PENALTY

Amnesty International went on to lobby Council of Europe member
states in favour of adoption (and later ratification) of the Protocol. It is
also likely that its adoption influenced the adoption, six years later, of
the Second Optional Protocol to the ICCPR. To this extent at least,
it may be inferred that NGOs influenced the adoption of the latter
protocol, and from a purely human rights perspective.
HUMAN RIGHTS ISSUES IN THE APPLICATION
OF THE DEATH PENALTY
The human rights dimensions of the application of the death penalty
have been more evident and less controversial. Thus, General Assembly
Resolution 2393 (XXIII) of 1968, invoking Articles 3 and 5 of
the Universal Declaration of Human Rights, called on governments
of retentionist countries “to ensure the most careful legal procedures
and the greatest possible safeguards for the accused in capital cases.” In
1980, General Assembly Resolution 35/172 urged states “to respect
as a minimum standard the content of the provisions of articles 6, 14
and 15 of the International Covenant on Civil and Political Rights.”
The formula was followed in several subsequent resolutions.
The case law of the Human Rights Committee is also relevant to
interpretation of the ICCPR provisions. Each of the standards lends
itself to extensive commentary, but this is not the place for that.
Rather, the message is that, to the limited extent that the death penalty
may still be permitted, human rights are centrally relevant to the
legitimacy of its application in practice.
Furthermore, one only has to read the other chapters of this book
to see how human rights principles are offended by the inherently
and inescapably arbitrary and discriminatory application of the death
penalty. The maintenance of the death penalty and respect for human
rights must surely soon come to be seen universally as mutually
incompatible goals.
The significance of this was that states were being asked to respect
treaty-based standards, regardless of whether they were parties to the
treaty. Those standards involved substance as well as procedure. Article
6 requires that the death penalty be reserved for only the most serious
crimes and crimes not contrary to other provisions of the Covenant
(evidently implying those involving the exercise of the other human
rights, such as the freedoms of speech, assembly and association).
Articles 6 and 15 both prohibit retroactive punishments of any sort,
particularly in capital cases. Article 14 lays down the basic elements
of a fair trial and requires the possibility of review by a higher tribunal.
Article 6 also demands the possibility of seeking pardon or
commutation of sentence. And it insulates from the death penalty
people who committed crimes when they were under 18 years old,
as well as pregnant women. These standards were resumed and given
some limited elaboration in Economic and Social Council Resolution
1989/64 on Safeguards Guaranteeing Protection of the Rights
of Those Facing the Death Penalty.
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