Published: 12 October 2017 Author: Stefan Talmon
On 10 October 2017, the World Day against the Death Penalty, the Foreign Minister of Germany together with his colleagues from Austria, Liechtenstein, Luxembourg, Slovenia and Switzerland, published the following opinion piece:
“Today, on this World Day against the Death Penalty, we reaffirm our commitment to the universal abolition of the death penalty.
On the positive side, we have been witnessing a worldwide trend towards restricting and abolishing the death penalty for decades. Of the 193 UN member states, only 36, or just under 20%, still apply the death penalty. Whereas the death penalty was still the rule in the 1980s, today it is the exception. This cruel form of punishment is now almost banished from Europe – with one exception. It is time for Belarus to also cease executions and free all of Europe from the death penalty – forever.
We note with concern, however, that some countries in the world are seriously discussing the reintroduction of the death penalty and that executions are being resumed in other countries after longstanding moratoriums. This is contrary to the global trend and to some extent contravenes international law. We call on all states to comply with their international obligations and respect the spirit of the International Covenant on Civil and Political Rights, which provides for a progressive abolition of the death penalty.
Many people in this world still live in states where they face the threat of the death penalty. They run the risk of being arbitrarily or even falsely sentenced to death and executed. It is often poor people who are punished with death because they lack the means to defend themselves effectively against accusations. With the theme ‘Poverty and justice – a deadly mix’ we draw attention to this injustice on this World Day against the Death Penalty. Members of ethnic, religious or sexual minorities are also more likely to be victims of the death penalty. In resolutions that we have recently adopted in the UN Human Rights Council, we call on states that have not yet abolished the death penalty to eliminate discrimination and inequality of treatment through the death penalty and not to apply capital punishment under any circumstances to persons who were minors at the time of their offence, persons with mental or intellectual disabilities, or pregnant women.
Irrespective of whether it is applied in a discriminatory manner, whether it is applied to convicted persons who are actually innocent, and whether it is used to eliminate political opponents or not – the death penalty is incompatible with our understanding of human rights. Our national laws prohibit the death penalty. In ratifying the relevant additional protocols to the European Convention on Human Rights and the International Covenant on Civil and Political Rights, we have committed ourselves internationally to never again impose or enforce the death penalty. 85 states have taken the same path and committed themselves to abolishing the death penalty in the Second Optional Protocol to the International Covenant on Civil and Political Rights.
Whoever thinks that the death penalty is a means of combating violence, crime and terrorism, we oppose that view as follows: scientific studies show that neither criminals nor terrorists can be deterred by the death penalty. Instead of preventing violence, the death penalty creates even more violence. It may satisfy the desire for retribution, but in no way does it make amends for the loss suffered by the victims of crime and their families. The death penalty exacerbates the problems rather than solving them.
We are committed to ensuring that the dignity and human rights of each individual human being are protected, not only in our own countries, not just in Europe, but throughout the world. In our view, the death penalty is symbolic of the countless violations of human rights in today’s world. The death penalty has no place in the 21st century.
In dialogue with the countries concerned, we will work to ensure that the death penalty is restricted and abolished. Achieving a universal moratorium would be an important step towards that goal. We will continue to raise the issue of the death penalty in multilateral forums and promote global and regional initiatives for its abolition. We give recognition to and support the efforts of committed women and men from civil society, politics, justice, science and culture around the world. Together we will strive for a world without the death penalty.”
Germany has been campaigning for years for the abolition of the death penalty. The present statement must thus be regarded more as an abolitionist campaign statement than a statement on international law. In terms of international law the statement seems rather tendentious and manipulative. While it is true that only 36 out of 193 UN member States still apply the death penalty, it is equally true that only 85 out of 193 UN member States – a clear minority of States – have formally committed themselves to abolishing the death penalty in time of peace, with even less States ruling out the application of the death penalty in time of war.
In the statement, Germany asserts that the reintroduction of the death penalty and the resumption of executions in countries with longstanding moratoriums “to some extent contravenes international law”. The statement does not specify to what extent or in which way the reintroduction of the death penalty or the resumption of executions in countries with longstanding moratoriums contravenes international law.
While “the spirit” of the International Covenant on Civil and Political Rights may well provide for a progressive abolition of the death penalty, the fact is that Article 6, paragraph 2, of the Covenant, subject to certain substantive, procedural and personal limitations, expressly contemplates the possibility of the death penalty both in time of peace and in time of war.
The death penalty is also not outlawed under general customary international law, although it is today widely accepted that the death penalty may not be imposed for crimes committed by persons below the age of eighteen and may not be carried out on pregnant women and on persons with mental disabilities. States can thus only be prevented from reintroducing the death penalty or resuming executions either by their international treaty commitments to abolish the death penalty or by unilateral declarations capable of creating a legal obligation not to apply the death penalty. Even States that have committed themselves not to apply the death penalty may, at least in theory, denounce the relevant international agreements concerning the abolition of the death penalty or revoke their unilateral declaration of a moratorium.
The death penalty may well be incompatible with Germany’s and other European countries’ understanding of human rights, in international law it is not the “understanding” of a certain State or group of States that is determinative of customary international law. As long as a substantial number of States maintain the death penalty, including Algeria, Belarus, China, India, Iran, Nigeria, Pakistan, Saudi Arabia, Thailand, Vietnam and the United States, general international law will have to reflect that reality.
Category: Human rights