Human Rights Council holds biennial high-level panel discussion on the death penalty

AFTERNOON
GENEVA (1 March 2017) - The Human Rights Council this afternoon held its biennial high-level panel discussion on the death penalty, focusing on human rights violations related to the use of the death penalty, in particular with respect to the prohibition of torture and other cruel, inhuman or degrading treatment or punishment. 
 
Joaquín Alexander Maza Martelli, President of the Human Rights Council, said the 2017 panel discussion would address human rights violations related to the use of the death penalty, in particular with respect to the prohibition of torture and other cruel, inhuman or degrading treatment or punishment. 
 
Zeid Ra’ad Al Hussein, United Nations High Commissioner for Human Rights, stressed that capital punishment raised serious issues in relation to the dignity and rights of all human beings, including not only the right to life, but also to the right not to be subjected to torture or to cruel, inhuman or degrading treatment.  
 
Harlem Désir, Minister of European Affairs of France, said that some were trying to justify the death penalty with a view to security concerns, however, renouncing the death penalty did not preclude a response to terrorism.  Because the universal abolition of the death penalty required the mobilization of all actors, he commended civil society with which France would continue to work tirelessly to achieve that goal. 
 
Verene A. Shepherd, Professor of Social History at the University of the West Indies, served as the discussion moderator.  The panellists were Moncef Marzouki, former President of Tunisia; Kagwiria Mbogori, Chairperson of the Kenya National Commission on Human Rights; Seree Nonthasoot, Thailand Representative to the ASEAN Intergovernmental Commission on Human Rights; and Nils Melzer, Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment.
 
Verene A. Shepherd, Professor of Social History at the University of the West Indies and discussion moderator, warned that in many countries where people had been sentenced to death or executed, the proceedings had not met international fair trial standards.  Furthermore, people had continued to be sentenced to death or executed for offences that did not meet the “most serious crimes” threshold of “intentional killing” as set out in international law and standards.
 
Moncef Marzouki, former President of Tunisia, said he had supported proposals to commute sentences to life imprisonment in Tunisia and that he had wanted Tunisia to be the first Arab country to include the abolition of the death penalty in its constitution.  He had wanted to join advanced countries toward this end but there were several obstacles, namely security, religious and cultural ones.   
 
Kagwiria Mbogori, Chairperson of the Kenya National Commission on Human Rights, explained that the prescribed method of execution in Kenya was death by hanging, but a de facto moratorium had been in effect since the 1980s, leading to prison overcrowding.  Courts continued to sentence prisoners to death because there was no alternative punishment. 
 
Seree Nonthasoot, Thailand Representative to the ASEAN Intergovernmental Commission on Human Rights, said that the lack of transparency constituted degrading and inhuman treatment of the prisoner, but also of family members.  It was symptomatic of the lack of the rule of law and justice system in general.  The mandatory death penalty without an opportunity for mitigating factors violated the rights of defendants and directly contravened the right to life.
 
Nils Melzer, Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, said that the increasingly rigorous conditions imposed by the evolving legal opinion of the international community made it almost impossible to practice the death penalty without violating the ius cogens prohibition of torture and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
 
In the ensuing discussion, speakers stressed the well documented link between the death penalty and torture and ill treatment.  Capital punishment represented a threat to the right to life and human dignity.  The threat of terrorism should not lead to unilateralism in order to produce an increasingly fair justice system.  Cooperation at the international and national levels was crucial in establishing a universal moratorium on the death penalty.  On the other hand, some speakers warned that any simplistic approach to characterize the death penalty as a human rights issue in the context of the right to life of the convicted prisoner was deeply flawed and controversial. 
 
Taking the floor were Botswana, Chile, European Union, Mexico on behalf of a group of countries, Brazil on behalf of a group of countries, Croatia on behalf of a group of countries, Finland on behalf of Nordic Countries, Singapore, Portugal on behalf of the Community of Portuguese-Speaking Countries, Paraguay, Montenegro, Australia, Greece, Spain, Argentina, Portugal, Mexico, New Zealand, Switzerland, Albania, Liechtenstein, Colombia, Algeria, Fiji, Council of Europe, Papua New Guinea, India, Holy See, Kenya, and Italy.
 
Also taking the floor were the following civil society organizations:  Amnesty International, American Civil Liberties Union, Centre for Global Nonkilling, International Federation of Action Christians for the Abolition of Torture, Friends World Committee for Consultation, Ensemble contre la Peine de Mort, and International Bar Association.
 
Egypt spoke in a point of clarification.
 
The Council will resume its work at 9 a.m. on Thursday, 2 March, for a full day of meetings.  First, it will hold a panel discussion on climate change and the rights of the child.  At noon, it will resume its interactive dialogue with experts on foreign debt and adequate housing, whose reports it heard today. 
 
Opening Statements
 
JOAQUÍN ALEXANDER MAZA MARTELLI, President of the Human Rights Council, opened the biennial high-level panel discussion on the death penalty, reminding that in its resolution 26/2, adopted in June 2014, the Human Rights Council had decided to convene biennial high-level panel discussions in order to further the exchange of views on that question.  In resolution 30/5 the Council had decided that the 2017 panel discussion would address the human rights violations related to the use of the death penalty, in particular with respect to the prohibition of torture and other cruel, inhuman or degrading treatment or punishment. 
 
ZEID RA’AD AL HUSSEIN, United Nations High Commissioner for Human Rights stressed that capital punishment raised serious issues in relation to the dignity and rights of all human beings, including not only the right to life, but also to the right not to be subjected to torture or to cruel, inhuman or degrading treatment.  For many decades, and in increasingly large numbers, judicial bodies at the national level and across the globe had held that the death penalty per se violated the prohibition of torture, cruel inhuman or degrading treatment.  Several methods of execution were likely to violate prohibition of torture because of the pain and suffering that they were likely to inflict to the convicted person, while the long and highly stressful period that most individuals endured while waiting on “death row” for years or decades had also been referenced as constituting torture, or cruel, inhumane and degrading treatment.  When the authorities failed to give adequate information about the timing of the execution, they maintained the convicted person and that person’s family members in permanent anticipation of imminent death; such acute mental distress, compounded by a failure to return the body for burial, was unjustifiable.
 
It had been 10 years since the General Assembly resolution urging States to adopt a moratorium on the use of the death penalty, with a view of its abolition.  In those 10 years, the global trend against capital punishment had become increasingly strong and today, almost three out of four countries had either abolished the death penalty or did not practice it.  However, reasons for concern remained: the overall number of executions in States that continued to resort to the death penalty had increased in the last two years, and some States in which a moratorium had been in place for many years had recently resumed executions.  High Commissioner Zeid asked all States to end the use of the death penalty, and also urged businesses and private companies to act in accordance with their human rights responsibilities as set out in the Guiding Principles on Business and Human Rights.
 
HARLEM DÉSIR, Minister of State for European Affairs at the Ministry of Foreign Affairs and International Development of France, said that today some were trying to justify the death penalty in the context of security concerns, however, renouncing the death penalty did not preclude a response to terrorism.  Capital punishment was inhumane and ineffective.  Because the universal abolition of the death penalty required the mobilization of all actors, Mr. Désir commended civil society with which France would continue to work tirelessly to achieve that goal.  International law did not explicitly equate the death penalty with torture, but for France, the right to life was incompatible with the death penalty, which was contradictory to human dignity.  The European Court of Human Rights had spoken out about that effect.  The fact that the situation was a political struggle was the reason France was working for universal abolition, in the same way the country had struggled against torture.  Two-thirds of the States of the world had renounced the death penalty de jure or de facto.  Progress on the African continent was encouraging.  The death penalty was not a question of culture but of principle, stressed Mr. Désir, which was why France would remain mobilized multilaterally for the universal abolition of the death penalty.
 
Statements by Panel Moderator and Panellists
 
VERENE A. SHEPHERD, Professor of Social History at the University of the West Indies and discussion moderator, commended the fact that more than 160 countries had either abolished the death penalty, had imposed a moratorium or a de facto moratorium on it, or did not actually practice it.  There was often class and racial discrimination in the application of the death penalty, with the poor, the marginalized and the mentally challenged being most likely to suffer that fate.  The psychological harm that the death penalty had on others and the potential for a wrongful conviction and execution was precisely why international norms required such exacting standards and a heightened level of due process in capital punishment cases.  In many countries where people had been sentenced to death or executed, the proceedings had not met international fair trial standards; in some cases that included extraction of confessions through torture or other ill-treatment.  Furthermore, people continued to be sentenced to death or executed for offences that did not meet the “most serious crimes” threshold of “intentional killing” as set out in international law and standards.  Those offences included drug-related crimes as well as committing “adultery” and economic crimes. 
 
MONCEF MARZOUKI, Former President of Tunisia, said that in Tunisia he had supported proposals to commute capital punishment sentences to life imprisonment, and he had wanted Tunisia to be the first Arab country to include abolition of the death penalty in its constitution.  He had wanted to join advanced countries toward that end, but there were several obstacles on the way.  The overall climate had been tricky because assassinations of security forces had been taking place at that time, making it difficult to promote the idea. There had also been a problem in the political balance as the Islamists rejected the ideology and secular rivals did not want the President to sponsor the idea.  The third obstacle had been a cultural one.  The public wanted to retain the death penalty because it was contained in the Koran.  However, if one did not read the Koran literally, one would understand that killing a person was like killing all of mankind.  No country in the Arab world had abolished the death penalty, but Tunisia belonged to one third of countries that had applied a moratorium.  Mr. Marzouki said that he and his allies were still fighting a political and cultural battle and hoped that it would be successful, as they believed it was the natural trajectory of humanity.
 
KAGWIRIA MBOGORI, Chairperson of the Kenya National Commission on Human Rights, said that the prescribed method of execution in Kenya was death by hanging, but a de facto moratorium had been in effect since the 1980s.  The result had been overcrowding in the blocs reserved for condemned prisoners.  Successive Kenyan Presidents had commuted numerous death sentences to life in prison.  Kenya had taken measures regarding the death penalty, but responsibility lay with the legislature.  Courts continued to sentence prisoners to death because there was no alternative punishment.  Opinions had been issued alleging that mandatory death sentences were antithetical to the Kenyan constitution; that was the scene for abolition work in Kenya.  Although some death row inmates had been relieved to have their sentences commuted, some had refused to be reintegrated, saying that they had been ready to die for years.  There was no humane way to extinguish a human life, stressed Ms. Mbogori.
 
VERENE A. SHEPHERD, Professor of Social History at the University of the West Indies and discussion moderator, reminded that many States in the Asian region and beyond still continued to use the death penalty in secrecy.  What was the impact of such a lack of transparency and what were the moves in the region to address that practice?  What actions and policies were the most effective in the long-term prevention of such actions in Southeast Asia?
 
SEREE NONTHASOOT, Thailand’s Representative to the ASEAN Intergovernmental Commission on Human Rights, opined that the lack of transparency constituted a degrading and inhuman treatment of the prisoner, but also of family members.  It was symptomatic of the lack of the rule of law and justice system in general.  Transparency entailed a clear set of regulatory frameworks and the provision of information at all stages, from a clear and fully disclosed reasoning of the death sentence to the procedure of seeking a pardon or commuting of the death penalty, and advanced notification of the execution following the denial of pardon.  If a death occurred in custody or in a prison, an investigation should be carried out to determine the cause of death.  Thailand was noted for having abolished the death penalty for minors and pregnant women, and for not having executed anyone in eight years.  The mandatory death penalty without an opportunity for mitigating factors violated the rights of defendants and directly contravened the right to life.  A court’s ability and capacity to consider the circumstances of the offence and offender rendered futile the investments that States had made in their courts of law.  With the increasingly worrying trend to re-introduce the death penalty, States had to recognize their obligations under international laws.  Mr. Nonthasoot called on States that had ratified such international treaties to abide by their obligations.   The use of the death penalty for crimes that did not constitute the most serious crimes did not address the root causes of crimes. 
 
VERENE A. SHEPARD, Professor of Social History at the University of the West Indies and discussion moderator, welcomed Nils Melzer, Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment.  She asked him whether there was an emergence of a customary norm prohibiting the use of the death penalty and how he viewed the failure of some States to sign or ratify the Convention against Torture.
 
NILS MELZER, Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, said that, in his view, customary international law had not yet evolved to the point where it would prohibit the death penalty in all circumstances. Therefore, at least theoretically it might still be possible to retain the death penalty in compliance with international law.  However, in actual practice, the increasingly rigorous conditions imposed by the evolving legal opinion of the international community made it almost impossible to practice the death penalty without violating the ius cogens prohibition of torture and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Discussion
 
Botswana said the death penalty was a criminal justice issue and its application for the most serious crimes was the sovereign right of individual States.  Chile welcomed progress achieved in the moratorium on the use of the death penalty, and noted that it had no place in modern policies to combat crime.  European Union said that it had imposed a ban on all chemicals that could kill people, asking whether the situation would possibly change if those responsible for condemning people to death were as close to the condemned people as their families and executioners were.  Mexico, speaking on behalf of a group of countries, said that the global trend was to move away from the death penalty, and welcomed the involvement of representatives of national human rights institutions in the discussion.  Brazil, speaking on behalf of a group of countries, stated that the majority of States worldwide had abolished the death penalty, noting that the Human Rights Council had recognized that all methods of execution could inflict pain and suffering.  Croatia, speaking on behalf of a group of countries, said that the death penalty was a cruel and inhuman punishment with no proven deterrent effect on crimes, and called for the progressive restriction of the death penalty.  Finland, speaking on behalf of a group of countries, said that the death penalty was a violation of the right to life, as it was a cruel, inhuman and degrading punishment, as well as being irreversible.  States still upholding the death penalty were urged to establish a moratorium with a view to abolition.
 
Singapore, speaking on behalf of a group of countries, said that the rights of the offenders had to always be weighed against the rights of their victims and their families.  For many countries, the death penalty remained an important component of their criminal justice systems.  Portugal, speaking on behalf of the Community of Portuguese-Speaking Countries, said that the abolition of the death penalty amounted to a basic principle and universal value shared by all Member States of the Community.  The Community was concerned by the increase in the number of executions in some countries, particularly for crimes related to drugs.  Paraguay stated that the right to life was one of the fundamental rights of all persons and it was reflected in Paraguay’s Constitution.  Paraguay underscored the importance of preserving human dignity and avoiding practices that undermined it.  Montenegro expressed unequivocal support for the universal abolition of the death penalty and called for a moratorium on the use of what was an outdated, cruel, unfair and ineffective form of punishment.  Montenegro was deeply concerned that a number of countries had expressed their intention to reintroduce the death penalty.  Australia said that it strongly supported a universal abolition of the death penalty and believed it was fundamentally incompatible with the right to life enshrined in the Universal Declaration of Human Rights.  However, a high proportion of States retained the death penalty in the Asia-Pacific.
 
Amnesty International opposed the death penalty in all cases without exception.  Its use was widespread in spite of the tenets of international law.  Any allegation of torture or ill-treatment should be investigated by independent bodies.  American Civil Liberties Union noted that the death penalty in the United States was a broken system from start to finish.  Death sentences were arbitrary, predicted not by the heinousness of the crime but by the poor quality of the defence lawyers, the race of the accused or the victim, and the place where the crime had occurred.  Centre for Global Non-killing stated that life was the greatest gift and accordingly there should be a virtuous cycle dedicated to preserving life.  States should be good examples of how the right to life was preserved.
 
Comments by the Panel Moderator and the Panellists
 
VERENE A. SHEPARD, Professor of Social History at the University of the West Indies and discussion moderator, asked the panellists to comment on the lack of compatibility between States’ constitutions and the death penalty.  She also asked whether and how the death penalty in the panellists’ view constituted torture, as well as to respond to the argument that the death penalty was a criminal law issue.
 
NILS MELZER, Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, said that the trend was towards abolition of the death penalty, and a separate trend was towards interpreting it as cruel and inhuman treatment.  Opposition to the death penalty might not yet be binding under customary law, but it was certainly an emerging law.
 
SEREE NONTHASOOT, Thailand Representative to the ASEAN Intergovernmental Commission on Human Rights, stated that there was a lack of data as well as a lack of transparency on how effective the death penalty had been.  Crime did not decrease with the introduction of the death penalty, and its application to a broad spectrum led to politicization.  Regarding the practicality of the death penalty, it was noted that some States simply denied extraditing the wrongdoer back to the country where the death penalty existed.  The role of the regional mechanisms in the Association of Southeast Asian Nations (ASEAN) provided a forum on how effective the death penalty had been.  It was acknowledged that some States felt uncomfortable about abolishing the death penalty altogether.
 
VERENE A. SHEPHERD, Professor of Social History at the University of the West Indies and discussion moderator, asked about the role of national human rights institutions in monitoring how national institutions complied with international law, for example in relation to torture, or extracting confession.  Also, what argument could be used to convince retentionist countries – a number of which were post-colonial countries – to abolish the death penalty, and increase their understanding that the death penalty was a remnant of the colonialism itself?
 
KAGWIRIA MBOGORI, Chairperson of the Kenya National Commission on Human Rights, said that monitoring trials fell under the mandate of national human rights institutions, but a number of challenges complicated their work in that regard: resources, capacity, and the inability to properly and effectively monitor criminal justice systems.  However, all national human rights institutions had complaint mechanisms, through which allegations of torture could be filed, which would prompt an investigation by the national institution. 
 
VERENE A. SHEPHERD, Professor of Social History at the University of the West Indies and discussion moderator, asked how contradictory positions with regard to the death penalty could be resolved.
 
Those who under no pressure will not wasn’t to do away, they are not open to debate, there needs to be huge international pressure, then others like me
 
MONCEF MARZOUKI, Former President of Tunisia, said that countries could be divided into two sorts: those which would never do away with the death penalty, such as Egypt; and others who were unable to abrogate capital punishment.  Each country should have a strategy in that regard.  The major issue was that in the Arab world, the society largely believed that the death penalty was an adequate punishment and a deterrent to crime, so there was much to be done in the education of the populations.  In many of those societies, religion was a problem as well, as the Koran clearly mentioned the death penalty; however, the Koran also mentioned that taking an innocent life was tantamount to claiming the life of the entire humanity, and that should be the message to spread among the people.  Pressure had to be put on religious institutions to lower their resistance to the death penalty.  The question was a political one: without democracy, the death penalty would continue to be practiced. 
 
VERENE A. SHEPARD, Professor of Social History at the University of the West Indies and discussion moderator, asked the panellists about the relationship between culture and the death penalty.
 
MONCEF MARZOUKI, Former President of Tunisia, noted that capital punishment should be an indicator of backwardness in every society.  As long as it was maintained, people should feel ashamed of their countries.  States that wanted to join the club of advanced countries might need that incentive.  Capital punishment was the worst form of torture and the worst form of degrading treatment.  It cancelled out the right to life and justice.  In the Arab and Islamic world, the media had to be involved the media in order to make people understand the truth of the crime, while also involving religious institutions.
 
Discussion
 
Greece said that the death penalty constituted a grave violation of human dignity and freedoms.  Greece encouraged States that had not yet done so to abolish that practice and said a moratorium was a positive first step.  Spain stated that there was no going back on the abolition of the death penalty.  It was a cruel and inhuman treatment, and it was hard to think that there was a way of implementing it that was not a mode of torture.  Argentina drew attention to a recent report about an Argentinian citizen sentenced to death in the United States.  He had been kept in total isolation and the report concluded that it was a violation of international law.  Portugal said that the death penalty was a form of punishment tarnishing the State that imposed it, and was an affront to human dignity. Despite a growing trend towards abolition, many countries still applied the death penalty and some had resumed it after a de-facto moratorium.
 
Mexico said that the death penalty was an inhuman and extreme punishment which scorned the human dignity inherent to all, and welcomed the debate and the important contributions from all present.  International human rights law made States responsible for refraining from acts that could cause suffering.  New Zealand recognized the emerging customary norm against the death penalty, noting that the imposition of a sentence of death inevitably caused suffering.   Capital punishment had become an inhuman and degrading punishment per se.  Switzerland said that the use of the death penalty caused suffering of the victims and their loved ones, and asked the panel how the notion that the death penalty was torture had evolved in different regions of the world.  Albania reiterated that capital punishment was a threat to the human dignity of affected persons, advocating for abolishment of the death penalty as a priority of its foreign policy.  Liechtenstein opined that the imposition of the death penalty was a flagrant violation of the right to life and human dignity, and called for the universal ratification of the International Covenant on Civil and Political Rights, asking the panellists for how to improve the collection of disaggregated data on the use of the death penalty.  Colombia said that the death penalty was tantamount to cruel treatment of both the convicted person as well as their family and friends.
 
Algeria said it had in place a moratorium on the death penalty and had begun the legal reforms to limit the number of crimes to which the death penalty was applied.  Fiji said it had abolished the death penalty in 2015 due to the weight of international opinion and to be in line with the constitutional guarantee to the right of life.
 
International Federation of Action Christians for the Abolition of Torture said that the imposition of the death penalty contravened the prohibition of torture and other cruel, inhumane and degrading treatment, and should be considered illegal.  Friends World Committee for Consultation raised the negative impact of the execution of parents on children, and that trauma could extend well into their adult lives, and asked how the rights of children could be protected in this context.  Ensemble contre la Peine de Mort welcomed the trend toward the universal abolition of the death penalty and was worried about the increased number of executions by States that still retained this punishment.
 
Council of Europe noted that the abolition of the death penalty was one of the reasons of the existence of the Council of Europe, and that the link between torture and the death penalty had been well documented.   Papua New Guinea welcomed the discussion on the death penalty, but said that it did not warrant the imposition of the abolition of the death penalty because it was not illegal under international law.  India stated that any simplistic approach to characterize the death penalty as a human rights issue in the context of the right to life of the convicted prisoner was deeply flawed and controversial.  Holy See noted that human justice was fallible and that the death penalty represented a failure.  Whenever possible legislative and judicial authorities should seek for guilty parties to make amends.  Kenya said that although the death penalty remained in the Criminal Code, the right to life was enshrined in the Constitution.  The power of mercy and of alternative sentences had been exercised in Kenya.   Italy stressed that the threat of terrorism should not lead to unilateralism in order to produce an increasingly fair justice system.  Cooperation at the international and national levels was crucial in establishing a universal moratorium on the death penalty.
 
International Bar Association called for the total abolition of the death penalty, noting that it amounted to cruel and inhumane treatment.  The way the death penalty was executed in some cases caused excruciating pain, such as stoning and asphyxiation.

 
Concluding Remarks
 
VERENE A. SHEPARD Professor of Social History at the University of the West Indies and discussion moderator, asked about mental suffering and whether the death penalty could ever be viewed as being compatible with international human rights law.
 
MONCEF MARZOUKI, Former President of Tunisia, said the link between human rights and mental suffering for those sustaining this penalty was already clear.  Now, the international community must increase pressure on dictatorships that were implementing capital punishment because it was mainly a political issue with cultural and religious aspects.  They must work in societies that were still convinced of the death penalty issue.  He also highlighted how capital punishment was a sign of the development of a country.
 
VERENE A. SHEPARD Professor of Social History at the University of the West Indies and discussion moderator, asked whether conditions were ripe for Africa to become the next abolitionist continent.
 
KAGWIRIA MBOGORI, Chairperson of the Kenya National Commission on Human Rights, said that notion was a bit romantic, like poetry.  Governance was done in prose, which was less elegant.  A number of African countries maintained the death penalty for various reasons, amongst them to look tough on crime and as a tool against political enemies.  In that context, it was very alluring to those who held power at different times.
 
Point of Clarification
 
Egypt, speaking in a point of clarification, said it would like to object in full to what was said by the former Tunisian President when he said that capital punishment was used as a way of settling political disputes.  The legal provisions of Egypt had been in application for decades and had nothing to do with regime.  It was totally unacceptable that allegations were made against one of the oldest judiciary bodies in the region.

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