Human Rights Committee adopts 10 additional paragraphs to the draft General Comment on the right to life

GENEVA (26 July 2018) - The Human Rights Committee today continued the second reading of its draft General Comment No. 36 on article 6 of the International Covenant on Civil and Political Rights on the right to life.  The Committee adopted paragraphs 45 to 55 of the fourth part of the draft General Comment on the imposition of the death penalty, thus concluding that part.

Yuval Shany, Committee Chairperson and Rapporteur for the draft General Comment, led the discussion and presented proposals submitted by States, organizations and individuals.

Introducing paragraph 45 on the violation of the fair trial guarantees which could render the imposition of the death penalty arbitrary in nature, Mr. Shany said that some States were concerned that it was up to national courts to decide on such matters.  Some non-governmental organizations suggested that the paragraph contain a reference to the time and facilities to prepare defence, and to persons with disabilities.  The Committee then adopted paragraph 45.

Speaking of paragraph 46 on other serious procedural flaws not explicitly covered by article 14 of the Covenant (for example, the right to consular notification), the Rapporteur informed that some States had questioned the applicability of non-refoulement outside the Convention against Torture.  He noted that the Committee should stress that the failure to meet a relevant treaty that could have impact on due process would fall under article 6 of the Covenant.  The Committee then adopted paragraph 46.

Moving on to paragraph 47 on guilt beyond reasonable doubt and wrongful convictions in death penalty cases, Mr. Shany explained that some States had questioned the use of “new reliable studies,” objecting that it was vague, whereas some non-governmental organizations asked for a reference to the “review of administrative barriers.”  The Committee Experts debated whether “scientific studies” could replace “reliable studies.”  The Committee then adopted paragraph 47.

On paragraph 48 on the interplay between the death penalty and non-discrimination, the Rapporteur said that the Russian Federation had suggested that the paragraph should focus on prejudices and stereotypes against different groups.  In the ensuing discussion, the Committee Experts debated the order of the sentences, and agreed that the phrase “unequal application of the death penalty” captured well underlying prejudices and stereotypes.  The Committee then adopted paragraph 48.      

As for paragraph 49, which dealt with the application of the death penalty by competent courts, Mr. Shany informed that some countries were very concerned with the Committee’s suggestion that military courts were not sufficiently competent in handing down the capital punishment.  Some had also objected to the use of the term “tribal courts.”  The Committee Experts reminded that military courts could try civilians at times of war.  As for customary courts, an Expert favoured stronger language as commutation of the sentence could be very stressful for the families of victims.  An Expert asked to substitute “tribal courts” with “community courts” or “courts of customary justice”.  Another Expert wondered if they should say such a court “should” or “must” be established by law within the judiciary.  Mr. Shany said they could just refer to courts of customary justice, and agreed with an Expert that they could divide the sentences, saying “Such a court should be established by law … and must be established before the commission of the offence.”  Paragraph 49 was then adopted.

Paragraph 50 dealt with exhaustion of all judicial appeals.  Mr. Shany said a number of States had suggested changes in the paragraph, among other things expressing worry about extensive appeals.  He was not proposing any changes for this paragraph.  Some Experts suggested some changes and raised questions, including to change one sentence to “after petitions to all other available non-judicial avenues have been resolved”, which were accepted and the paragraph was adopted.  One Expert raised concerns about the translation into French of “private pardon”.  

Concerning paragraph 51 on pardon or commutation, which overlapped to an extent with paragraph 50, Mr. Shany said the focus here was to ensure that individuals sentenced to death could seek pardon or commutation.  One State had pointed out that there was no obligation to “grant” pardon but there was an obligation to “consider” pardon.  He also suggested adding “according to applicable procedures” at the end of the first sentence.  One Expert said there was a duplication between paragraphs 50 and 51, but Mr. Shany said there was an overlap, but the former dealt with exhaustion of all judicial appeals while the latter dealt with the need to provide a procedure.  The paragraph was thus adopted  

As for paragraph 52, Mr. Shany said it dealt with the application of the death penalty for crimes committed by minors and on pregnant women.  Most comments regretted the removal of the reference to the “foetus” but the Committee had decided not to dwell with too much detail in general comments, especially when issues were controversial among different parties.  Japan suggested to change the wording of the first sentence to refer to “prohibit imposing the death penalty for crimes committed by persons below the age of 18 and carrying out the death penalty on pregnant women” to align the wording with that in the Covenant.  Mr. Shany agreed with the suggestion and the paragraph was adopted.

With regard to paragraph 53, which dealt with other categories of persons where the application of the death penalty could be arbitrary, Mr. Shany said a number of States and others had made suggestions.  For instance, Egypt wanted to remove the paragraph because it introduced language not present in the Covenant.  This draft  General Comment was the Committee’s interpretation of the Covenant and he believed the paragraph should remain.  One non-governmental organization suggested adding “persons who were victims of gender-based violence” to the category of individuals who had limited ability to defend themselves on an equal basis with others, as well as victims of trafficking.  He suggested accepting to add those two categories of persons, and also amending the first sentence to “States parties must refrain from imposing the death penalty on individuals who face special barriers to defend themselves …”, instead of “individuals who have limited ability to defend themselves”.  The paragraph was adopted.

Mr. Shany said paragraphs 54 and 55 were very important, laying out the general approach that the Committee offered on the death penalty.  In paragraph 54, the Committee stated its position that the death penalty could not be reconciled with full respect for the right to life.  He did not suggest any changes to paragraph 54.  One Expert said they should remove the wording “de facto and de jure” in the first sentence, while another suggested removing the first sentence in response to the objections by the United States and Japan.  Mr. Shany said unfortunately they could not satisfy all concerns and suggested the sentence remain unchanged.

On paragraph 55, Mr. Shany said it dealt with opening the door to reconsidering the question of whether the death penalty was a cruel, inhuman or degrading punishment.  Canada, Namibia, New Zealand and France supported the paragraph, while Japan suggested that the paragraph be deleted as there was no international consensus on the matter.  He suggested that they change “considerable progress has been made” to “considerable progress may have been made”.   Mr. Shany suggested adding reference to the African Commission’s general comment on this matter.  The paragraph was adopted, thus concluding consideration of part four of the draft General Comment on the imposition of the death penalty.

Mr. Shany said they were now starting part five of the draft General Comment on the relationship of article 6 with other articles of the Covenant and other legal regimes.  Paragraph 56 dealt with the general idea of overlap and interaction.  He did not suggest accepting proposals made on this paragraph.  The Committee decided to continue discussion on this paragraph at a future meeting.  
 
The drafting of the General Comment started on 14 July 2015 with a half day of general discussion, and the first reading of the draft was completed at the Committee’s one hundred and twentieth session in July 2017.  The second reading of the draft started on 27 October 2017 (summary), and was followed by discussions on 1 November 2017 (summary), 2 November 2017 (summary), 28 March 2018 (summary), 5 April 2018 (summary), 3 July 2018 (summary), 6 July 2018 (summary), 18 July 2018 (summary), and on 24 July 2018 (summary).  Further information about draft General Comment No. 36 can be obtained here.

The Committee will next meet in public at 5 p.m. on Friday, 27 July to conclude its one hundred and twenty-third session.

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