A highly controversial issue concerning human rights is that of the death penalty. Across the globe the majority of states have abolished the death penalty as human rights have been brought to the forefront of international and domestic law. There are however a number of states that, despite their boasted commitment to human rights, have retained the death penalty. While arguments concerning the death penalty tend to adopt a purely legal approach to the issue, an approach based upon human rights arguments is considerably more complex. This paper will critically examine whether the death penalty should and could be reinstated in English law from a human rights perspective. Through brief reference to the justifications and impact of the death penalty in the US, various human rights arguments will be critically assessed. It will ultimately be demonstrated that human rights arguments are more indicative of arguments which stand against reinstating the death penalty in the UK, particularly due to the fact that human rights norms have internationally moved closer to abolition of this form of punishment. To reinstate the death penalty in the UK would be to directly offend such norms.
The Right to Protection from Cruel and Unusual Punishment
Article 3 of the European Convention of Human Rights contains the right to protection from cruel and degrading treatment and torture. The importance of protecting and upholding this right has led to its status as a “standard element” in human rights treaties and it is arguably this right which renders the notion of reinstating the death penalty in English law the most controversial. This right underpins the fundamental requirement that state punishment fulfil the proportionality requirement so that it correlate to and depend upon the gravity of the particular defendant’s crime. Only the most violent and serious of crimes may therefore attract harsh and severe punishment, although this right protects offenders from certain methods or forms of punishment (such as torture) irrespective of the crime that they have committed.
While the death penalty was not considered to offend the proportionality requirement in the 18th century, the growing importance of human rights has eroded initially-widespread acceptance of the death penalty. The controversy of the death penalty did not however suddenly emerge, and it moreover did not pertain to the death penalty overall. In the US for example, disagreement initially emerged in relation to the method of killing and this resulted in the use of electrocution and shooting rather than hanging. The right to protection from cruel and unusual punishment related more to how the death penalty was administered and the crimes that it could be used to ‘punish’ rather than whether it could be defined overall as cruel punishment. What is most interesting in terms of the death penalty in the US is the fact that it clearly seems to depend upon whatever US citizens are “prepared to call cruel and unusual at any given time”. Does this mean that UK citizens are more expansive in their approach to what constitutes cruel and unusual punishment than US citizens?
In order to consider whether Article 3 ECHR could ever permit the reinstatement of the death penalty in the UK, it is necessary to consider how torture and cruel and degrading treatment is defined. Article 3 is subject to “no qualifications or exceptions, and no restrictions” even if a public emergency or state of war occurs. It could therefore be deemed as an absolute right. The European Court has also confirmed the important status of Article 3, emphasising in a number of cases that it “enshrines one of the fundamental values of democratic society” and defining it as “an absolute right”. It is therefore highly unlikely that the UK would be able to avoid breaching Article 3 if it was to reinstate the death penalty. This form of punishment is arguably the most likely to violate Article 3. The ambit of Article 3 is extremely broad, yet the way in which the ECtHR has defined ‘torture’ in particular has been the cause of some controversy.
The initial attempt of the ECtHR to define torture can be found in the Greek Case, where it distinguished between torture and inhuman treatment. It was held that there is a “special stigma” which surrounds “deliberate inhuman treatment causing very serious and cruel suffering”. Torture was defined as unjustified, deliberate and severe treatment. Article 3 was first found to have been breached in Aksoy v Turkey in which the aforementioned characteristics had been found, as well as treatment of a cruel nature. In Labita v Italy however the treatment was not required to be deliberate in order to breach Article 3, rather “all the circumstances of the case must be considered”. Ireland v UK represents one of the most controversial cases to invoke Article 3. The ECtHR emphasised the importance of the severity of the treatment and held that inhuman and degrading treatment may not always amount to torture if it is not sufficiently severe. This decision has been heavily criticised on the grounds that a “threshold of pain or suffering” was not set, and that this effectively caused a discrepancy to arise between the scope of Article 3 in theory and in practice. It is now generally the case that intentional and unjustified infliction of severe suffering amounts to torture.
Does the death penalty constitute a violation of Article 3? Case law concerning Article 3 generally concerns cases in which individuals have been potentially extradited to countries in which it is likely that they will face the death penalty. In the early case of Soering v UK it was held that Article 3 ECHR does not implicitly amend the right to life in Article 2 so that the death penalty is prohibited. The individual concerned could not be extradited to the US because he would be subjected to long-term incarceration while on death row. The issue was not therefore the fact that the individual would be executed, but rather the fact that he would be subjected to psychological distress because he would be kept on death row. A similar approach was adopted by the European Court of Human Rights in Ocalan v Turkey in which the applicant was prevented from being extradited from Kenya to Turkey on the grounds that he would be sentenced to death without a fair trial as required by Article 6 ECHR. Such decisions demonstrate that the death penalty was not considered to be a direct infringement of Article 3.
Perhaps the most important case concerning the death penalty in relation to Article 3 is that of Al-Saadoon and Mufdhi v UK in which the Court recognised that EU and international law had moved ever-closer to abolition of the death penalty. The Court drew attention to the fact that the UK had ratified Protocol No. 6 to the ECHR which abolishes the death penalty in times of peace and Protocol No. 13 which abolishes the death penalty in all circumstances. Article 3 in conjunction with Article 2 was therefore said to prohibit the death penalty because it constitutes inhuman and degrading treatment and a violation of the right to life.
The Right to Life in EU and International Law
Perhaps the most “primordial right” is the right to life, which is said to rank “highest as against any other right”. The death penalty clearly conflicts with and violates this right which is set out in Article 2 ECHR and states that ‘everyone’s right to life shall be protected by law’. The right to life is commonly defined as the most fundamental human right, and it generally imposes an array of positive obligations upon member states. In the context of the death penalty however, may the right to life be interpreted and enforced as a right not to be killed as punishment by the state? Ramcharan proposes that the right to life is “the protection of the life of every individual human being from all possible threats”. Feinburg considers the right to life to be a “liberty correlated with another person’s duty…not to interfere”. Over the years the right to life as contained in Article 2 has been gradually expanded and it may now be said to impose upon states the need to “pursue policies which are designed to” promote and ensure access to the right of life and “means of survival for every individual within its country”. This however does not mean that there are no exceptions to Article 2; Paragraph 2 for example provides for exceptional circumstances in which violation of the right to life may be permitted.
Do exceptions to the right to life in legislation potentially or expressly permit the death penalty? The International Covenant on Civil and Political Rights states that the death penalty ‘may be imposed’, although any exceptions to the death penalty must be ‘carefully controlled’ and necessary. Jachec-Neale indeed points out that international human rights law foresees the possibility “that life will be lawfully taken in certain circumstances”. Do such circumstances include the death penalty? Article 2 ECHR specifically states: ‘No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law’, although the UK’s ratification of Protocol has rendered this element invalid. In light of this development, it is clear that the UK would be in violation of the ECHR if it was to reinstate the death penalty. Human rights are indeed commonly defined as a set of ‘international norms’ which represent ‘the universal conscience of the world’s peoples’. This is particularly the case for the right to life.
Although it is evident that the UK would be in violation of European human rights law if it was to reinstate the death penalty, may the same conclusion be drawn in respect of its international human rights obligations? Article 3 of the highly influential Universal Declaration of Human Rights contains the ‘right to life, liberty and security of the person’ while Article 5 provides protection against cruel, inhuman or degrading treatment and torture. Article 5 in particular has limited methods of execution by reference to their torturous or cruel nature, not because they violate the right to life. The death penalty is not considered to directly violate the rights contained in the UDHR, although its restrictive approach to this form of punishment is gaining pace. This arguably began with the General Assembly’s Resolution 32/61 which sought to limit “the number of offences for which the death penalty may be imposed with a view to the desirability of abolishing capital punishment”. Formed by a number of UN Resolutions, the Special Rapporteur must investigate and report arbitrary, extrajudicial and summary executions to the Human Rights Commissions.
If one is to observe the UDHR’s approach to human rights and the death penalty, one is able to confirm that there is an emerging trend which appears to be drifting towards abolition of the death penalty on the basis that it violates a variety of human rights. It has however been pointed out that international human rights legislation, although it “currently leans significantly toward classifying capital punishment as a human rights violation”, has not yet adopted this stance “definitively”. In practice the UDHR is actually rather limited in relation to its impact upon the death penalty. Does this therefore mean that there is no consensus as to whether the death penalty contravenes human rights? It has been proposed that the UDHR does provoke the “presumption that something less than full effectiveness in terms of law is intended”. From a purely legal perspective it is therefore unlikely that the UK, if it was to reinstate the death penalty, would be in contravention of international human rights law. The UDHR does however acquire a certain status as a confirmation of the prevailing importance of human rights and could also be said to implement a customary form of international law.
The ICCPR is committed to giving legal force to the UDHR and its stance on the death penalty is clearly less forgiving than the UDHR. International human rights law may overall recognise that “life will be lawfully taken in certain circumstances”; a direct connection between the death penalty and the right to life has been specifically created by Article 6 ICCPR. Article 6 however imposes restrictions upon rather than outright prohibits the death penalty, although the first step towards considering the abolition of the death penalty is contained in the Second Optional Protocol to the ICCPR. The Second Optional Protocol to the International Covenant Aiming at the Abolition of the Death Penalty specifically states that ‘no one within the jurisdiction of a State Party shall be executed’ and imposes the obligation upon member states to ‘take all necessary measures to abolish the death penalty’. The ICCPR moreover describes the right to life as an ‘inherent’ right, which illustrates its importance in the international law realm. This is indeed the only right which is described in the Covenant as inherent, which is said to attest “to its primacy and emphasises that it derives from the very fact of a human being’s existence”.
It is possible to conclude that there are no human rights arguments in favour of the UK reinstating the death penalty. Although human rights discourse often concerns jurisprudential debate rather than reference to pre-existing universal rules, the UK’s commitment to human rights would be severely jeopardised if it was to reinstate the death penalty. If the UK was to opt out of the ECHR and alter (or even abolish) the HRA 1998 in order to facilitate the death penalty, it would still have to ensure that it heeds its international human rights obligations. Although international human rights law is relatively premature it is clear that a trend is emerging which will eventually lead to the abolition of the death penalty. Reinstating the death penalty would mar the UK’s reputation and inject serious doubt into the extent to which it is committed to human rights.
The ECHR now confirms that the death penalty contravenes the right to life as contained in Article 2. The right to life is not expressly and unquestionably absolute in international law, yet it is ironically the death penalty which undermines the potentially-absolute nature of the right to life. International attitudes are increasingly shifting towards the notion that “the death penalty has been deemed inappropriate to the values that international justice is meant to represent”. Arguably, the only factor which has hindered the death penalty from becoming internationally abolished is the stark difference between international cultures, policies and ideologies in relation to human rights overall. To reinstate the death penalty would also be to distort fundamental penal principles that the UK claims to ascribe to; most prominently that of proportionality. It could be argued that those who kill may be killed, and that such punishment would fulfil rather than breach the proportionality requirement. Yet would this not mean that the state should torture those who physically assault others and rape those who rape? There has been a clear rise in the culture of human rights, and this has imposed upon the UK – a state which boasts respect for human rights – the obligation to dismiss the death penalty as degrading, inhumane and as something “which it is wrong to do deliberately to a human being in the name of the state”
By Yusha Barakzai