PENALTY

with their invocation of the right to life but not the prohibition of
cruel punishment. The crime prevention part of the Secretariat (now
the United Nations Office on Drugs and Crime) is still responsible
for commissioning the (now quinquennial) United Nations studies
on the death penalty.
After the disappointment at the 1980 Caracas Crime Congress, the
governments traditionally most active on the issue (Austria, Costa
Rica, Italy, Portugal and Sweden, joined by the Federal Republic
of Germany) introduced a draft optional protocol to the ICCPR,
whereby states becoming parties would commit themselves to
abolition. The ICCPR had not required states parties to abolish
the death penalty. Its Article 6(6) stated that nothing in it should be
invoked to justify non-abolition, but it did allow retentionist states
to become parties, while subjecting them to certain restrictions.
The Human Rights Committee, the expert body established to
monitor implementation of the Covenant, stated that Article 6
“refers generally to abolition in terms which strongly suggest . . . that
abolition is desirable.” 9 It also asserted that “all measures of abolition
should be considered as progress in the enjoyment of the right to
life.” Thus the 1980 draft was aimed at translating desirability into
legal obligation.
“WHY DO WE KILL
PEOPLE TO SHOW THAT
KILLING PEOPLE IS
WRONG?”
—Nigel S. Rodley
In 1982, the Assembly referred
the matter to the Commission on
Human Rights, which two years
later passed the buck further
down to its expert sub-body, the
Sub-Commission on Prevention
of Discrimination and Protection
of Minorities. Despite not having a specific mandate to adopt a
text (as opposed to studying the idea), the Sub-Commission decided
to adopt an amended draft text on the recommendation of Special
Rapporteur Marc Bossuyt. The Sub-Commission forwarded the text
to the Commission, which referred it on, through the Economic and
Social Council to the General Assembly. The Assembly, by a majority
vote (59 votes for, 26 against and 48 abstentions), adopted the text of
9 “General comment no. 6: the right to life” (1982), reproduced in UN Doc. HRI/GEN/1/
Rev.9 (Vol. I) (2008), paragraph 6.
what is now the Second Optional Protocol [to the ICCPR] Aiming
at the Abolition of the Death Penalty.
The preamble to the Protocol refers to the right to life in language
borrowed from the Human Rights Committee’s general comment on
ICCPR Article 6; it also directly cites UDHR Article 3 and ICCPR
Article 6. It does not explicitly invoke the prohibition of cruel punishment,
though it expresses the belief that abolition “contributes to
the enhancement of human rights and progressive development of
human rights.” Presumably, the drafters preferred to avoid the use
of language like “cruel, inhuman or degrading” to characterize the
penal practices of states that may not yet be ready to ratify but would
be willing to abstain from voting on adoption of the text, as long as
they did not feel insulted. Meanwhile, by 1994, the Human Rights
Committee was making clear that, had Article 6 of the ICCPR not
provided for retention, Article 7’s prohibition of cruel punishments
would have been applicable. 10
Also in 1994, Italy tried unsuccessfully to get another weak abolitionist
resolution through the General Assembly. 11 In 1997, Italy
decided to centre its efforts on the United Nations Commission
on Human Rights, where it successfully proposed a stronger text.
This repeated the earlier General Assembly call for the progressive
restriction of capitally punishable offences and establishment of a
moratorium “with a view to completely abolishing the death penalty.”
12 After a number of resolutions reiterating this language, by
2003 the Commission was able to make the stronger direct call, in
its Resolution 2003/67, “to abolish the death penalty completely
and, in the meantime, to establish a moratorium on executions.”
It repeated the approach in its final substantive session in 2005
(Resolution 2005/59). Like earlier initiatives, it referred to UDHR
Article 3 and ICCPR Article 6.
10 Ng v. Canada, UN Doc. CCPR/C/49/D/469/1991 (1994), paragraph 16.2; see William A.
Schabas, The Death Penalty as Cruel Treatment and Torture (Boston, Northeastern University Press,
1996).
11 States would merely have been invited to “consider” progressive restriction of the number of
capitally punishable offences and the “opportunity” of instituting a moratorium, albeit with the
ambitious goal of abolition by the year 2000; UN Doc. A/C.3/49/L.32 (1994).
12 Commission on Human Rights Resolution 1997/12—27 for, 11 against and 14 abstentions;
see Nigel S. Rodley and Matt Pollard, The Treatment of Prisoners under International Law, 286-287.
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