Arbitrary Executions in Human Rights Law: A Note from Dr. Agnes Callamard, Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions
Why are many, if not the majority, of death penalty cases amounting to arbitrary executions?
International law imposes severe restrictions on the use of death penalty and demands strict safeguards. Non-compliance with these restrictions and safeguards leads to arbitrary and thus unlawful deprivation of life.
The imposition of the death penalty in a manner that is contrary to another provision of the International Convenant on Civil or Political Rights (e.g. fair trial, prohibition against torture, prohibition against discrimination, etc.) would automatically translate into the execution being deemed arbitrary.
The fact that death penalty is carried out through a legal process does NOT make it lawful under international law. Only full respect for stringent due process guarantees distinguishes capital punishment as possibly permitted under international law from an arbitrary execution.
In particular:
- Death penalty may only be imposed when the guilt of the person charged is based upon clear and convincing evidence leaving no room for an alternative explanation of the facts. Death penalty carried out in circumstances where there are any doubts, even small, regarding the evidence provided will render the execution arbitrary.
- Death penalty carried out on the basis of confessions extracted under torture or ill treatment would inevitably render the execution arbitrary in nature.
- Death Penalty many only be imposed for the “most serious crimes,” which has been translated to mean intentional killing. Death penalty imposed for a crime other than intentional killing will result in the execution being arbitrary in nature.
- Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence and amnesty, pardon or commutation of the sentence of death may be granted. Any death sentence carried out BEFORE such rights have been exercised will render the execution arbitrary.
- Capital punishment shall not be carried out pending any appeal or other recourse procedure. If it is nevertheless carried out, it would amount to an arbitrary execution.
- Capital punishment carried out in a manner that amounts to torture or ill treatment would inevitably render the execution arbitrary in nature.
- Death penalty carried out against individuals who were children (under 18 years old) at the time of the crime, or people with mental disability, is prohibited. If carried out, such execution will be arbitrary.
In 2018, the Human Rights Committee clearly concluded that “the death penalty cannot be reconciled with full respect for the right to life, and abolition of the death penalty is both desirable and necessary for the enhancement of human dignity and progressive development of human rights”.