Aadel Collection
Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston
UNITED
NATIONS
General Assembly Distr.
GENERAL
A/HRC/4/20
29 January 2007
Original: ENGLISH
HUMAN RIGHTS COUNCIL
Fifth session
Agenda item 2
CIVIL AND POLITICAL RIGHTS, INCLUDING THE QUESTIONS
OF DISAPPEARANCES AND SUMMARY EXECUTIONS
Report of the Special Rapporteur on extrajudicial,
summary or arbitrary executions, Philip Alston*
* The notes to the present report are contained in annex II and are circulated as received in the
language of submission only.
A
GE.07-10500 (E) 070207
AIHRC/4/20
page 2
Summary
OEis report, submitted in accordance with Human Rights Council decision 1/102, details
the principal activities of the Special Rapporteur in 2006. It also examines four issues of
particular importance.
1. The mandate of the Special Rapporteur in anned conflicts. OEe report rejects the
notion, put forward by one State in particular, that matters arising in the context of armed
conflict are beyond the purview not only of the Special Rapporteur but of the Human Rights
Council itself Such an approach would contradict very long-standing policies of the
Commission on Human Rights, the Economic and Social Council, and the General Assembly
and would critically undermine their ability to address pressing threats to human rights in many
of the situations before the Council.
2. Mercy killings” in anned conflict. Accepting the notion of so-called mercy killings”
would undermine key rules of international law applicable during armed conflicts. OEe
prohibition under international humanitarian law of killing those who have laid down their arms
or have been placed hors de combat by sickness, wounds, detention, or any other cause must be
resolutely upheld.
3. Most serious crimes. The requirement of human rights law that the death penalty should
be imposed only for the most serious crimes” continues to be interpreted subjectively by certain
States. OEe report examines the travaux of the International Covenant on Civil and Political
Rights, surveys the jurisprudence of the Human Rights Committee, and analyses the comments
by the Secretary-General, principles declared by the Economic and Social Council and the
Commission on Human Rights and concludes that, if it is to comply with the most serious crimes
restriction, the death penalty can only be imposed in cases where it can be shown that there was
an intention to kill which resulted in the loss of life.
4. Mandatory death sentences. OEe experience of numerous judicial and quasi-judicial
bodies has demonstrated that mandatory death sentences are inherently over-inclusive and
unavoidably violate human rights law. The categorical distinctions that may be drawn between
oLences in the criminal law are not suffcient to reflect the full range of factors relevant to
determining whether a death sentence would be permissible in a capital case. In such cases,
individualized sentencing by the judiciary is required in order to prevent cruel, inhuman or
degrading punishment and the arbitrary deprivation of life.
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CONTENTS
Paragraphs Page
I. INTRODUCTION 1 -5 4
II. ACTIVITIES 6 - 17 4
A. Communications 6 - 9 4
B. Visits 10 - 14 5
C. OEe situation in the Islamic Republic of han 15- 17 6
III. ISSUES OF PARTICULAR IMPORTANCE 18-62 7
A. The mandate of the Special Rapporteur in armed conflicts .... 18 - 28 7
B. Mercy killings” in armed conflict 29 - 38 9
C. Imposing the death penalty only for the most serious
crimes” 39- 53 11
D. The prohibition of the mandatory death penalty 54- 62 15
IV. CONCLUSIONS AND RECOMMENDATIONS 63-66 18
Annexes
I. Mission requests outstanding as of 7 December 2006 19
II. Notes to the report 21
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I. INTRODUCTION
1. In addition to reporting on the principal initiatives undertaken in 2006 to address the
scourge of extrajudicial executions around the world,' this report focuses on four issues of
particular importance: (a) the mandate of the Special Rapporteur in armed conflicts; (b) mercy
killings” in armed conflict; (c) the most serious crimes” for which the death penalty may be
imposed; and (d) the international law status of the mandatory death penalty.
2. OEe report is submitted pursuant to Human Rights Council resolution 1/102.
3. OEe report takes account of information received and communications sent in the
period 1 December 2005 to 30 September 2006. It should be noted, however, that the addendum
to the present report - which contains the details of the communications sent and the replies
received - follows a diLerent chronology, the details of which are explained below. 2
4. An overview of my terms of reference, a list of the speciffic types of violations of the
right to life upon which I take action, and a description of the legal framework and methods of
work used in implementing this mandate can be found in document E/CN.4/2005/7,
paragraphs 5-12.
5. I am grateful to the staL of the Off cc of the High Commissioner for Human Rights
for their assistance in the conduct of my work, and to Mr. William Abresch and
Mr. Jason Morgan-Foster of the Project on Extrajudicial Executions at New York University
Law School, who have provided expert assistance and advice.
II. ACTIVITIES
A. Communications
6. An indispensable aspect of the Special Rapporteur's mandate involves the sending of
communications designed to facilitate a productive and meaningful dialogue with Governments
in response to credible allegations of violations relating to extrajudicial executions.
7. OEis report covers communications sent and replies received over the past year. 3 OEe
details of my concerns and the information provided in response by Governments are reflected in
considerable detail in addendum ito this report. OEat addendum is an integral, and for some
purposes even the most important, part of the report on work done under this mandate. I have
classiffied the responses received according to their level of adequacy and have provided
evaluative OEbservations” designed to capture the outcome of each set of exchanges with a
Government.
8. A very brief statistical proffile of the communications sent during the period under review
shows that 135 communications were sent to Si countries and 2 other actors (including 44 urgent
appeals and 75 letters of allegation and 16 communications following up on previous
correspondence) concerning a total of more than 1,531 individuals. A breakdown of the subjects
AIHRC/4/20
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of those appeals shows that they involved 336 males, 55 females, more than 1,087 persons
whose sex was unknown, 53 minors, 58 members of religious, ethnic or indigenous minorities,
22 human rights defenders, 36 migrants and 16 journalists. More than 145 persons were killed
for exercising their freedom of opinion and expression, 4 were killed in the name of honour,
4 were killed for their sexual orientation and 19 of those killed were suspected terrorists.
9. Overall, the proportion of government replies received to communications sent during the
period under review remains low: an average of 47.9 per cent. (However, if government replies
received during the period under review but relating to communications sent during the previous
period are included, the proportion of communications to which replies were received rises to
55.3 per cent.) OEis means that, as during the previous year, roughly half of the communications
sent drew no response from the Government concerned within a reasonable time period. As
indicated in my previous report, this response rate must be considered problematic, particularly
in the case of a long-established procedure that addresses an issue as grave as the alleged
violations of the right to life.
B. Visits
1. Visits undertaken in 2006
10. During the course of 2006, lundertook two visits:
(a) Guatemala. I visited Guatemala from 21 to 25 August 2006 at the invitation of
its Government and met with government offcials and members of civil society. In Guatemala,
over 5,000 people die violently each year. A degree of State responsibility derives from the
involvement of its agents in some forms of violence and its ineLectual response to others.
During my visit, I gathered evidence on the prevalence and causes of phenomena such as social
cleansing, femicide”, lynching, killings motivated by sexual orientation or identity, the killing
of human rights defenders and prison violence. Guatemala's choice is between a human
rights-consistent approach based on a working system of criminal justice (and in line with the
vision of the Peace Accords) or a brutal and repressive response, oifien advocated under the
rubric of a niano dura (iron ffist), to crack down on undesirable” elements. My report is in
document AIHRC/4/20/Add.2.
(b) Lebanon and Israel. I undertook ajoint visit with the Special Rapporteur on the
right of everyone to the enjoyment of the highest attainable standard of physical and mental
health, the Representative of the Secretary-General on human rights of internally displaced
persons and the Special Rapporteur on adequate housing as a component of the right to an
adequate standard of living. We visited Lebanon from 7 to 10 September and Israel from 10 to
14 September 2006. Our report (AIHRC/2/7) found that, in many instances, Israel had violated
human rights and humanitarian law by failing to fully distinguish between military and civilian
objectives, to fully apply the principle of proportionality, and to take all feasible precautions to
minimize civilian injury and damage. With respect to Hezbollah, our report found that it had
violated humanitarian law by targeting civilian populations and by disregarding the principle of
distinction. 4
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2. Outstanding requests for visits
11. As of December 2006 I had made requests to visit 29 countries and the Occupied
Palestinian Territories. Of those 29, only 5 countries - Guatemala, Israel, Lebanon, Peru and
the Philippines - have actually proceeded with plans for a visit. OEe visit to the Philippines is
scheduled for February 2007, the visit to Peru was postponed for technical reasons, and the
Palestinian Authority has issued an invitation. Singapore has requested further information.
12. OEe responses of the remaining 23 countries have ranged from complete silence, through
formal acknowledgement, to acceptance in principle but without meaningful follow-up.
Particularly troubling is the fact that seven Council members have failed to issue requested
invitations: Bangladesh, China, India, Indonesia, Pakistan, the Russian Federation and
Saudi Arabia. In some cases the relevant requests were first made some six years ago. It is
noteworthy that the General Assembly responded to this situation in December 2006 by urging
all States, in particular those that have not done so, to cooperate with the Special Rapporteur so
that his mandate can be carried out eLectively, including by favourably and rapidly responding
to requests for visits, mindful that country visits are one of the tools for the fulffilment of the
mandate
13. OEe remaining States that have so far failed to respond affrmatively to requests for a visit
are: Brazil, Central African Republic, El Salvador, han (Islamic Republic of), Israel, Kenya,
Lao People's Democratic Republic, Nepal, Peru, Singapore, Trinidad and Tobago, Thailand,
Togo, Uganda, United States of America, Uzbekistan, Venezuela, Viet Nam and Yemen.
14. For a comprehensive list of the status of all outstanding requests, see annex 1.
C. The situation in the Islamic Republic of Iran
15. The Islamic Republic of Iran has issued a standing invitation” to the special procedures
but has repeatedly failed to respond to my requests that dates for a visit be set, despite an oral
exchange during the third session of the Council, several high-level meetings and an extensive
correspondence. In my annual report to the Commission and the Council in 2006
(E/CN.4/2006/53 and addenda) I drew particular attention to this situation.
16. Between August 2004 and March 2006 I sent 12 communications, involving nine boys
and six girls who had been sentenced to death in Iran for crimes committed when they were
under 18. Three girls were sentenced for murder and three others for acts contrary to chastity”.
Four boys were sentenced for murder, one for drug traffcking, three for abduction and rape, and
one for attempted hijacking. According to the available information four juvenile oLenders have
been executed and two acquitted. Five other death sentences are OEn hold” and one is under
review. The status of the remaining three cases is unclear.
17. The information received is clearly credible and there is every reason to believe that the
Iranian judiciary is freely ignoring the prohibition on the juvenile death penalty. This constitutes
a clear violation of Iran's obligations under the Convention on the Rights of the Child and the
International Covenant on Civil and Political Rights. OEere is no other country in the world in
relation to which I regularly receive allegations of this type. This is not surprising, since the
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juvenile death penalty has been speciffically abolished in virtually every other country. Lthe
Council is to take seriously its responsibilities in relation to extrajudicial executions, it will
respond appropriately to this wholly unacceptable situation.
III. ISSUES OF PARTICULAR IMPORTANCE
A. The mandate of the Special Rapporteur in armed conflicts
18. An earlier report examined the law applicable to violations of the right to life in armed
conflict and the role of the Special Rapporteur in response thereto. 6 This view has, however,
been consistently rejected by one State. These objections, by the United States of America, have
been raised in a wide range of contexts, thus underscoring the importance of carefully examining
their validity. In essence, the United States position consists of four propositions: (a) the war
on terror” constitutes an armed conflict to which international humanitarian law applies;
(b) international humanitarian law operates to the exclusion of human rights law;
(c) international humanitarian law falls outside the mandate of the Special Rapporteur and of the
Council; and (d) States may determine for themselves whether an individual incident is governed
by humanitarian law or human rights law. 7 L accepted, these propositions would have
far-reaching consequences for the Council and for its ability to contribute in any way to many of
the situations that are currently most prominent on its agenda.
1. The afreged exclusivity of the two bodies of law
19. Contrary to this proposition, it is widely agreed that the two bodies of law, far from being
mutually exclusive, are complementary. OEe International Court of Justice has observed that the
test of what is an arbitrary deprivation of life in the context of hostilities falls to be determined
by the applicable lex spec/ails, namely, the law applicable in armed conflict which is designed to
regulate the conduct of hostilities”. 8 But it went on to clarify that the protection oLered by
human rights conventions does not cease in case of armed conflict, save through the eLect of
provisions for derogation . In Congo v. Uganda, for example, it found separate violations of
international humanitarian law and human rights law, thus conclusively underscoring the fact
that the former does not wholly replace the latter during an armed conflict.' 0 This is consistent
with the conclusion of the Human Rights Committee that while more speciffic rules of
international humanitarian law may be specially relevant for the purposes of the interpretation of
[ certaini Covenant rights, both spheres of law are complementary, not mutually exclusive”.”
Similarly, the Commission and the General Assembly have regularly reaffrmed that
international human rights law and international humanitarian law are complementary and not
mutually exclusive”.' 2
2. Humanitarian law in the Conunission's mandate
20. The Commission on Human Rights, with the consistent endorsement of the Economic
and Social Council, regularly treated international humanitarian law as falling within its terms of
reference. Examples of this practice abound,' 3 and it suffces to cite three examples. First, in
relation to the former Yugoslavia, the Commission, in 1992, call [ edI upon all parties ... to
ensure full respect for ... humanitarian law” 4 and [ rIemind [ edI all parties that they are bound to
comply with their obligations under international humanitarian law .‘ This resolution was
subsequently endorsed by the Economic and Social Council.' 6
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21. Two years later, in relation to the same situation, the Commission [ cIondemn [ edI
categorically all violations of human rights and international humanitarian law by all sides”.' 7
It then applied international humanitarian law to the situation and denounce [ dI continued
deliberate and unlawful attacks and uses of military force against civilians and other protected
persons ... non-combatants, ... [ and ... relief operations”.' 8
22. OEird, in relation to Rwanda, the Commission [ cIondemn [ edI in the strongest terms all
breaches of international humanitarian law ... and call [ edl upon all the parties involved to cease
. . ,, 9
immediately these breaches . It also [ cIall [ edl upon the Government of Rwanda to ... take
measures to put an end to all violations of ... international humanitarian law by all persons
within its jurisdiction or under its control”. 20
23. As these examples make clear, both the Commission and the Council clearly and
repeatedly accepted that international humanitarian law formed part of the Commission's terms
of reference. In replacing the Commission by the Council, the General Assembly in no way
undertook to narrow its competence in this respect. 2 '
3. The Special Rapporteur's mandate
24. OEe Special Rapporteur's mandate is to examine ... questions related to summary or
arbitrary executions”. No reference is made to a limiting legal framework which would exclude
certain such executions. 22 Instead, the mandate has been deffined in terms of the phenomenon of
executions, in whatever context they might occur. In contrast, the United States position is that
while the Special Rapporteur may have reported on cases outside of his mandate, this does not
give [ himi the competence to address such issues”. It is certainly correct that the Special
Rapporteur's practice does not, on its own, establish competence. But when based on the terms
of the relevant resolutions, and reinforced by the actions and votes of Governments in the
Commission, the Economic and Social Council and the General Assembly, the Special
Rapporteur is clearly not acting unilaterally. Of the many possible illustrations of this process, 23
the following are indicative.
25. First, in 1983, in the very ffirst report under the mandate, my distinguished predecessor,
Mr. Amos Wako, included a substantive section on Killings in war, armed conflict and states of
emergency” under the heading of international legal standards. 24 In that section, he noted that
[ tIhe Geneva Conventions of 12 August 1949 are also relevant ... Each of the Geneva
Conventions clearly prohibits murder and other acts of violence against protected persons. OEey
explicitly provide that wilful killings' are to be considered grave breaches' of the Geneva
Conventions, that is, war crimes subject to universality ofjurisdiction.” 25 His report was
endorsed by the Commission. 26
26. Second, in January 1992 Mr. Wako annexed to his annual report a List of Instruments
and other Standards which Constitute the Legal Framework of the Mandate of the Special
Rapporteur”. 27 The Geneva Conventions appear as item 3 in a 14-point list. OEis report was also
endorsed by the Commission which explicitly welcome [ dI his recommendations 28 some of
which had focused explicitly on extrajudicial executions during armed conflict. 29
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4. Determining compliance
27. The position put forward by the United States would give every State the power
unilaterally, and without external scrutiny, to determine whether or not a speciffic incident is
covered by the mandate of the Special Rapporteur. OEe implication is that the Special
Rapporteur should automatically accept a State's own determination that a particular individual
was an enemy combatant” attacked in appropriate circumstances”. On this basis, a
Government can target and kill any individual who it deems to be an enemy combatant, and it
would not be accountable in that regard to the international community, let alone to the Council.
28. In eLect, this position would place all actions taken in the so-called global war on
terror” in a public accountability void, in which no international monitoring body would exercise
public oversight. 30 Creating such a vacuum would set back the development of the international
human rights regime by several decades. In order to avoid such an unacceptable outcome, the
Special Rapporteur would need to receive a detailed explanation of such incidents, so that he
may determine independently whether they fall within the scope of the mandate provided by
the Council.
B. Mercy killings” in armed conffct
29. The expression mercy killings” has recently been used to characterize certain killings by
the military in the context of armed conflicts. One example concerns the court martial of
Capt. Rogelio Maynulet for the shooting of an Iraqi man in Baghdad in May 2004. A mercy
killing” argument was central to the defence. 3 ' Although originally charged with murder for
shooting twice at point-blank range, 32 Maynulet was ultimately convicted of assault with intent
to commit voluntary manslaughter and sentenced to dismissal from the army and no
confinement. 33 Another example, also from Iraq, is the invocation of a mercy killing defence for
two soldiers who mistakenly opened ffire on what appears to have been a group of non-combatant
teenagers. Realizing their mistake, medics hurried to treat the injured, when, according to
reports,
[ aI dispute broke out among a handful of soldiers standing over one severely wounded
young man who was moaning in pain. An unwounded Iraqi claiming to be a relative of
the victim pleaded in broken English for soldiers to help him. But to the horror of
bystanders, Alban, 29, a boyish-faced sergeant who joined the Army in 1997, retrieved an
M-231 assault rifle and ffired into the wounded man's body. Seconds later, another
soldier, StaL Sgt. Johnny Horne, Jr., 30, of Winston-Salem, NC, grabbed an M-16 rifle
and also shot the victim”. 34
30. On this basis United States oLicials characterized the shooting as a mercy killing”,
citing statements by Alban and Horne that they had shot the wounded I raqi to put him out of his
misery”. 35 Subsequently, other soldiers present at the scene expressed surprise that the victims
were not rushed to hospital. 36 In January 2005, Alban was convicted of murder and conspiracy
to commit murder aifier a one-day court martial in Baghdad. He was sentenced to one year's
confinement, demotion to private and a bad-conduct discharge. 37
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31. A third example concerns a recommendation that Specialist Juston R. Graber be
court-martialled for killing an Iraqi in a raid on a potential insurgent stronghold north-west of
Baghdad. Informed reports suggest that the mercy killing” defence would also be raised in this
case, as Graber allegedly shot the Iraqi in the head as the man lay dying. 38
32. Despite the extent to which military oLicials, commentators, and even military judges
seem willing to entertain a mercy killing” defence, it is clear that such a characterization is
entirely unacceptable under the applicable rules of international humanitarian law. In
international armed conflicts, article 12 of the Geneva Convention for the Amelioration of the
Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention) is
clear that the wounded or sick shall be respected and protected in all circumstances ... Any
attempts upon their lives, or violence to their persons, shall be strictly prohibited; in particular,
they shall not be murdered . The ICRC Commentary on this provision, based on the
travauxpr paratoires, considers such derelictions of duty ... [ to bel the gravest a belligerent
can commit in regard to the wounded and sick in his power”. 40 It notes that the heinous crimes
in question were already prohibited in the 1929 text, which established the principle of respect
and protection in all circumstances - a principle which is general and absolute in character”. 4 '
33. Although the Geneva Conventions of 1949 limited most protection of the wounded and
sick to a narrow class of protected persons”, the First Additional Protocol to the Geneva
Conventions expanded the scope of protection to cover all persons aLected by international
armed conflict. Article 75 of Additional Protocol I extends protection to those persons who do
not qualify for the status of protected persons” under the 1949 Conventions; this article includes
protection against violence to ... life, health, or physical or mental well-being ... in particular,
murder”. 42 Similarly, article 8 (a) of Protocol I expands the deffinition of wounded and sick” to
include civilians as well as soldiers. 43 Such persons would also beneffit from the protection of
common article 3 to the Geneva Conventions, as discussed below, which constitute a minimum
yardstick” applicable to all armed conflicts. 44
34. In non-international armed conflicts, common article 3 to the Geneva Conventions
requires that members of armed forces ... placed hors de combat by sickness, wounds,
detention, or any other cause, shall in all circumstances be treated humanely ... . To this end, the
following acts are and shall remain prohibited at any time and in any place whatsoever with
respect to the above-mentioned persons: (a) violence to life and person, in particular murder of
. ,,45 .. . .
all kinds . Additional Protocol II further states that [ aill the wounded, sick and shipwrecked,
whether or not they have taken part in the armed conflict, shall be respected and protected” 46 and
all possible measures shall be taken ... to search for and collect the wounded ... [ and protect
them against ... ill-treatment”. 47
35. OEe prohibition of murder of persons hors de combat and the obligation to protect the
wounded from adverse treatment are norms of customary international law applicable in both
international and non-international armed conflicts. 48
36. Although such mercy killings” are sometimes presented as a necessary evil” of war,
such an analysis contradicts the foundations of the applicable law. Once enemy combatants have
been rendered hors de combat by injury, they are no longer a threat to the opposing combatants,
and there is simply no reason why it would be necessary” to kill them. 49
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37. Proponents of mercy killings” oifien justify them out of compassion, but in practice they
are much more likely to reflect an underlying dehumanization of the enemy. For example, Iraqis
who witnessed the shootings by Alban and Home said that rather than provide medical help to
an injured civilian, the soldiers had treated the Iraqi as if he were an animal struck by a car”. 50
38. It warrants underlining the fact that international humanitarian law does not allow - under
any circumstances - the taking of the life of another as a purported act of mercy”. The
obligation to treat injured soldiers OEumanely” and the obligation to respect and protect” the
wounded are incompatible with the idea of mercy killings”. Rather, the obligation of parties to
a conflict, in the presence of injured persons, is (i) to take all possible measures to search for,
collect and evacuate the wounded, sick and shipwrecked without adverse distinction” 5 ' and
(ii) to seek the appropriate medical care to the fullest extent practicable and with the least
possible delay. 52 Individual parties to the conflict, who lack medical training, may not take the
medical care of the wounded into their own hands by deciding to end the life of an injured
person on the battleffield. Such killings are an unequivocal violation of international
humanitarian law.
C. Imposing the death penalty only for the most serious crimes”
39. International human rights law provides that States which retain the death penalty can
only impose it for the most serious crimes”. OEat phrase has thus assumed major importance in
eLorts to determine when the death penalty might acceptably be imposed. While its precise
meaning has not been spelled out in treaty form, the debates over its drafting, principles of
interpretation adopted subsequently, and the by now very extensive practice of international
human rights mechanisms have all combined to clarify the meaning and significance of the
phrase.
40. The first Special Rapporteur dealt with the issue of the most serious crimes” as early
as 1984 when he surveyed the death penalty legislation of States to assess the range of oLences
for which it was then imposed in practice. 53 OEe results of the survey contributed to the
elaboration of the safeguards guaranteeing protection of the rights of those facing the death
penalty, which were adopted by the Economic and Social Council later that year. 54 In his next
report, the Special Rapporteur noted that these safeguards would serve as criteria for
ascertaining whether an execution is of a summary or arbitrary nature”, 55 and he began to
consider particular situations implicating the most serious crimes limitation. 56 hi subsequent
reports, the Special Rapporteur drew on the safeguards and their follow-up by the Council as
well as on the jurisprudence of the Human Rights Committee in determining whether particular
oLences fell within or outside the scope of the most serious crimes” requirement. 57 hi
communications with Governments, the Special Rapporteur has addressed death sentences for
oLences and conduct including 58 adultery, 59 apostasy, 60 blasphemy, 6 ' bribery, 62 acts
incompatible with chastity, 63 corruption, 64 drug possession, 65 drug traffcking, 66 drug-related
oLences, 67 economic oLences, 68 expressing oneself, 69 holding an opinion, 70 homosexual
matters of sexual orientation, 72 manifesting one's religion or beliefs, 73 prostitution, 74
organization of prostitution, 75 participation in protests, 76 premarital sex, 77 singing songs inciting
men to go to war, 78 sodomy, 79 speculation, 80 acts of treason, espionage or other vaguely deffined
acts usually described as crimes against the 5tate”, 8 ' and writing slogans against a country's
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leader. 82 OEe range of offences involved invites an inquiry into the underlying normative
rationale, and suggests that problems of non-compliance have remained widespread. It is clear
that a subjective approach to this important issue is not viable, in the sense that a vast array of
oLences might understandably be classiffied by any given individual or Government as being
among the most serious”. But such an approach would render the relevant international law
standard meaningless. As a result a systematic and normatively persuasive response is essential.
41. OEe basic requirement was ffirst introduced in article 6 (2) of the International Covenant
on Civil and Political Rights (ICCPR):
In countries which have not abolished the death penalty, sentence of death may be
imposed only for the most serious crimes in accordance with the law in force at the time
of the commission of the crime and not contrary to the provisions of the present Covenant
and to the Convention on the Prevention and Punishment of the Crime of Genocide. OEis
penalty can only be carried out pursuant to a ffinal judgement rendered by a competent
court.”
42. OEis provision supplemented that prohibiting the arbitrary deprivation of life, in
article 6 (1):
Every human being has the inherent right to life. OEis right shall be protected by law.
No one shall be arbitrarily deprived of his life.” 83
43. It has been much commented upon that neither term - arbitrarily deprived” or most
serious crimes” - is further defined in ICCPR. In this regard, various sources are illuminating.
And while the travauxpr paratoires are but a supplementary means of interpretation, they do
assist in understanding the ordinary meanings of these terms.
44. One insight that emerges from the travaux of article 6 of ICCPR is that the concepts of
arbitrariness and of the most serious crimes” serve to add a requirement of substantive justice to
the requirements of formal legality and due process. An early version of the article stated that it
shall be unlawful to deprive any person of his life” with the one exception being upon
conviction of a crime for which this penalty is provided by law”. 84 Notably, this version, which
implied that the legality of an execution would be determined solely within the domestic legal
order, was rejected. A number of delegates pointed out that it would permit what amounted to
arbitrary killing to be masked by the trappings of law. 85 Various substantive limits on the scope
of death penalty laws were thus introduced, including a prohibition of arbitrary deprivations of
life (with arbitrarily” meaning either illegally” or unjustly” 86 ), a prohibition of death
sentences for other than the most serious crimes”, and a requirement that any such deprivation
be consistent with ICCPR and the Convention on the Prevention and Punishment of the Crime of
Genocide. 87 To determine whether a particular oLence falls among the most serious crimes,
thus, requires interpretation and application of the relevant international law rather than of the
subjective approach opted for within a given State's criminal code and sentencing scheme.
45. Another key insight to be drawn from the travaux relates to the apparent imprecision of
the terms used to deffine the scope of the right to life. The report of the Secretary-General to the
General Assembly on the draifi Covenant identiffied three views that had been advanced during
the draifiing of ICCPR. OEe ffirst was that the right to life should be expressed in absolute terms
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and that no mention should be made of circumstances under which the taking of life might seem
to be condoned”. 88 This view was widely rejected as unrealistic in the context of a binding legal
instrument. 89 OEe second view was that the provision should spell out speciffically the
circumstances in which the taking of life would not be deemed a violation of the general
obligation to protect life”, 90 and a number of detailed enumerations of exceptions were provided
by those holding this view. Others considered, however, that even if agreement could be reached
on each particular exception, any enumeration of limitations would necessarily be
incomplete”. 9 ' OEe third view - which prevailed - was that a general formulation should be
adopted that provided a principled basis for distinguishing permissible and impermissible
deprivations of life. 92
46. The approach adopted was that only one exception - the death penalty - would be
expressly speciffied. It was considered that the concepts of arbitrariness and of the most serious
crimes, while complex, were nonetheless accessible to legal reasoning. 93 It was noted,
moreover, that inasmuch as they had juridical meaning, these concepts could be clariffied and
given precision through subsequent jurisprudence. It was submitted that the views of the body
established to implement ICCPR, the Human Rights Committee, along with the comments of
States and the consideration of world public opinion would clarify these concepts as concrete
cases arose. 94
47. In essence this is the same approach that has been used in relation to all of the terms
which have required jurisprudential development in order to give operational clarity to the norms
of human rights law, many of which are inevitably and sometimes intentionally relatively
open-ended. OEe evolving jurisprudence in relation to the terms arbitrary” and most serious
crimes” has developed along two tracks. First, the evaluation of particular sentencing schemes
has facilitated incremental clariffication without requiring attempts to arrive at an exhaustive
enumeration. Second, expert and intergovernmental bodies that have had the time to focus on
the concept in light of the whole corpus of international human rights law have proven capable
of more precisely deffining the scope of the most serious crimes” in terms of general principles.
Moreover, there has been a fruitful interaction between the two modes ofjurisprudential
development. 95
48. The ffirst major attempt to clarify the most serious crimes” provision on the level of
principle was that undertaken by the Economic and Social Council in the early 1980s, resulting
in the safeguards. OEese were draified by the Committee on Crime Prevention and Control of the
Council. Its preliminary draifi included a provision specifying that, Capital punishment may be
imposed only for the most serious crimes.” At the Council's request, the Secretary-General
commented on that draifi. He noted the persistent disparity in the number of oLences liable to
the death penalty” and observed that the norm remained unclear and open to diThering
interpretations”. As a result, he proposed the following reformulation in order that article 6 (2)
of ICCPR and article 3 of the Universal Declaration of Human Rights may be properly
applied”:
Capital punishment may be imposed only for the most serious crimes, it being
understood that their scope should be limited to intentional lethal oThences. Accordingly,
it should be excluded for oThences which are considered to be of a merely political nature,
or for cases in which the political nature of the oThence exceeds its criminal aspects.” 96
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49. OEe provision ultimately adopted by the Economic and Social Council and the
General Assembly largely adopted this approach:
In countries which have not abolished the death penalty, capital punishment may be
imposed only for the most serious crimes, it being understood that their scope should not
go beyond intentional crimes with lethal or other extremely grave consequences.” 97
50. OEe safeguards drafted by the Committee were adopted by the Economic and Social
Council and subsequently by the General Assembly, 98 and the Secretary-General was requested
by the Council to report on the implementation of the safeguards by States. 99 OEe reports of the
Secretary-General have clariffied the meaning accorded in practice to the phrase intentional
crimes with lethal or other extremely grave consequences”. While noting that it has given rise to
wide interpretation by a number of countries”, the Secretary-General concluded that the
meaning of intentional crimes and of lethal or other extremely grave consequences is intended to
imply that the oLences should be life-threatening, in the sense that this is a very likely
consequence of the action”. 100
51. With respect to particular oLences, the Commission on Human Rights and the Human
Rights Committee have determined that a wide range of speciffic oLences fall outside the scope
of the most serious crimes” for which the death penalty may be imposed.' 0 ' These include:
. . . 102 . . . 103 104 105 . 106
abduction not resulting in death, abetting suicide, adultery, apostasy, corruption,
drug-related oLences,' 07 economic crimes, 108 the expression of conscience, 109 financial crimes, 110
embezzlement by offcials,” evasion of military service, 112 homosexual acts, 113 illicit sex, 114
. . 115 116 . . . 117
sexual relations between consenting adults, theifi or robbery by force, religious practice,
and political offences.” 8 OEe last of these has presented particular complexities, inasmuch as
oLences against the State or the political order are oifien drawn broadly so as to encompass both
non-serious and very serious crimes and ambiguously so as to leave the Government discretion
in deffining the oLence. Instances in which the Committee has expressed concern that oLences
carrying the death penalty are excessively vague”,” 9 imprecise”,' 20 ioosely deffined”,' 2 ' so
broad [ as to encompassi a wide range of acts of diThering gravity”,' 22 or couched in terms so
broad that the imposition of the death penalty may be subject to essentially subjective criteria” 123
have included legislation regarding OEpposition to order and national security violations”,' 24
attacks against the internal security of the State” 25 , categories of oThences relating to internal
and external security”,' 26 secession, espionage or incitement to war”, 127 a broadly written
. . . . 128 . . . 129
definition of terrorism, and various other political oThences.
52. OEe Human Rights Committee has reached conclusions regarding the principled content
of the most serious crimes” provision that are consistent with, and give further reffinement to,
those expressed in the safeguards and the comments of the Secretary-General. In one of its
earliest general comments, the Committee observed that: [ tIhe deprivation of life by the
authorities of the State is a matter of the utmost gravity. Therefore, the law must strictly control
and limit the circumstances in which a person may be deprived of his life by such authorities . ...
The Committee is of the opinion that the expression most serious crimes' must be read
restrictively to mean that the death penalty should be a quite exceptional measure.” 130 This
analysis has been greatly reffined over the ensuing decades through the insights provided by
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dealing with the host of concrete situations discussed above, and a review of its jurisprudence
today suggests more precise conclusions. First, the Committee has thus far only found cases
involving murder not to raise concerns under the most serious crimes provision.' 3 ' Second, it
has consistently rejected the imposition of a death sentence for offences that do not result in the
loss of life.' 32 OEird, the Committee's conclusion that the death penalty may not be mandatory
even for murder suggests that a most serious oLence must involve, at a minimum, intentional
acts of violence resulting in the death of a p 5 fl 33 Indeed, the Committee and the
Commission have rejected nearly every imaginable category of oLence other than murder as
falling outside the ambit of the most serious crimes.
53. The conclusion to be drawn from a thorough and systematic review of the jurisprudence
of all of the principal United Nations bodies charged with interpreting these provisions is that the
death penalty can only be imposed in such a way that it complies with the stricture that it must be
limited to the most serious crimes, in cases where it can be shown that there was an intention to
kill which resulted in the loss of life.
D. The prohibition of the mandatory death penalty
54. The Special Rapporteur has addressed communications to a number of Governments
noting that legislation dictating the mandatory imposition of the death penalty is prohibited under
international human rights law. This section more fully elaborates the law underpinning that
prohibition.' 34 The view of the Special Rapporteur has been informed by, and is generally
consistent with, the approach adopted by almost every judicial or quasi-judicial human rights
body in the world. This includes, in particular, the Commission on Human Rights' 35 and the
Human Rights Committee. In addition, the same approach has been adopted by a wide range of
national courts and other judicial bodies such as the Privy Council.' 36 The legal reasoning
underpinning these views is thus highly persuasive when it comes to interpreting international
human rights norms, whether they be based on treaty or customary law.'
55. The intuitive argument against the mandatory death penalty is strong - surely, a human
facing death merits a chance to present reasons why he or she should be allowed to live - but
some still contend that this opportunity may be denied. OEe principal argument that has been
advanced in favour of the compatibility of mandatory death sentences with international
human rights law has been that, insofar as an oLence carrying such a penalty covers only the
most serious crimes”, all of the facts legally relevant to the permissibility of such a sentence
will be considered in the course of obtaining a conviction. To this it has been added that other
factors relevant to a sense ofjustice will be considered should the convict exercise his or her
right to seek pardon or commutation of the sentence”. 138 However, the key insight that has
emerged from the approach adopted by the world's human rights bodies has been that the
proper application of human rights law - especially of its provisions that [ nIo one shall be
arbitrarily deprived of his life” 39 and that [ nIo one shall be subjected to ... cruel, inhuman or
degrading ... punishment” 40 - requires weighing factors that will not be taken into account in the
process of determining whether a defendant is guilty of committing a most serious
As a result, these factors can only be taken into account in the context of individualized
sentencing by the judiciary in death penalty cases. 142
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56. OEe understanding that mandatory death sentences are per se violations of human rights
law originates in the eLorts of a number ofjudicial and quasi-judicial bodies to distinguish
between mandatory death penalty laws that respected human rights and those that did not. Each
began by attempting to discern whether a particular oLence for which the death penalty was
mandatory was suffficiently narrowly drawn that anyone convicted of that oLence could justly
receive the death penalty. OEe process of pursuing this case-by-case approach led to the
conclusion that even if the oLence had been draified to cover only the most serious crimes”,
there would invariably be other factors regarding each individual case that would be relevant to
the legal determination of whether a death sentence would be consistent with also upholding the
defendant's human rights.' 43 The conclusion, in theory as well as in practice, was that respect
for human rights can be reliably ensured in death penalty cases only if the judiciary engages in
case-speciffic, individualized sentencing that accounts for all of the relevant factors.' 44
57. OEe Human Rights Committee's ffirst consideration of the mandatory death penalty
turned on the requirement of ICCPR that a sentence of death may be imposed only for the most
serious In Lubuto v. Zambia the applicant had been sentenced to death pursuant to a
law that made the death sentence mandatory for the oLence of aggravated robbery in which
ffirearms were used. OEe Committee concluded that the oLence was deffined in an overinclusive
manner because it included crimes that did not produce the death or wounding of any
person”.' 46 Because some of the crimes covered by the oLence were not among the most
serious, a mandatory death sentence was inappropriate. OEis was not a ffinding that mandatory
death sentences inherently violate international law. Although the mandatory death penalty in
question was unacceptable, the Committee's tacit view was that its defects could be remedied by
a legislative amendment that would draw an additional distinction in its codiffication of the
oLence.
58. Subsequent cases persuaded the Committee that no such solution was viable in
practice. In other words, legislative classiffications are inherently overinclusive and that
reliable proportionality is achievable only through individualized sentencing.' 47 Thompson v.
Saint Vincent concerned a mandatory death sentence for murder, which was deffined to include
only intentional acts of violence resulting in the death of a person”.' 48 OEe Committee found
that the mandatory death sentence was arbitrary”, even in these circumstances, because it would
be arbitrary for the court not to consider the defendant's personal circumstances” and the
circumstances of the particular oLence” in order to ascertain whether this exceptional form of
punishment is appropriate . ‘ In Kennedy v. Trinidad and Tobago, the Committee went even
further when it found a mandatory death sentence for murder, deffined to include situations
where a person commits a felony involving personal violence and where this violence results
even inadvertently in the death of the victim”, to violate the prohibition on arbitrary deprivation
of life.' 50 OEe problem identified by the Committee in this and subsequent cases was not that an
individual was being sentenced to death for a crime that was not among the most serious.
Rather, it was that conviction for a most serious crime was not per se suffcient to satisfy other
requirements of human rights law.' 5 '
59. OEe same logical path - from testing oLences carrying a mandatory death sentence for
overinclusiveness to requiring individualized sentencing - has been followed by a number of
other judicial organs, including the Judicial Committee of the Privy Council' 52 and the
Supreme Court of India. OEe latter found in Mithu that the sheer range of scenarios in which
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idiosyncratic circumstances would make the death penalty permissible for one, but
impermissible for another in superficially similar circumstances demonstrated the
impossibility of ajust mandatory death penalty, concluding that:
It has to be remembered that the measure of punishment for an oLence is not aLorded
by the label which that oLence bears, as for example OEeifi', Breach of Trust' or
Murder'. The gravity of the oLence furnishes the guideline for punishment and one
cannot determine how grave the oLence is without having regard to the circumstances in
which it was committed, its motivation and its repercussions. The legislature cannot
make relevant circumstances irrelevant, deprive courts of their legitimate jurisdiction to
exercise their discretion not to impose the death sentence in appropriate cases, compel
them to shut their eyes to mitigating circumstances and inflict upon them the dubious and
unconscionable duty of imposing a preordained sentence of death. ... A standardized
mandatory sentence, and that too in the form of a sentence of death, fails to take into
account the facts and circumstances of each particular case. It is those facts and
circumstances which constitute a safe guideline for determining the question of sentence
in each individual case. The infinite variety of cases and facets to each would make
general standards either meaningless boiler plate' or a statement of the obvious. ... OEe
task performed by the legislature while enacting [ mandatory death penalty legislation is
beyond even the present human ability 153
60. The approach uniformly shared by international human rights bodies is entirely consistent
with the Court's conclusion that law ceases to have respect and relevance when it compels the
dispensers of justice to deliver blind verdicts by decreeing that no matter what the circumstances
of the crime, the criminal shall be hanged by the neck until he is dead”. 154
61. Such a conclusion could only be rejected were one to reject the long-standing
jurisprudence of the Human Rights Committee that the right to life is the supreme right” and
that the deprivation of life by the authorities of the State is a matter of the utmost gravity”.
Accordingly, the law must strictly control and limit the circumstances in which a person may be
deprived of his life by such authorities”. 155 It has thus been consistently found in practice that
permitting mandatory death sentences makes it inevitable that some persons will be sentenced to
death even though that sentence is disproportionate to the facts of their crimes. Whatever
inexactitude might be tolerated in determining the size of a ffine or the length of a sentence in
years, uncertainty in the decision between life and death is incompatible with the strict control
with which the law must protect the right to life. As the Supreme Court of the United States held
when ending that country's use of the mandatory death penalty:
the penalty of death is qualitatively diLerent from a sentence of imprisonment, however
long. Death, in its ffinality, diLers more from life imprisonment than a 100-year prison
term diLers from one of only a year or two. Because of that qualitative diLerence, there
is a corresponding difference in the need for reliability in the determination that death is
the appropriate punishment in a speciffic case”. 156
62. It is clear, therefore, that in death penalty cases, individualized sentencing by the
judiciary is required to prevent cruel, inhuman or degrading punishment and the arbitrary
deprivation of life.
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IV. CONCLUSIONS AND RECOMMENDATIONS
63. The prohibition of the execution of those who were under 18 at the time of
committing a crime is of fundamental importance to international human rights law. The
Islamic Republic of Iran is the only country in the world in relation to which I continue to
receive signifficant numbers of credible reports of such sentences being imposed and, in
some cases, carried out on juveniles. Inn is a party to two treaties which explicitly outlaw
this practice. My repeated requests over several years to visit Iran in order to ascertain the
accuracy of these reports and to explore through dialogue ways in which to remedy any
shortcomings have yielded no response. This is despite the fact that a standing invitation”
has been issued. This is now a matter in relation to which the Council will need to respond
appropriately.
64. International human rights law and international humanitarian law are
complementary bodies of law. Suggestions that the extrajudicial executions mandate and,
much more importantly, the Human Rights Council as a whole are excluded from
inquiring into possible violations of human rights or humanitarian law committed in any
context in which an armed conffct may or may not be occurring would dramaticafty
reduce the relevance of the Council and would eliminate aft public scrutiny under
international law for such violations. The Council should uphold and continue its very
long-established practice - dating back almost a quarter of a century in the case of this
mandate alone - of scrutinizing afteged violations of both human rights and humanitarian
law, even if committed in the context of an armed conffct.
65. The death penalty must, under international law, only be applied for the most
serious crimes. This standard, like all others in international human rights law, cannot be
interpreted subjectively by each individual country without making a mockery of the basic
principle. Over the past two decades international jurisprudence from a wide range of
sources has succeeded in bringing clarity to the question of which crimes can legitimately
be classiffied as being the most serious”. As a result, the death penalty can only be
imposed in cases where it can be shown that there was an intention to kill which resulted in
the loss of life.
66. Making the death penalty mandatory for certain crimes, in such a way that a judge
is prohibited from taking the circumstances of an individual accused person into account in
sentencing, is iftegal under international human rights law. This is not to say that countries
which retain the death penalty are unable to apply that penalty in the majority of cases
involving a most serious crime, but they are obligated to at least provide for the possibility
that a judge might ffind a death sentence impermissible in a particular individual's case
because of extenuating circumstances of one kind or another.
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Annex I
MISSION REQUESTS OUTSTANDING AS OF 7 DECEMBER 2006
Bangladesh. Request sent on 20 March 2006. Follow-up request sent on
16 November 2006. No response received. HRC member up to 2009.
Brazil. Request sent on 11 July 2006. Government indicated acceptance in principle but
that pre-election timing was not appropriate. Renewed request sent, post-elections,
on 16 November 2006. No response.
China. Request sent on 24 March 2005. Meeting with the Permanent Representative in
Geneva in June 2005. No response. HRC member up to 2009.
Central African Republic. Request sent on 16 November 2006. No response.
El Salvador. Request sent on 20 March 2006. No substantive reply.
India. Request sent in October 2000. Follow-up request sent on 1 December 2005.
Meeting with the Permanent Representative in Geneva in June 2006. Follow-up requests sent on
6 September 2006 and 16 November 2006. No response. HRC member up to 2007.
Islamic Republic of Iran. Request sent on 14 January 2004, noting that a standing
invitation had been extended by the Government. Immediate response indicating that a visit
would be acceptable in principle but would have to be considered in the context of
missions sought by other special procedures. Follow-up letter sent on 11 February 2005.
On 4 April 2005, meeting with Permanent Representative in Geneva. Follow-up letters sent on
18 April 2005 and 9 August 2005. Further meeting with Permanent Representative in Geneva
on 14 October 2005. Follow-up letters sent on 17 October 2005, and 16 November 2006. No
substantive response. Standing invitation.
Indonesia. Request sent on 27 September 2004. Follow-up sent on 13 March 2006. No
substantive response. HRC member up to 2007.
Israel. Request sent on 16 June 2006 and meeting with Permanent Representative in
Geneva. Acknowledgement received but no substantive response.
Kenya. Request sent on 20 March 2006. Follow-up request sent on 16 November 2006.
No response.
Lao People's Democratic Republic. Request sent on 20 March 2006. No response.
Nepal. Request sent on 27 September 2004. No substantive reply.
Pakistan. Request sent in October 2000. Follow-up request sent on 1 December 2005.
No substantive reply. HRC member up to 2008.
Peru. Request of 30 November 2005. Accepted in January 2006. HRC member up
to 2008. Standing invitation.
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Russian Federation. Request sent in 2003. Follow-up request sent on
17 September 2004. Aifier consultation with government offcials the request was
redraified and sent on 14 June 2005. Meeting with Deputy Permanent Representative in
Geneva in June and October 2006. No substantive reply.
Saudi Arabia. Request sent on 11 May 2005. Government responded on 27 July 2005
that time was not right. Follow-up letter sent on 24 August 2005. HRC member up to 2009.
Singapore. Request sent on 16 November. Government responded on 1 December 2006
requesting more information as to the purpose of the visit and its relationship to my mandate.
Trinidad and Tobago. Request sent on 16 November 2006. Acknowledgement
received. No substantive response.
Thailand. Request sent on 8 November 2004. Written information provided by
Government on 31 January and 8 March 2005. Requests renewed on 30 August 2005 and
10 November 2005. No substantive response.
Togo. Request sent on 11 May 2005. Accepted on 26 October 2005. On 23 March 2006
a letter was sent requesting conffirmation of specific dates. No response was received.
Uganda. Request sent on 20 March 2006. No response.
United States of America. Request sent on 16 November 2006. No reply.
Uzbekistan. Request sent on 19 May 2005. Government replied in a press statement
dated 20 May 2005 alleging prejudgment and preconception” on my part. No further response.
Venezuela. Request sent on 16 November 2006. No reply.
Viet Nam. Request sent on 20 March 2006. Follow-up sent on 16 November 2006. No
reply.
Yemen. Request sent on 16 November 2006. Government response on
20 November 2006 requesting more information in order to ensure the highest possible level of
cooperation and support from the Government with the Special Rapporteur”. Response sent by
the Special Rapporteur on 5 December 2006.
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Annex II
NOTES TO THE REPORT
1 The term extrajudicial executions” is used in this report to refer to executions other than those
carried out by the State in conformity with the law. As explained in my previous report [ tIhe
terms of reference of this mandate are not best understood through efforts to deffine individually
the terms extrajudicial', summary' or arbitrary', or to seek to categorize any given incident
accordingly”. Rather, the most productive focus is on the mandate itself, as it has evolved over
the years through the various resolutions of the General Assembly and the Commission”
(E/CN.4/2005/7, para. 6).
2 See note 3 below.
In order to comply with strict reporting deadlines, and to give Governments a minimum of two
months to reply, the present report reflects communications sent between 1 December 2005 and
30 September 2006, and responses received from Governments between 1 December 2005
and 1 December 2006. A comprehensive account of communications sent to Governments up to
1 December 2006, along with replies received up to the end of January 2007, and the relevant
observations of the Special Rapporteur, are reflected in addendum ito this report.
This report was extensively criticized by some Council members at the third session, but most
criticism was based upon a leaked version of a draifi which was later signifficantly revised.
General Assembly Res. 61/173 (2006), para. 13.
6 E/CN.4/2005/7, paras. 41-54.
See, e.g., Communication of 4 May 2006 from the United States.
8 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996,
I.C.J Reports 1996, para. 25.
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory
Advisory Opinion of 9 July 2004, I. Cf Reports 2004, para. 106; ArmedActivities on the
Territory of the Congo (Democratic Republic of the Congo v. Uganda), I. Cf Reports 2005,
para. 216.
10 Id., at paras. 216-20, 345(3).
Human Rights Committee, General Comment No. 31(2004) on the nature of the general legal
obligation imposed on States parties to the Covenant (art. 2), CCPRIC/2 i/Rev, i/Add. 13 (2004),
para. ii.
12 CHR Res. 2005/34 and GA Res. 61/173.
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13 A lengthier list of examples is provided in the communication sent to the United States on
30 November 2006. See also Daniel O'Donnell, Trends in the Application of International
Humanitarian Law by United Nations Human Rights Mechanisms, 324 mt. 1 Rev. Red Cross 481
(1998).
14 CHR Res. 1992/5-1/1, para. 1.
15 Id. at para. 9.
16 ECOSOC Decision 1992/305.
17 CHR Res. 1994/72, para. 4.
18 Id. at para. 7. Taking note of this resolution, the ECOSOC approved ... [ t he
Commission's ... request that the Special Rapporteur ... continue to submit periodic reports ...
on the implementation of Commission resolution 1994/72”, ECOSOC Res. 1994/262.
19 CHR Res. S-3/1, para. 1.
20 Id. OEis resolution was explicitly endorsed by ECOSOC Decision 1994/223.
21 GA Res. 60/25 1 (2006).
22 CHR Res. 1982/29, para. 2; ECOSOC Res. 1982/35, para. 2.
23 See communication sent to the United States on 30 Nov. 2006.
24 E/CN.4/1983/16, paras. 29-39.
25 Id. at paras. 33-34.
26 CHR Res. 1983/36, para. 3.
27 E/CN.4/1992/30, p. 176.
28 CHR Res. 1992/72, para. 3.
29 E/CN.4/1992/30, para. 649(f) and para. 651(b).
30 The International Committee on the Red Cross (ICRC), although exercising valuable
humanitarian oversight in such matters, does not act in a manner which satisffies the need for
public accountability.
31 Charges Reduced in Iraq Killing”, Los Angeles Times, Dec. 8, 2004; U.S. Offcer Calls
Killing an Act of Mercy”, New York Times, 9 September, 2004.
32 Id.
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Army Offcer Convicted in Iraqi's Death Is Freed”, New York Times, April 2, 2005.
Mercy killing' of Iraqi revives 01 conduct debate”, LosAngeles Times, Nov. 5,2004.
i .
36 Id
U.S. soldier convicted in mercy killing”, Desert News (Salt Lake City), Jan. 15, 2005.
38 Army Offficer Calls for Death hi Slaying Case”, New York Times, September 3, 2006.
Geneva Convention I, 1949, Art. 12. Article 12 of Geneva Convention I I contains an
equivalent prohibition concerning wounded or shipwrecked at sea.
40 ICRC Commentary to the First Geneva Convention of 1949, p. 138.
41 Id
42 . . . .
Additional Protocol Ito the Geneva Conventions (1977), Art. 75(2)(a)(i). The Commentary
to this provision states explicitly that cases in which the status of prisoner of war or of protected
person were denied to certain individuals, the protection of Article 75 must be applied to them as
a minimum”. Commentary to the First Additional Protocol to the Geneva Conventions, p. 866,
para. 3014. For a similar situation with respect to another provision of the Geneva Conventions
(Fourth Geneva Convention, Art. 4), See Congo v. Uganda, I.C.J Reports 2005, Judgment of
19 Dec. 2005, Separate Opinion of Judge Simma, para. 26 ( OEe gap thus leifi by Geneva
Convention Article 4 has in the meantime been - deliberately - closed by Article 75 of Protocol I
Additional to the Geneva Conventions of 1949.”).
Protocol I, Art. 8(a). As the ICRC Commentary makes clear, the Protocol therefore does not
retain the distinction made between these two categories by the Conventions as regards the
wounded and sick. On this basis a wounded soldier and a wounded civilian are entitled to
identical protection.” Commentary to Protocol j, p. 117, para. 304. See also First Additional
protocol to the Geneva Conventions, Article 10.
Case Concerning Military andParamilitaryActivities in and agai nst Nicaragua
(Nicaragua v. United States ofAmerica), 1986 I. Cf Reports, p. 114, para. 218.
Geneva Conventions of 1949, Common Article 3.
46 Additional Protocol II, Art. 7(1).
Additional Protocol II, Art. 8.
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48 International Committee of the Red Cross, Customary International Humanitarian Law
(Jean-Marie Henckaerts & Louise Doswald-Beck, eds. 2005) (hereinaifier ICRC Study on
Customary law”), pp. 306-308 (Rule 87 - civilians and persons hors de combat must be treated
humanely), pp. 311-314 (Rule 89 - prohibition of murder of persons hors de combat),
pp. 403-405 (Rule 111 - protection of wounded, sick, and shipwrecked).
See, e.g., ICRC Commentary to the First Geneva Convention of 1949, p. 136 ( It is only the
soldier who is himself seeking to kill who may be killed. OEe abandonment of all aggressiveness
should put an end to aggression.”).
50 Mercy Killing' of Iraqi Revives GI Conduct Debate”, supra note 34.
First Geneva Convention, art. 15; Second Geneva Convention, Art. 18; Fourth Geneva
Convention, Art. 16(2); Additional Protocol I, Art. 10; Geneva Conventions, Common Art. 3;
Additional Protocol II, Art. 8, ICRC Study on Customary Law, supra note 49, at pp. 396-399
(Rule 109).
52 First Geneva Convention, Arts. 12(2), 15(1); Second Geneva Convention, Arts. 12(2), 18;
Fourth Geneva Convention, Art. 16(1); Geneva Conventions, Common Art. 3; Additional
Protocol II, Arts. 7-8; ICRC Study on Customary law, supra note 49, at pp. 400-403.
E/CN.4/1984/29, paras. 38-40.
ECOSOC Res. 1985/50; see generally Arbitrary and Summary Executions, Note by the
Secretary-General, E/AC. 57/1984/16 (25 January 1984).
E/CN.4/1985/17, para. 24.
56 E/CN.4/1985/17, paras. 3 1-38.
57 .
See, e.g., E/CN.4/1997/60, para. 91: [ The Safeguards state thati the scope of crimes subject
to the death penalty should not go beyond intentional crimes with lethal or other extremely grave
consequences. The Special Rapporteur concludes from this, that the death penalty should be
eliminated for crimes such as economic crimes and drug-related offences. In this regard, the
Special Rapporteur wishes to express his concern that certain countries, namely China, the
Islamic Republic of Iran, Malaysia, Singapore, OEailand and the United States of America,
maintain in their national legislation the option to impose the death penalty for economic and/or
drug-related oLences.”
58 This list is not comprehensive. In the earlier years, especially, the communications addenda
to the reports of the Special Rapporteur oifien do not include the full text of communications, at
times making the determination of the norms at issue diLicult from today's vantage point.
E/CN.4/2006/53/Add.4, para. 35 (Nigeria); E/CN.4/2006/53/Add.2, para. 150 (Sudan);
E/CN.4/2003/3, para. 60 (Nigeria and Sudan); E/CN.4/2000/3, para. 70.
60 E/CN. 4/2006/53/Add. 2, para. 150 (Sudan).
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61 E/CN.4/1994/7, para. 475 (Pakistan).
62 E/CN.4/1994/7, para. 209 (China).
63 E/CN.4/2006/53/Add.1, pp. 87-88 (Islamic Republic of Iran).
64 E/CN.4/1994/7, para. 209 (China).
65 E/CN.4/2005/7/Add.1, para. 721 (OEailand).
66 E/CN.4/1999/39/Add.1, para. 236 (Thailand); E/CN.4/2004/7/Add.1, paras. 524-525
(Singapore; see also E/CN.4/2004/7, para. 51).
67 AI51/457 (1996), para. 107.
68 E/CN.4/2002/74, para. 114; E/CN.4/2001/9, para. 83; AI5 1/457 (1996), para. 107.
69 E/CN.4/2006/53/Add.1, pp. 307-3 17 (Yemen).
70 E/CN.4/1998/68/Add.1, para. 227 (Iran); E/CN.4/2006/53/Add.1, pp. 307- 317 (Yemen).
71 E/CN.4/2002/74/Add.2, para. 546 (Somalia; see also E/CN.4/2002/74, para. 65);
E/CN.4/2006/53/Add.2, para. 150 (Sudan); E/CN.4/2006/53/Add.1, pp. 108-110 (Islamic
Republic of Iran).
72 E/CN.4/2000/3, para. 70.
E/CN.4/1998/68/Add.1, para. 227 (Iran); E/CN.4/2006/53/Add.1, pp. 307-3 17 (Yemen);
E/CN.4/2002/74, para. 114; E/CN.4/2001/9, para. 83.
E/CN.4/2000/3, para. 70.
E/CN.4/2000/3/Add.1, para. 110 (China).
76 E/CN.4/2000/3/Add.1, para. 111 (China).
E/CN.4/2002/74/Add,.2, para. 456 (Nigeria; see also E/CN.4/2002/74, para. 115).
78 E/CN.4/2005/7/Add.2, para. 56 (Sudan).
E/CN.4/2006/53/Add.4, para. 35 (Nigeria).
80 E/CN.4/1994/7, para. 209 (China).
81 E/CN.4/2002/74, para. 114; E/CN.4/2001/9, para. 83; E/CN.4/2000/3, para. 70.
82 E/CN.4/2002/74/Add.2, paras. 338, 342 (Islamic Republic of Iran; see also E/CN.4/2002/74,
para. 116).
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83 The provisions protecting the right to life in the American Convention on Human Rights
also specify that [ n1 o one shall be arbitrarily deprived of his life” (art. 4(1)) and that the death
penalty may be imposed only for the most serious crimes” (art. 4(2)) but also states that,
Jii no case shall capital punishment be inflicted for political offenses or related common
crimes” (art. 4(4)). With respect to the African regional human rights system, Although the
African Charter of Human and Peoples' Rights is silent on the subject of capital punishment,
the African Commission on Human and Peoples' Rights has called upon states that maintain
the death penalty to limit the imposition of the death penalty only to the most serious crimes'.”
William A. Schabas, International law and the death penalty: reflecting or promoting
change?”, in Capital Punishment: Strategies forAbolition (eds. Hodgkinson & Schabas 2004),
p. 46.
84 . , . , , .
See Marc J. Bossuyt, Guide to the Travaux Preparatoires of the International Covenant on
Civil and Political Rights (1987), pp. 113-145.
85 See, e.g., E/CN.4/SR.152, paras. 12-13 ( His delegation's view [ wasi that the word law', as
understood in the covenant, referred exclusively to laws which were not contrary to the
principles of the [ Universafl Declaration [ of Human Rights l. ... Unless such a formula was
included, the text of article S [ now 61 would be acceptable to any dictator, as there would be
nothing to prevent him from enacting laws contrary to the spirit of the Declaration.”);
E/CN.4/SR. 140, para. 38 ( [ TIhe greatest danger to be guarded against was that of actions of the
State against the individual. ... Comparatively primitive and incautious in their methods until
recently, totalitarian states had since become very careful to preserve an appearance of legality
while arbitrarily killing their opponents.”).
86 A12929, p. 83, para. 3. See also Manfred Nowak, CCPR Commentary (2nd revised ed. 2005),
pp. 127-128: Although the term arbitrarily' was criticized as too vague, the HRComm [ Human
Rights Commissioni ultimately opted for it aifier lengthy discussion. ... [ In the OEird Committee
of the General Assembly: Despite strong criticism of the vagueness of the word arbitrarily' and
a Dutch proposal that Art. 6 be draified along the same lines as Art. 2 of the ECHR, the majority
insisted on the formulation adopted by the HRComm, even though its meaning had not been
clariffied. Several delegates took the opinion that arbitrarily was synonymous with the term
without due process of law' common in Anglo-American law. Others argued that it contained
an ethical component, since national legislation could also be arbitrary. The Committee of
Experts, which had taken up the interpretation of this term at the request of the Committee of
Ministers of the Council of Europe, concurred with the view of the Chilean delegate in the
HRComm that arbitrary deprivation of life contained elements of unlawfulness and iniustice, as
well as those of capriciousness and unreasonableness.”
87 A12929, pp 83-84. The recognition that a death sentence cannot be imposed contrary to the
provisions of the present Covenant and to the Convention on the Prevention and Punishment of
the Crime of Genocide” indicates another key limitation on what may constitute a capital crime.
Under international law, each individual may as of right exercise liberty of movement; choose
his or her own residence; leave any country; enjoy individual and family privacy; think freely,
adopt a religion or belief of his or her choice; manifest his or her religion or belief in worship,
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observance, practice and teaching; hold opinions without interference; express him or herself
freely; seek, receive and impart information and ideas of all kinds; assemble peacefully;
associate with others; form or join a trade union; marry and found a family; take part in the
conduct of public aLairs; to vote, and to stand as a candidate for election. ICCPR, arts. 12, 17,
18, 19, 21, 22, 23, 25. The exercise of these and other human rights cannot be punished with
death; indeed, such conduct cannot be punished at all. Even when the enjoyment of a right might
be subjected to a legitimate limitation or derogation, its exercise cannot be considered to rise to
the level of a most serious crime” for which the death penalty might be imposed. See also
E/CN.4/2006/53/Add.1, pp. 307-3 17 (Yemen); E/CN.4/1998/68/Add.1, paras. 221-227 (Islamic
Republic of Iran); Nigel Rodley, The Treatment ofPrisoners Under International Law (2nd ed.
1999), p. 220.
88 A12929, p. 82, para. 1.
89 A12929, p. 82, para. 1.
90 A12929, p. 82, para. 2. OEis same basic debate also played out over the more speciffic concept
of the most serious crimes. The term most serious crimes” was criticized as lacking precision”
and some suggested the explicit exclusion of particular categories of oLences from the concept.
A12929, page 84, para. 6. However, exhaustively enumerating examples proved as diffcult in
the abstract as it had under the broader rubric of arbitrary deprivation.
91 A12929, p. 82, para. 2; see also E/CN.4/SR.140, paras. 2, 13.
92 A12929, p. 82, para. 3.
See, e.g., E/CN.4/SR. 140, para. 3 ( OEe precise signifficance of the word arbitrarily' had been
very fully discussed by the Commission on Human Rights and by the OEird Committee of the
General Assembly and it had been concluded that it had a precise enough meaning. It had been
used in several articles in the Universal Declaration of Human Rights and referred both to the
legality and the justice of the act.”).
On the contemplated role of the HRC and of world public opinion, see, e.g., E/CN.4/SR. 139,
para. 8: As the Commission intended to include implementation measures in the covenant, it
would provide for an international body to focus world public opinion on the acts of countless
signatories to the covenant. OEat international body and public opinion would easily judge what
was arbitrary and what was not.”
On the role of States, see, e.g., E/CN.4/SR. 139, para. 45: Jii time a sort of jurisprudence on the
subject would certainly be established based on the comments of governments, and it would
subsequently be possible to supplement the covenant in the light of that jurisprudence.” OEe
sense of this observation was clariffied by the delegate's observation that the list of particular
non-arbitrary deprivations of life proposed by some for inclusion in the text of the ICCPR would,
despite its exclusion, form one of the basic elements in any jurisprudence of that sort.”
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A particularly signifficant example is that the recognition that mandatory death sentences were
per se violations of human rights law stemmed from a gradual understanding through the
adjudication of concrete cases that the most serious crimes” limitation did not fully capture the
concept of the non-arbitrary imposition of capital punishment.
96 Arbitrary and Summary Executions, Note by the Secretary-General, E/AC.57/1984/16,
paras. 40-43 (25 January 1984).
Safeguards, para. 1.
98 ECOSOC Res. 1984/50 (25 May 1984); GA Res. 39/118 (14 December 1984).
ECOSOC Res. 1990/5 1 (24 July 1990).
100 Capital punishment and implementation of the safeguards guaranteeing protection of the
rights of those facing the death penalty, E/2000/3 (31 March 2000), para. 79.
Additional insights are provided by the views of the European Union. Aifier reviewing the
resolutions of the GA and the provisions of the ICCPR and the Safeguards, in its Guidelines to
EU Policy Towards Third Countries on the Death Penalty, the European Council determined
that, among the minimum standards that should be met by all States maintaining the death
penalty, is:
Capital punishment may be imposed only for the most serious crimes, it being
understood that their scope should not go beyond intentional crimes with lethal or
other extremely grave consequences. OEe death penalty should not be imposed for
non-violent ffinancial crimes or for non-violent religious practice or expression of
conscience. (Guidelines to EU Policy Towards Third Countries on the Death Penalty
(3 June 1988), at .)
In keeping with the erga omnes character of the right to life, the EU has elected to make
d&marches to non-EU countries regarding practices deviating from this and other minimum
standards. (See Roger Hood, The Death Penalty: A Worldwide Perspective (3rd ed. 2002),
pp. 16-18.)
101 OEis kind of legal offence-specific legal analysis also takes place at the national level. For a
number of papers working out the implications of the most serious crimes standard for particular
oLences, ranging from illegally raising capital to smuggling precious metals, within a single
legal system see The Road to the Abolition of the Death Penalty in China: Regarding the
Abolition of the Non-Violent Crime at the Present Stage (Press of Chinese People's Public
Security University of China, 2004).
102 CCPRICO/72/GTM, para. 17(2001) (Guatemala).
103 AI50/40, para. 35 (1995) (Sri Lanka).
104 CCPRIC/79/Add.25, para. 8 (1993) (Islamic Republic of han).
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105 CCPR C/79/Add.85, para. 8 (1997) (Sudan).
106 CCPRIC/79/Add.25, para. 8 (1993) (Islamic Republic of Iran).
107 A150/40, para. 35 (1995) (Sri Lanka); A155/40, para. 13 (2000) (Kuwait).
108 CCPRIC/79/Add.1, para. 5 (1992) (Algeria); CCPRIC/79/Add.25, para. 8(1993) (Islamic
Republic of Iran).
109 CHR Res. 1999/6 1, para. 3(b) (28 April 1999); CHR Res. 2002/77, para. 4(c)
(25 April 2002); CHR Res. 2005/59 (20 April 2005), para. 7(f).
110 CHR Res. 1999/61, para. 3(b) (28 April 1999); CHR Res. 2002/77, para. 4(c)
(25 April 2002); CHR Res. 2005/59 (20 April 2005), para. 7(f).
111 CCPRIC/79/Add.85, para. 8 (1997) (Sudan).
112 CCPRIC/79/Add.84, para. 11(1997) (Iraq).
113 CCPRIC/79/Add.85, para. 8 (1997) (Sudan).
114 CCPRIC/79/Add.85, para. 8 (1997) (Sudan).
115 CHR Res. 2002/77, para. 4(c) (25 April 2002); CHR Res. 2005/59 (20 April 2005),
para. 7(f).
116 CCPRIC/79/Add.85, para. 8 (1997) (Sudan); CCPRICO/83/KEN, para. 13 (2005) (Kenya).
117 CHR Res. 1999/61, para. 3(b) (28 April 1999); CHR Res. 2002/77, para. 4(c)
(25 April 2002); CHR Res. 2005/59 (20 April 2005), para. 7(f).
118 CCPRIC/79/Add. 101, para. 8 (1998) (Libyan Arab Jamahiriya).
119 CCPRICO/75/VNM, para. 7(2002) (Viet Nam); CCPRIC/79/Add.101, para. 8(1998)
(Libyan Arab Jamahiriya).
120 CCPRICO/71/SYRIAdd.1, para. 9(2001) (Syrian Arab Republic).
121 CCPRIC/79/Add.116, para. 14 (1999) (Cameroon).
122 CCPRIC/79/Add.23, para. 8 (1993) (Egypt).
123 CCPRICO/72/PRK, para. 13 (2001) (Democratic People's Republic of Korea).
124 CCPRICO/75/VNM, para. 7 (2002) (Viet Nam).
125 CCPRICO/76/TGO, para. 10 (2002) (Togo).
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126 A155/40, para. 13 (2000) (Kuwait).
127 CCPRIC/79/Add.116, para. 14 (1999) (Cameroon).
128 CCPRIC/79/Add.23, para. 8 (1993) (Egypt).
129 CCPR CO/71/SYRIAdd. 1, para. 9 (2001) (Syrian Arab Republic); CCPR/CO/72/PRK,
para. 13(2001) (Democratic People's Republic of Korea); CCPRIC/79/Add. 101, para. 8(1998)
(Libyan Arab Jamahiriya).
130 HRC, General Comment 6(1982) (emphasis added); see also Baboeram et al. v. Suriname,
Communication No. 146/1983 and 148 to 154/1983 (1985), para. 14.
131 In a series of communications concerning the extradition of persons to a country in which
they could face the death penalty, the HRC evaluated whether extradition would expose the
communication's author to a real risk of a violation of Article 6, paragraph 2 [ of the ICCPRI” in
the destination country, and it did not find a violation where the crime in question was murder.
Kindler v. Canada, Communication No. 470/1991, para. 14.3 (1993) (no violation where
extradition was for premeditated murder, undoubtedly a very serious crime”); Chitat Ng v.
Canada, Communication No. 469/1991, para. 15.3 (1994) ( OEe Committee notes that Mr. Ng
was extradited to stand trial on 19 criminal charges, including 12 counts of murder. L sentenced
to death, that sentence, based on the information which the Committee has before it, would be
based on a conviction of guilt in respect of very serious crimes.”); Cox v. Canada,
Communication No. 539/1993, para. 16.2 (1994) (no violation where extradition was for
complicity in two murders, undoubtedly very serious crimes”). See also Roger Judge v.
Canada, Communication No. 829/1998 (2003) (ffinding extradition to violate ICCPR, art. 6
where extraditing country had abolished the death penalty, regardless whether extradition was on
a most serious crime).
132 OEis has been stated explicitly in the concluding observations on some country reports. See
CCPRIC/79/Add.25, para. 8 (1993) (Islamic Republic of Iran) ( Jii the light of the provision of
article 6 of the Covenant, requiring States parties that have not abolished the death penalty to
limit it to the most serious crimes, the Committee considers the imposition of that penalty ... for
crimes that do not result in loss of life, as being contrary to the Covenant.”); CCPRICO/83/KEN,
para. 13 (2005) (Kenya) ( [ TIhe Committee notes with concern ... that the death penalty applies
to crimes not having fatal or similarly grave consequences, such as robbery with violence or
attempted robbery with violence, which do not qualify as most serious crimes' within the
meaning of article 6, paragraph 2, of the Covenant.”)
133 Thompson v. Saint Vincent and the Grenadines, Communication No. 806/1998 (2000),
para. 8.2-3. See also E/CN.4/1998/68/Add.3, para. 21: OEe notion of most serious crimes was
later developed in the Safeguards guaranteeing protection of the rights of those facing the death
penalty, according to which the most serious crimes are those llntentional crimes with lethal or
other extremely grave consequences'. OEe Special Rapporteur considers that the term
llntentional' should be equated to premeditation and should be understood as deliberate intention
to kill.”
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134 Previous reports on the Special Rapporteur have also discussed the prohibition of mandatory
death sentences briefly. A161/311, para. 57; E/CN.4/2005/7, paras. 63-64; E/CN.4/2002/74,
paras. 114, 120; E/CN.4/2001/9, para. 83; AI55/288, paras. 34, 36; E/CN.4/2000/3, paras. 70, 73,
98; E/CN.4/1999/39, paras. 63, 82.
135 CHR Res. 2005/59, para. 7 (f).
136 OEe ffirst national court to strike down the mandatory death penalty as a violation of rights
was that of the United States Supreme Court in 1976. Woodson et al. v. North Carolina,
428 U.S. 280 (1976); Sumner v. Shuman, 483 U.S. 66 (1987) (clarifying that the holding in
Woodson did not have exceptions). The Supreme Court of India invalidated that country's
last remaining mandatory death penalty law in 1983, and the Constitutional Court of Uganda
followed suit in 2005. Mithu v. State ofPubiab, 2 5CR. 690 (1983); Susan Kigula and
416 others v. Attorney General, Constitutional Petition No. 6 of 2003, Judgement of
10 June 2005.
Influenced by the reasoning of the US and Indian decisions, international treaty bodies began
contributing to the jurisprudence in the mid-i 990s. OEe HRC ffirst found a mandatory death
penalty law incompatible with the ICCPR in 1995 and did so in more general terms in 2000.
Lubuto v. Zambia, Human Rights Committee, No. 390/1990 (1995); Thompson v. Saint Vincent,
Human Rights Committee, No. 806/1998 (2000). OEe Inter-American Commission on Human
Rights reached the same conclusion in 1999. Rudolph Baptiste v. Grenada, Inter-American
Commission on Human Rights, Case 11.743, Report No. 38/00 (1999). OEe Inter-American
Court of Human rights conffirmed this jurisprudence in 2002. Hilaire, Constantine and Benlamin
et al. v. Trinidad and Tobago, Series C, No. 94 (21 June 2002).
The most influential recent judgements have been those of the Judicial Committee of the
Privy Council. The Privy Council ffirst considered the constitutionality of a mandatory death
penalty law in Ong Ah Chuan v. Public Prosecutor (1980) and found that law constitutional.
Ong Ah Chuan v. Public Prosecutor (1980) 3 WLR 855 (Privy Council; appeals from the Court
of Criminal Appeals of Singapore). However, in subsequent cases the Privy Council has rejected
this line of reasoning and established that the mandatory death penalty is incompatible with
human rights. OEe question of whether the mandatory death penalty violated individual
human rights was settled by 2002. Reyes v. The Queen [ 20021 2 App. Cas. 235 (P.C.),
judgement of ii March 2002 (Belize); Queen v. Hughes [ 20021 2 App. Cas. 259 (P.C.),
judgement of March 2002; Fox v. The Queen [ 20021 2 App. Cas. 284 (P.C.), judgement of
March 2002. See also Eastern Caribbean Court of Appeal, Spence and Hughes v. The Queen,
Crim. App. Nos. 20 of 1998 and 14 of 1997, judgement of 2 April 2001. Later cases have
primarily concerned questions of whether those rights were enforceable under particular
constitutional schemes. See Joanna Harrington, The Challenge to the Mandatory Death Penalty
in the Commonwealth Caribbean, American Journal of International Law, Vol. 98, No. 1
(January 2004), pp. 126-140. In a 2006 case, the Privy Council noted that the evolution of its
jurisprudence was due not to the changing content of the law but to the gradual process by which
judges came to understand that law: It is ... clear that it took some time for the legal eLect of
entrenched human rights guarantees to be appreciated, not because the meaning of the rights
AIHRC/4/20
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changed but because the jurisprudence on human rights and constitutional adjudication was
unfamiliar and, by some courts, resisted.” Bowe v. The Queen, Privy Council Appeal No. 44
of 2005 (8 March 2006) (appeal from the Court of Appeal of the Bahamas), para. 42.
137 OEe Special Rapporteur has, for example, engaged in dialogue with several Governments on
the universal signifficance of the jurisprudence of the Judicial Committee of the Privy Council.
E/CN.4/2006/53/Add.1, pp. 34-36, 199-206, 247-249.
138 ICCPR, art. 6(4).
139 ICCPR, art. 6(1).
140 ICCPR, art. 7. Note that insofar as a violation of Article 7 results in the deprivation of life it
also constitutes a violation of Article 6. See ICCPR, art. 6(2): sentence of death may be
imposed only ... not contrary to the provisions of the present Covenant”.
141 See also E/CN.4/2006/53/Add. 1, 232-242.
142 ICCPR, art. 14(5): Everyone convicted of a crime shall have the right to his conviction and
sentence being reviewed by a higher tribunal according to law.”
143 OEe relevance of a range of factors has been noted by judicial and quasi-judicial bodies.
See, e.g., Thompson v. Saint Vincent and the Grenadines, Communication No. 806/1998 (2000),
para. 8 ( defendant's personal circumstances” and the circumstances of the particular
oLence”); Hilaire, Constantine and Benlamin et al. v. Trinidad and Tobago, Series C, No. 94
(21 June 2002), para. 87 ( prior criminal record of the oLender”, the subjective factors that
could have motivated his conduct”, the degree of his participation in the criminal act”, the
probability that the oLender could be reformed and socially readapted”, whether the death
penalty is the appropriate punishment or not for the speciffic case in light of the circumstances of
the oLender's conduct”).
144 While this explanation of the reasoning behind these cases is somewhat stylized, it clariffies
far more than it obscures.
145 ICCPR, art. 6(2).
146 Lubuto v. Zambia, Communication No. 390/1990 (1995), para. 7.2.
147 OEe distinction between evaluating general legislation and individual sentences under human
rights law can also be understood as an example of the diLerence between macro-policy at the
central level” and the micro-policy of speciffic law enforcement bodies”. See Liu Renwen,
Strict Restriction on Death Penalty and its Paths in China” in The Road to the Abolition of the
Death Penalty in China: Regarding the Abolition of the Non- Violent Crime at the Present Stage
(Press of Chinese People's Public Security University of China, 2004).
148 Thompson v. Saint Vincent and the Grenadines, Communication No. 806/1998 (2000),
para. 8.2.
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149 Ibid.
150 Kennedy v. Trinidad and Tobago, Communication No. 845/1998 (2002), para. 7.3.
OEe HRC has affrmed its holding in Thompson in a number of its other ffinal views.
Kennedy v. Trinidad and Tobago, Communication No. 845/1998 (2002); Carpo et al. v. The
Philippines, No. 1077/2002 (2002); Pagdayawon Rolando v. Philippines, Communication
No. 1110/2002 (2004); RamilRayos v. Philippines, Communication No. 1167/2003 (2004);
Hussain et al. v. Guyana, Communication No. 862/1999 (2005); Mr. Webby Chisanga v.
Zambia, Communication No. 1132/2002 (2005); Lawrence Chan v. Guyana, Communication
No. 913/2000 (2006); Larrai aga v. the Philippines, Communication No. 1421/2005 (2006);
RaymondPersaud andRampersaud v. Guyana, Communication No. 812/1998 (2006).
152 . . . . . . . . . .
OEe logical structure of the conclusion reached by these various judicial and quasi-judicial
bodies was clearly stated by the Privy Council in Bowe in the following syllogism:
(1) It is a fundamental principle of just sentencing that the punishment imposed on a
convicted defendant should be proportionate to the gravity of the crime of which he has been
convicted;
(2) The criminal culpability of those convicted of murder varies very widely;
(3) Not all those convicted of murder deserve to die.
Bowe v. The Queen, Privy Council Appeal No. 44 of 2005 (8 March 2006) (appeal from the
Court of Appeal of the Bahamas), para. 29.
153 Mithu v. State ofPubiab, 2 5CR. 690, 704, 707-708 (1983) (internal citations and quotation
marks omitted).
154 Mithu v. State ofPubiab, 2 5CR. 690, 704 (1983).
155 HRC, General Comment 6(1982) (emphasis added); see also Baboeram et al. v. Suriname,
Communication No. 146/1983 and 148 to 154/1983 (1985), para. 14.
156 Woodson et al. v. North Carolina, 428 U.S. 280, 304-305 (1976) (internal citations omitted).
