3. JUSTIFYING THE DEATH PENALTY
3.1 Restricted Use
3.1.1 Most serious crimes
3.1.1 Most serious crimes
A large number of States rely on the death penalty applying only to the “most serious crimes” as an indication of compliance with international law. This restriction, as outlined in Part 2, is central to the death penalty’s adherence to human rights standards. Indeed, the ECOSOC’s Safeguards declare first and foremost that crimes which attract the death penalty must be intentional and carry lethal or extremely grave consequences.94 However the justification that the death penalty is only applied to the
“most serious crimes” is often inconsistent with international law, and in some cases reality. Despite this, it is regularly put forward as a justification by retentionist States within the UPR framework.
China maintained in its national report that the death penalty was only applied to the most serious crimes.95 These crimes include a broad range of crimes against the state, drug related offences and other non-fatal crimes such as rape, burglary and kidnapping.96 It should be noted that China
abolished 13 economic related crimes as part of broader criminal justice reforms. China relied on this development as evidence of the restriction of the death penalty.97 Cuba reiterated the application of the death penalty only in the most serious cases.98 Similar to that of China, Cuba retains the death penalty for a number of non-fatal crimes, including robbery, rape, drug offences, and crimes against the state.99 Cuba stated as part of its national report in the second cycle that its imposition of the death
93 See Appendix 1.
94 ECOSOC Safeguards.
95 China Working Group, 3 March 2009, A/HRC/11/25, para.43.
96 Death Penalty Worldwide, http://www.deathpenaltyworldwide.org/country-search-post.cfm?country=China
97 China National Report, 5 August 2013, A/HRC/WG.6/17/CHN/1, para.46.
98 Cuba National Report, 4 November 2008, A/HRC/WG.6/4/CUB/1 para.39.
99 http://www.deathpenaltyworldwide.org/country-search-post.cfm?country=Cuba
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penalty was “in line with UN provisions”.100 A large number of States raised the death penalty’s restriction to “most serious crimes” as justification for its continued use, including Iraq,101 Jordan,102 Sri Lanka,103 Malaysia,104 Myanmar,105 Oman,106 Saudi Arabia,107 Pakistan,108 Iran,109 Yemen110, USA,111 Viet Nam,112 Zambia,113 Sudan,114 and Singapore.115 In all these cases the death penalty is applied to a number of non-fatal crimes. Egypt stated that its legislation provides for the death penalty in only the most serious cases, including murder and rape.116 This was reiterated again as part of the second cycle, in which Egypt stated that the death penalty continued to be restricted to very serious crimes.117 Despite multiple regime changes, the crimes still cover a broad number of non-fatal offences, such as perjury, abduction, drug trafficking and possession of weapons and ammunition.118 Guinea states that it only applies the death penalty for the most serious crimes, including offences that cause public outrage.119 It is utilised in Guinea as a punitive measure for female genital mutilation.120 In reality, kidnapping and arson are also subject to the death penalty.121
The mercurial nature of the threshold of “most serious crimes” is immediately apparent, and is further complicated by the adoption of language that varies from the chosen wording of the ICCPR. India defends its use of the death penalty in its state report, stating that it applies death penalty in the “rarest of rare” cases for crimes “that shock the conscience of society.122 These crimes include, rape,
100 Cuba National Report, 7 February 2013, A/HRC/WG.6/16/CUB/1, paras 97-99.
101 Iraq National Report, 18 January 2010, A/HRC/WG.6/7/IRQ/1, para.115; Iraq National Report, 22 August 2014, A/HRC/WG.6/20/IRQ/1, para.10.
102 Jordan National Report, 9 February 2009, A/HRC/WG.6/4/JOR/1, p.5; Jordan Working Group, 3 March 2009, A/HRC/11/29, para.17.
103 Sri Lanka National Report, 2 May 2008, A/HRC/WG.6/2/LKA/1, para.59.
104 Malaysia National Report, 19 November 2008, A/HRC/WG.6/4/MYS/1/Rev.1, para.89; Malaysia National Report, 6 August 2013, A/HRC/WG.6/17/MYS/1, para.45.
105 Myanmar National Report, 10 November 2010, A/HRC/WG.6/10/MMR/1, para.37.
106 Oman National Report, 18 November 2010, A/HRC/WG.6/10/OMN/1, paras 76, 77.
107 Saudi Arabia Working Group, 26 December 2013, A/HRC/25/3, para.97.
108 Pakistan Working Group, 4 June 2008, A/HRC/8/42, para.47.
109 Iran Working Group Addendum, 4 June 2010, A/HRC/14/12/Add.1, para.18.
110 Yemen Working Group, 5 June 2009, A/HRC/12/13, para.9.
111 United States of America National Report, 23 August 2010, A/HRC/WG.6/9/USA/1, para.61; United States of America National Report, 13 February 2015, A/HRC/WG.6/22/USA/1, para.49.
112 Viet Nam National Report, 16 February 2009, A/HRC/WG.6/5/VNM/1, para.83.
113 Zambia National Report, 9 April 2008, A/HRC/WG.6/2/ZMB/1, para.23.
114 Sudan National Report, 11 March 2011, A/HRC/WG.6/11/SDN/1, para.124.
115 Singapore National Report, 2 February 2011, A/HRC/WG.6/11/SGP/1, para.120; Singapore Working Group, 11 July 2011, A/HRC/18/11, para.87.
116 Egypt National Report, 16 November 2009, A/HRC/WG.6/7/EGY/1, p.7; Egypt Working Group, 26 March 2010, A/HRC/14/17, para.93.
117 Egypt Working Group, 24 December 2014, A/HRC/28/16, para.118.
118 Egypt – Amnesty International Submission to UN UPR, 1 September 2009, p.3.
119 Guinea State Report 2010, para 124; Guinea Working Group 2010, para 11.
120 Guinea Working Group 2010, para 22.
121 http://www.deathpenaltyworldwide.org/country-search-post.cfm?country=Guinea.
122 India National Report, 8 March 2012, A/HRC/WG.6/13/IND/1, para.28.
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kidnapping and drug trafficking.123 Indonesia states that it only applies the death penalty to “very serious crimes”,124 including robbery, economic crimes, treason and espionage.125 The threshold of
“most heinous crimes” was adopted by a number of States, including Tonga126, Bangladesh,127 Saint Kitts and Nevis,128 Saint Lucia,129 and Saint Vincent and Grenadines130. Of these six States, only Tonga and Bangladesh apply the death penalty to non-fatal offences. The Democratic Republic of the Congo, (“DRC”) in making direct reference to the right to life, stated that such a right was only abrogated under exceptional circumstances.131 Such circumstances include crimes of armed robbery, drug possession and trafficking, crimes against the state, and some economic offences.132 Eritrea states that the death penalty applied only in extreme and limited cases.133 It is certainly the case that many death penalty crimes in Eritrea require that the offending be of “exceptional gravity”, however their death penalty still applies to crimes such as robbery, crimes against the state, and economic crimes.134
A large number of States rely on the restriction of the death penalty to only the “most serious crimes”, or variations thereof, as a justification for retaining the death penalty.135 However, for nearly every State that has raised such a justification as part of the UPR, the reality is that the domestic laws and practice of the State are in contravention of international law. A number of States utilise the death penalty in relation to drug offending. This is particularly the case in the South-East Asian region.136 However, drug offences do not satisfy the threshold of “most serious crimes” under international law.137 Obtaining a clear and consistent definition of what satisfies the criteria of the “most serious
123 http://www.deathpenaltyworldwide.org/country-search-post.cfm?country=India.
124 Indonesia Working Group Addendum, 16 June 2008, A/HRC/8/23/Add.1, para.10; Indonesia Working Group Addendum, 5 September 2012, A/HRC/21/7/Add.1, p.3.
125 http://www.deathpenaltyworldwide.org/country-search-post.cfm?country=Indonesia.
126 Tonga Working Group, 5 June 2008, A/HRC/8/48, para.34; Tonga Working Group Addendum, 3 June 2014, A/HRC/23/4/Add.1, para.14.
127 Bangladesh Working Group, 3 March 2009, A/HRC/11/18, para.62.
128 Saint Kitts and Nevis, 15 March 2011, A/HRC/17/12, para.10.
129 Saint Lucia Working Group, 11 March 2011, A/HRC/17/6, para.38.
130 Saint Vincent and the Grenadines Working Group, 11 July 2011, A/HRC/18/15, para.35.
131 Democratic Republic of the Congo National Report, 3 September 2009, A/HRC/WG.6/6/COD/1, para.36.
132 http://www.deathpenaltyworldwide.org/country-search-post.cfm?country=Democratic+Republic+of+the+Congo.
133 Eritrea Working Group Addendum, 8 March 2010, A/HRC/13/2/Add.1, p.2; Eritrea Working Group, 7 April 2014, A/HRC/26/13, para.94.
134 http://www.deathpenaltyworldwide.org/country-search-post.cfm?country=Eritrea.
135 Lines R (2010) A Most Serious Crime? – The Death Penalty for Drug Offences and International Human Rights Law. Amicus Journal 21; as cited in Schabas W. (2010), Death Penalty for Drug Offences, Irish Centre for Human Rights, fn.13.
136 States such as Indonesia, Singapore, Malaysia, Thailand, Vietnam, see OHCHR (2014), Moving Away From the Death Penalty: Lessons in South-East Asia, p.23.
137 See Schabas W. (2010), Death Penalty for Drug Offences; Lines, R. (2007). The Death Penalty for Drug Offences: A violation of International Law, International Harm Reduction Association, London.
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crimes” is a complex question, 138 and has been subject to change over time.139 As outlined in part 2, the ECOSOC’s Safeguards state that such crimes “should not go beyond intentional crimes with lethal or other extremely grave consequences.”140 The UN Special Rapporteur on extrajudicial, summary or arbitrary executions adopted a clearer and more restrictive approach, stating that the death penalty should be limited to cases “where it can be shown that there was an intention to kill which resulted in the loss of life”.141 Far more recently, the Special Rapporteur has stated that international law
prohibits the death penalty being applied to drug offences.142
While the question of whether drug offences meet the criteria of “most serious crimes” treads a thin interpretative line, there is no question that political, economic and other non-fatal crimes fall well short. In a report by the Secretary-General, he declared that the most serious crimes were restricted to murder or intentional killings, and denounced the use of the death penalty for not only drug offences, but also political, economic, adultery and same-sex offences.143 Despite Iran, Yemen and Pakistan maintaining that they only apply the death penalty to the “most serious crimes”, the reality is that in all three countries the death penalty is applied to conduct that should not be criminalised at all, namely apostasy, adultery and same-sex relations.144 To impose the death penalty for such conduct is clearly in violation of the right to life under the ICCPR.145 Under the UPR there is a cognitive dissonance in relation to the legal standard of “most serious crimes”. The fact that retentionist States rely on it as an indication of compliance with international human rights standards, despite applying the death penalty to a broad selection of non-fatal crimes, points to a stark misapprehension of its legal meaning.
It is also the case that statements by retentionist States within the UPR framework are not always frank regarding the full extent of the crimes that attract the death penalty. This stems from a larger issue of transparency when it comes to the practice of the death penalty worldwide.146 The Democratic
138 Roger Hood, The Enigma of the Most Serious Offences, Sino-British Seminar on the Application Standards and Limitations of the Death Penalty, Beijing, March 2005.
139 Indeed, it is argued that the rejection of the death penalty by international criminal tribunals is evidence that not even the most serious of crimes, such as genocide, permits the death penalty. Prokosch, E. (2004).
The Death Penalty versus Human Rights, in Death Penalty: Beyond Abolition, Council of Europe Publishing, Strasbourg, p.28; See also, Schabas (2002), p.110.
140 ECOSOC Safeguards.
141 UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Report to Commission on Human Rights, E/CN.4/1997/60, 24 December 1996. para.91.
142 UN Human Rights Council, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, A/HRC/11/2/Add.1, 29 May 2009, p.188.
143 General Assembly, Report of the Secretary- General, Question of the death penalty, UN Doc. A/HRC/24/18, 1 July 2013, p.7.
144 Iran Follow-up Report, 2012, para.74; post.cfm?country=Yemen;
http://www.deathpenaltyworldwide.org/country-search-post.cfm?country=pakistan#f84-3
145 OHCHR (2014), Moving Away From the Death Penalty, p.10.
146 OHCHR (2014), Moving Away From the Death Penalty, p.15.
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People’s Republic of Korea (“DPRK”) stated that only five categories of offences carried the death penalty, and in restricted cases.147 Establishing a concrete set of laws for which the death penalty is imposed under domestic laws in the DPRK is exceptionally difficult, particularly given the fact that it is believed to conduct extra-judicial killings.148 However, some definite offences include crimes against the state, kidnapping, rape and drug offences.149 Examples such as the DPRK, while extreme, are demonstrative of such a practice. A less severe example can be found in Dominica which did not disclose as part of its report that treason was also subject to the death penalty under its domestic law.150 While Gambia stated that the death penalty was limited to murder and treason, when in fact it also applies to non-fatal crimes of treason.151 Furthermore, the crimes classified as murder in Gambia have a lower standard of intent than is required under international law.152 In a more severe case, Qatar stated that only murder is subject to the death penalty.153 However, in Qatar the death penalty applies to a large number of offences that are non-fatal, including rape, drug offences and economic crimes.154 Whether such inaccuracies are symptoms of an active desire to mislead, or simply an error in reporting, is difficult to establish. Regardless, it is a further example of the rift between the restrictions on the death penalty relied upon by States within the UPR, and reality.
A small number of States’ reliance on the restriction of the death penalty to “most serious crimes”
complies with both the law and reality.155 For example, Jamaica retains the death penalty for the
“most egregious” forms of murder.156 This complies with international law and reality, given that no
147 Democratic Peoples’ Republic of Korea National Report, 27 August 2009, A/HRC/WG.6/6/PRK/1, para.34;
Democratic Peoples’ Republic of Korea National Report, 30 January 2014, A/HRC/WG.6/19/PRK/1, para.30.
148 UN Human Rights Council, Report of the commission of inquiry on human rights in the Democratic Perople’s Republic of Korea, A/HRC/25/63, 7 February 2014; Amnesty International, Annual Report: North Korea 2013 http://www.amnestyusa.org/research/reports/annual-report-north-korea-2013?page=show; Reuters, North Korea execute official for blunder, 18 March 2010, available at:
http://www.reuters.com/article/2010/03/18/us-korea-north-currency-idUSTRE62H0DT20100318
149 http://www.deathpenaltyworldwide.org/country-search-post.cfm?country=North+Korea
150 Dominica Working Group, 5 May 2014, A/HRC/WG.6/19/L.7, para.15; Dominica Summary of Stakeholder Information, 14 January 2014, A/HRC/WG.6/19/DMA/3, para.13.
151 Gambia National Report, 20 January 2010, A/HRC/WG.6/7/GMB/1, para.12; Gambia Working Group, 24 March 2010, A/HRC/14/6, para.7; Gambia State Report, 24 July 2014, A/HRC/WG.6/20/GMB/1, paras 136-138; Gambia Working Group, 24 December 2014, A/HRC/28/6, p.5;
http://www.deathpenaltyworldwide.org/country-search-post.cfm?country=Gambia
152 The ECOSOC Safeguards state that the crimes must be intentional, whereas “the Criminal Code classifies as
“murder” offenses which do not meet the usual requirement that the offender have an actual (as opposed to a deemed) intent to kill”, see
http://www.deathpenaltyworldwide.org/country-search-post.cfm?country=Gambia
153 Qatar Working Group, 27 June 2014, A/HRC/27/15, para.71.
154 http://www.deathpenaltyworldwide.org/country-search-post.cfm?country=Qatar#a69-3
155 Jamaica, Saint Kitts and Nevis, Saint Lucia, and Saint Vincent and Grenadines all relied on the restriction of the death penalty to serious crimes.
156 Jamaica Working Group, 4 January 2011, A/HRC/16/14, para.36.
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further offences attract the death penalty.157 However, the vast majority of justifications provided by States in the context of the UPR do not adhere with reality or international law. Particularly
justifications such as that of Singapore, which is based on the fact that drug offences are culturally considered to be among the most serious crimes.158 This type of cultural or contextual justification is common. However, the Special Rapporteur on extrajudicial, arbitrary or summary executions has stated that this sort of contextual consideration is invalid. The concept of most serious offences is not one that can bend according to culture.159 To make interpretations in relation to culture would be directly contradictory to the universality of human rights.160