality principle.  Malaysia took the view that whilst the death penalty was not completely abolished, the abolition of the mandatory death penalty was a balance between what was right and wrong.

JOSÉ MANUEL SANTOS PAIS, Member of the Human Rights Committee, said the issue of the right to life had been attracting the attention of the Human Rights Committee for many years, during which time it had issued three general comments: 6 (1982), 14 (1984) and 36 (2019).  The right to life was the supreme right from which no derogation was permitted, even in situations of armed conflict and other public emergencies that threatened the life of the nation.  The right to life was a right for all human beings, without distinction of any kind, including for persons suspected or convicted of even the most serious crimes.  States parties must ensure the right to life and exercise due diligence to protect the lives of individuals against deprivations caused by persons or entities whose conduct was not attributable to the State.

Mr. Santos Pais said that any substantive ground for deprivation of life must be prescribed by law and defined with sufficient precision to avoid broad or arbitrary interpretation or application.  The death penalty could never be applied as a sanction against conduct the very criminalisation of which violated the Covenant, such as adultery, homosexuality, apostasy, establishing political opposition groups, or offending a Head of State.  In all cases involving the application of the death penalty, the personal circumstances of the offender and particular circumstances of the offence, including its specific attenuating elements, must be considered by the sentencing court.  There was a clear international trend towards the abolition of the death penalty.  Those States which had not yet abolished the death penalty should reduce its imposition to the most serious crimes involving intentional killing, and then only in the most exceptional cases and under the strictest limits.

MAI SATO, Associate Professor at the Faculty of Law at Monash University, Director of Eleos Justice, and Deputy Director of CrimeInfo, noted that of the 79 countries that retained the death penalty under law, only two - Jamaica and Saint Vincent and the Grenadines - followed the international standard of restricting the death penalty to the most serious crimes defined as intentional killing.  In the remaining 77, State-sanctioned killing was kept as a form of punishment for offences that failed to meet the “most serious” standard.  Some capital offences should not be criminalised at all.  These included adultery, so-called religious offences, and same sex sexual acts, that were punishable by death in 11 countries.

In at least 38 countries, rape was a capital offence: capital rape laws used the language of women’s rights to violate the right to life.  Executions were regularly carried out for drug-related offences, which failed to meet the “most serious” standard.  Drug offences could be punishable by death in 38 countries and between 2010 and 2020, at least over 4,000 people had been executed for such offences.  Noting that retentionist countries might cite religion, popular public support, or deterrence as barriers for moving away from the death penalty, she stressed, for example, that there were countries where Islam was the State religion, but they did not prescribe the death penalty for religious offences, showing that the Qur’an embraced religious freedom.  The death penalty was a symbol of a State’s lethal control over its citizens.  All retentionist States - from those whose capital laws had not been in use for a long time to those that executed - could take active steps to further restrict the death penalty in their jurisdictions, taking seriously the “most serious crimes” standard.

SARAH BELAL, Executive Director of Justice Project Pakistan, said Pakistan was a country with nearly 4,000 people on death row and over 30 capital offences.  Every country’s journey towards abolition or compliance with international standards on the death penalty was tethered to their own sociocultural context.  Governments were far more likely to reign in their use of capital punishment when utilitarian and strategic solutions were provided and backed by in-depth data and research into the country’s use of capital punishment.  In 2018, Justice Project Pakistan, in collaboration with the Ministry of Human Rights, conducted a detailed analysis of Pakistan’s capital crimes.  The research revealed that Pakistan had largely adhered to the most serious crimes standard, with no executions, or even death sentences on record for most of the non-serious offences.  In October 2022, Pakistan’s Parliament eliminated the death penalty for the offence of railway sabotage. 

Pakistan had leveraged the advantages of compliance with the United Nations treaty body system to help bring the State’s application of the death penalty in line with international human rights law.  It was well-established that drug offences fell short of the most serious crimes threshold, despite 35 States maintaining the death penalty for these crimes.  Any strategy to combat the death penalty for drug offences must be interwoven with systemic reform of drug policies.  In 2014, over 400 people were reportedly on death row for drug crimes in Pakistan, yet there had been no recorded executions carried out for this offence since 2010.  Pakistan’s evolving jurisprudence on narcotics-related offences opened the door for civil society organizations to lobby the Government to repatriate Pakistanis facing capital punishment for drug crimes overseas.  Pakistan had been able to significantly reduce executions of its citizens overseas, particularly in the Gulf.

Discussion

In the ensuing discussion, many speakers said, among other things, that the right to life was inviolable.  Since the right to life had been enshrined in the Universal Declaration of Human Rights, 170 States had ended use of the death penalty, which had no deterrent effect, and did not contribute in any way to making society safer.  People were sentenced to death for grounds which could not be criminalized under the International Covenant on Civil and Political Rights, such as adultery, dissent, witchcraft or apostasy.  The use of the death penalty must be limited to offences involving killings, in the context of a fair trial.  The death penalty was a violation of a fundamental human right: the right to life.

Some speakers said that capital justice was not a matter of criminal justice, it was a human rights issue: it constituted cruel, degrading and inhumane treatment.  It disproportionately affected people living in poverty, with diverse sexual orientations and gender orientations, indigenous peoples, and other minorities.  The death penalty should not be instrumentalised by any State to punish individuals participating in protests and to strike fear into the population with the aim of chilling dissent.  The death penalty was, nevertheless, often instrumentalised as a mean of intimidation and repression and applied to offences that did not reach the threshold of gravity provided for by international law.  Not meeting due process and fair trial guarantees or causing additional suffering in the execution of the death penalty could amount to torture or inhuman or degrading treatment, among other violations.  In accordance with international human rights law, children must always be exempted from the death penalty, some speakers said.

All States should pursue the path towards full abolition, if needed by first adopting a moratorium on executions or to reduce the number of offenses which could lead to the application of capital punishment.  Ratifying the Second Optional Protocol to the International Covenant on Civil and Political Rights was crucial in this regard.  States had obligations under the Covenant, under which countries that had not yet abolished the death penalty could only apply it for offences that amounted to “the most serious crimes”, and observing the procedural guarantees prescribed in the Covenant.  All detainees were entitled to the right to a fair hearing by an independent tribunal, the presumption of innocence, access to a lawyer, and other minimum guarantees for the defence, and the right to review by a higher tribunal.  One speaker asked panellists how to legislate against the death penalty in a context where public opinion was in favour of this penalty. 

Another speaker pointed out that that the universal abolition of capital punishment was a non-consensual agenda item pursued across the United Nations, and that international law did not prohibit capital punishment, noting that there was no international consensus on what constituted the “most serious crimes”; it was not explicitly defined under international law, reflecting that countries held differing but legitimate views on this issue.  One speaker noted the lack of consensus on the subject as a whole, calling for respect of cultural particularities and religious beliefs of all, stating that all States had the right to determine their own legislation as part of their sovereign nature. 

A number of speakers commended those countries that had recently banned capital executions, confirming the global trend towards abolition, as well as the growing support for the General Assembly resolution on the moratorium of the death penalty.  Many speakers called for immediate moratoria on executions, leading to abolition, as well as restricting the use of the death penalty to the minimum, only to the “most serious crimes” in accordance with international law.  It was through the right to life that the human person was protected. 

Concluding Remarks

AHMAD FAISAL MUHAMAD, Permanent Representative of Malaysia to the United Nations Office at Geneva, said this had been an insightful discussion, in which the different views presented had deepened the understanding of the topic.  While experiences may vary, it was encouraging that States had come together to learn from one another best practices that might help progress further.  Malaysia hoped the Council would continue to facilitate dialogue on the issue, aimed at bridging difference.  Malaysia’s experience on the death penalty was grounded in the realities of a multicultural and multireligious society.  Malaysia had been engaging all stakeholders and commissioning studies.  It would continue to engage all stakeholders to ensure further progress in accordance with the principle of proportionality, the rule of law, and the supremacy of the Federal Constitution of Malaysia.  Malaysia intended to expend engagement in the endeavour to understand and implement the principle of restorative justice thorough community corrections, welcoming the expertise of relevant human rights mechanisms.

JOSE MANUEL SANTOS PAIS, Member of the Human Rights Committee, said that considerable progress had been made and said that it must be kept in mind that any miscarriage of justice regarding the death penalty was irreparable.  He noted that more than two thirds of States had now abolished the death penalty in practice.  However, moving forward in a joint effort was needed from all stakeholders - also needed was a vibrant civil society.

MAI SATO, Associate Professor at the Faculty of Law at Monash University, Director of Eleos Justice, and Deputy Director of CrimeInfo, said many countries had been moving away from a drug policy based on punishment, towards a harm reduction approached.  For example, the very agency responsible for enforcing the global prohibition of illicit drugs had acknowledged the policy which included the death penalty had created a lucrative, violent black market.  The term abolitionist was misleading; death sentences continued to be handed down for crimes which did not meet the most serious crime threshold.  For abolitionist in practice countries, the death penalty remained an active tool to punish offenders, while the governments benefitted from being classified as defacto abolitionists.  True abolitionist States also had a role to play in the abolition of the death penalty; all States were responsible. 

SARAH BELAL, Executive Director of Justice Project Pakistan, said the death penalty was carried out in the shadow of darkness, hidden from the public.  Unlike governments, the public did not respond to statistics - rather, stories were better told by artists and suchlike to the public in order to elicit empathy.  The overall trend was towards abolition, but there was a dangerous trend back towards capital punishment around the world.  The past year had seen significant cuts from foundations that had traditionally fought the death penalty, and these needed to be filled by Governments, so that organizations could continue the fight.  Where the most successful strategies were setting up regional and global networks, the South East and Middle East network was inspiring the creation of a master list of persons on death row.

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