The Move to Restrict the Death Penalty in International Human Rights Law and Resistance in the American Continent

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Victor Tsilonis*

From its very beginning the legal systems were imputed with the principle of retributivism. The most ancient form of systematization of laws, the Code of Hammurabi, introduced as its core principle the “law of equivalency”, which is notoriously known as “lex talionis”1. The law of “life for life, eye for eye, tooth for tooth”2 is also found at least in four verses of the Old Testament3, has deep roots in the Islamic law4 and Asian culture too5. It must be noted that “lex talionis” was a significant development in the history of jurisprudence in the sense that what used to be a private matter between two families was now taken over by the state and considered to be criminal behaviour6. Furthermore, it constituted a noteworthy attempt to limit the extent of a punishment and discourage cruelty. The principle of “lex talionis” unequivocally stated that punishment should correspond to the crime and not be extended to any but the offender. This law formed a categorical rejection of family feuds and the implicit culture of revenge that led the injured party to unauthorized, unbridled and incommensurate attacks against the culprit and the members of his family. However, it seems that the underlying hypothesis of “the punishment fitting the crime” was applied in arbitrary ways7.

Unfortunately, neither the progress of mankind and the emergence of civilization8 nor later the dissemination of religions like Buddhism9 and Christianity offered any substantial assistance at the abolition of death penalty10. Humanity needed to traverse thirty-eight centuries after the enactment of the Hammurabi’s Code and become well acquainted with the tragedies of two World Wars before beginning to acknowledge internationally11 the self-evident value of human life. This acknowledgement was marked by the enactment of Art. 3 of the Universal Declaration of Human Rights, which proclaimed the patently obvious right of every human being to life, liberty and personal security12, while Art. 5 denounced torture or any other cruel, inhuman or degrading treatment or punishment. Furthermore, Art. 68§4 of the Geneva Convention (IV) of August 12, 1949 Relative to the Protection of Civilians stated that “[i]n any case, the death penalty may not be pronounced on a protected person who was under eighteen years of age at the time of the offence.”13

Seventeen years later, Art. 6 of the International Covenant on Civil and Political Rights (ICCPR)14, affirmed the right to life of every human being and prohibited the arbitrary deprivation of human life, but did not bar capital punishment15. The overall formulation of Art. 6 ICCPR led the eighteen individual experts of the Human Rights Committee to conclude that “the Article also refers generally to abolition in terms which strongly suggest (paras. (2) and (6) ) that abolition is desirable” and that “all measures of abolition should be considered as progress in the enjoyment of the right to life…”16.

Additionally, pursuant to the General Comment 6(16) of the Human Rights Committee the reference to the Covenant (in Art. 6§2) in effect added the provisions of Art. 14 to Art. 6. Undeniably, this means that the procedural guarantees prescribed in Art. 14 must be duly observed, including the right to a fair hearing by a competent, independent and impartial tribunal, the presumption of innocence, the minimum guarantees for the defense and the right to review by a higher tribunal. In other words, if Art.14 of the ICCPR is violated during a capital trial, then Art. 6 of the Covenant is also breached. This view was forcefully endorsed by the Human Rights Committee in Mbenge v. Zaire and Reid v. Jamaica17, where it was underlined that “in capital punishment cases, the duty of States parties to observe rigorously all the guarantees for a fair trial set out in Art.14 of the Covenant is even more imperative”18. This unbreakable linkage between Articles 14 and 6 is extremely important because Art. 4 of the Covenant permits States parties to suspend or derogate from certain provisions “in time of public emergency which threatens the life of the nation”. However, the provision of Art. 6 is non-derogable because it is not within the ambit of Art. 4; thus, in effect the linkage of Art. 14 with Art. 6 provides the same level of protection for Art.14 too.

In 1971 and 1977 the U.N. General Assembly reaffirmed the international trend towards the abolition of death penalty by adopting the Resolutions 2857 and 32/61 respectively19. The Optional Protocol to the Covenant on Civil and Political Rights, eventually entered into force in July 1991 after receiving its tenth instrument of ratification, was the first universal20 treaty that declared in an unambiguous fashion the sanctity of human life and the rejection of capital punishment. Art.1 of the Optional Protocol categorically states that no one shall be executed within the jurisdiction of a State Party to the present Protocol, while Art. 2 limits crucially the scope of any potential future reservations by stating that the sole permissible exception can be the imposition of “the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime.21

Along with the international abolitionist movement, numerous attempts have been made since 1985 to convince the retentionist countries at least to abide by the ECOSOC Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty22. The listed safeguards have the following goals: to ensure that capital punishment is only implemented for the most serious, intentional crimes with lethal or other extremely grave consequences; to protect the convicted persons from retroactive imposition of the capital punishment and to provide for the possibility of lighter sentences; to exempt those offenders who were under eighteen years old when they committed the crime, pregnant women, new mothers, insane people and mentally retarded; to ensure a fair trial and adequate legal counsel for the accused; to ensure the existence of a mandatory appeal procedure and that no executions are carried out before the completion of all legal proceedings; finally, to guarantee that where an execution of capital punishment does occur, it is being carried out with the minimum possible suffering for the convicted person.

Quite conversely, the purpose of the 6th Protocol to the European Convention on Human Rights (ECHR), as amended by Protocol 11 in 1998, was to eradicate completely the imposition of capital punishment during peacetime that Art. 2 EHCR allowed23. Art. 1 of the 6th Protocol professed with astonishing simplicity: “The death penalty shall be abolished. No one shall be condemned to such penalty or executed”24. However, Art. 2 exempted the “time of war or of imminent threat of war” from the abolitionist ambit of Art. 1 provided that the States wishing to avail themselves of this exception would “communicate to the Secretary-General of the Council of Europe the relevant provisions of that law”25. Nevertheless, this legal issue is nowadays of somewhat less significance than it appeared to be in the past, because Protocol No. 13 to the European Convention on Human Rights abolishes death penalty in all circumstances, including time of war or of imminent threat of war26.

Moreover, Europe showed its unequivocal opposition to the capital punishment in 1994, when the Parliamentary Assembly of the Council of Europe imposed as a precondition for any country wishing to become member of the Council the implementation of a moratorium on capital punishment and consequently the ratification within a pre-set period of the 6th Protocol to the ECHR. Unequivocally, this policy decision had a tremendous and decisive effect on the countries of the former communist bloc and the vast majority of the states formerly forming the Soviet Union, since all of them were retentionist but wished to actively participate in the Council of Europe. As a result, by April 2002 another sixteen European states had abolished death penalty and ratified the 6th Protocol to the ECHR, while three had only signed it27.

In 1999 the Assembly, referring to its Resolutions 1044 (1994) and 1097 (1996), reaffirmed its view28 that “the application of the death penalty constitutes inhuman and degrading punishment and a violation of the most fundamental human right, that to life itself” and reiterated “its firm conviction that capital punishment, therefore, has no place in civilised, democratic societies governed by the rule of law.”29 In 2001 the Assembly went one step further by adopting the resolution 1253. Under Statutory Resolution (93) 26 on Observer status, a state wishing to become a Council of Europe Observer state has to be willing to accept the principles of democracy, the rule of law and the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms. Japan (1996) and the United States of America (1996) were amongst those states that were granted Observer status by the Committee of Ministers of the Council of Europe30, but they continued keeping the death penalty on their statute books and carrying out executions. Thus, the resolution 1253 (2001) called into question “the continuing Observer status of Japan and the United States with the Organisation as a whole, should no significant progress in the implementation of this resolution be made by 1 January 2003”31. Certainly, this was essentially a decision with more symbolic than substantial force32, but still meritorious because it demonstrated Europe’s decisiveness against the capital punishment.

It should be stressed that European Union’s policy is moving unsurprisingly towards the same direction. Art. 2(2) of the EU Charter of the Fundamental Rights, which was officially proclaimed at the Nice Summit in December 2000, evidently express the European denunciation of capital punishment: “No one shall be condemned to the death penalty or executed”. Two years earlier the European Union had issued guidelines regarding its policy towards third countries on the death penalty33. The European Union set as its primary objective “the universal abolition of the death penalty” and committed itself to raise the issue “in its dialogue with third countries” and make specific demarches on “death penalty cases that violate minimum standards”34.

The EU Demarche on the Death Penalty35, which was presented by the EU Presidency to U.S. Assistant Secretary of State for Human Rights on February 2000, brought into light the lack of conformity between international human rights standards and U.S. practice causing an abrupt twinge to the other side of the Atlantic Ocean36. The paper criticized in an astonishingly harsh tone the intransigence and rebelliousness of U.S.A.’s legal regime against international human rights standards37. The demarche was rightly considered as an extraordinary development in the international relations38. Under normal circumstances, States do not readily make a public request to another State on a matter of the domestic policy of the other State because they value too highly their own sovereignty and this action sets in turn a precedent that may lead to a future request regarding issues of their domestic policy. The fact that the European Parliament and the European Union chose this extravagant course of action indicates the existence of strong sentiments in Europe that the United States, by using capital punishment, acts far beyond any acceptable boundaries39.

Outside Europe, similar developments took place on the American continent too40. Art. 4 of the American Convention on Human Rights (ACHR) proclaims that death penalty can be imposed only for the most serious crimes” and that it shall neither “be extended to crimes to which it does not presently apply” nor “be re-established in states that have abolished it”41. Additionally, the (second) Protocol to the American Convention on Human Rights to Abolish the Death Penalty fortified the abolition of death penalty during peacetime and permitted its exceptional application during wartime “for extremely serious crimes of a military nature”42. However, it should be noted that the main function of the Protocol is emblematic and primarily serves as a reminder to the few remaining retentionist countries in the region, notably the U.S.A. and some Caribbean countries, such as Barbados, Jamaica, Trinidad & Tobago, because when the OAS Assembly adopted the (second) Protocol in 1990 the abolitionist states were those that had already ratified ACHR and according to Art. 4(3) were prohibited from re-establishing it43.

Nevertheless, despite the international dynamic of the abolition’s movement, there still exist far too many states “tinker[ing] with the machinery of death”44 and consequently resisting the embracement of current international human standards. It should be highlighted that at the end of 2002, regardless of any preceding optimistic expectations, the number of abolitionist states had only moderately been increased since 1995; while in 1988 the abolitionist (and abolitionist for ordinary crimes) countries were merely 52, this number rose substantially in 1995 when 73 states declared officially their opposition to the capital punishment. At that time many anticipated a geometrical increase in the future, only to be refuted in 2001 when only 89 states (46%) had formally put a halt on executions45.

The axis of death penalty, namely North Africa, Middle East, Asia, Caribbean islands and the U.S.A., reveal that there are still worldwide several pockets supporting the “Death Foundation”, regardless the tenacious and uprising international opposition. Three are essentially the causal factors, either operating independently or conjunctively, which preserve this primitive phenomenon of conferment of justice: religion, culture and defiance of international law. Taking into account the voluminous articles and books that have been written on this issue, the perpetual student cannot but continue being extremely and arbitrarily selective at the arguments, cases, statistics and historical events that will be mentioned in the remaining part of this brief essay. Our focus will be attracted more in the American continent (U.S.A., Canada and the Caribbean states) due to the existing vast jurisprudence, the number of researches available, the manifold issues that have arisen, the relative transparency of their legal systems and the fairly astounding recent developments.

When the U.S.A. was established by the end of 18th century no one expected that this State would become not only renowned for its economic development and scientific achievements but also notorious for defying international law and violating human rights46. On the contrary, when Americans sought liberation from England, the Framers both drew inspiration from the European Enlightenment and the Law of Nations47. Although it is difficult to tell how this awkward revulsion occurred48 the fact is that nowadays the United States remains one of the principal violators of international law and human rights. The U.S.A. still disrespects Art. 6§5 ICCPR49 and sentences offenders to death for crimes committed before they have reached the minimum requisite age of eighteen50, irrespectively of international adverse reaction51. Moreover, the U.S.A. has not stopped imposing the death penalty or the life sentence without parole to the offenders who were below eighteen years old when they committed the crime, a policy that is contrary to Art. 37(a) of the Convention on the Rights of the Child (CRC)52. Last but not least the U.S.A. pays lip service to Art. 36 of the Vienna Consul Convention on Consular Relations and the ICJ’s provisional measures orders53.

Nevertheless, there were also some positive developments. One of the most astonishing events in the U.S. legal history took place early this year when Governor Ryan in Illinois decided to commute the sentences of 167 death-row inmates into life sentences without parole54 or into even lesser sentences following revelations that at least 17 men had been wrongfully convicted55. Moreover a little earlier, in June 2002, in a single week, the Supreme Court issued two death penalty decisions, Atkins v. Virginia and Ring v. Arizona56, which invalidated partly the administration of capital punishment in almost two-thirds of the American states that currently retain the death sentence in their legislation57.

Atkins prohibited the application of the death penalty to defendants with mental retardation58, since it was eventually ruled that this action constitutes cruel and unusual punishment and violates the “evolving standards of decency” criterion of the Eighth Amendment59. Ring precluded judges (as opposed to juries) from making factual determinations that render a defendant eligible for capital punishment60. There is no question that Atkins and Ring will have some significant repercussions on the administration of capital punishment, despite all justifiably expressed worries that they might merely soothe the public opinion and perpetuate the capital punishment regime61. The decisions will affect a substantial but yet indeterminate number of death row inmates either by exempting them from execution altogether or by assigning them new sentencing hearings62, although it is very uncertain whether Ring decision will have retroactive effect63.

Meanwhile, the Inter-American Court of Human Rights in San Jose, Costa Rica, ruled in Hilaire, Constantine et al v. Trinidad & Tobago64 that a law imposing a mandatory death sentence upon anyone convicted of murder is incompatible with the right to life as protected by Art. 4 of ACHR, because, by failing to permit contemplation of any individual or mitigating circumstances, it “compels the indiscriminate imposition of the same punishment for conduct that can be vastly different”(para. 103) and therefore arbitrarily puts the right to life at grave risk65.

In 1989, in the case of Soering v. U.K.66 the European court of Human Rights67 decided that the U.K. would breach Art. 3 of ECHR if it allowed the extradition of the accused man to the state of Virginia because his inevitably protracted wait on death row would amount to inhuman and degrading treatment and punishment. In February 2001, the Canadian Supreme Court reached eventually the same conclusion and held that extradition of a person to the U.S.A. would violate Section 7 of the Canadian Charter of Rights and Freedom, unless reassurances were given that the death penalty would not be imposed68.

In 1993 the Judicial Committee of the Privy Council in London ruled in the cases of Pratt and Morgan v. Attorney General of Jamaica69 that a five-year wait on the death row violates Art. 7 ICCPR too because it constitutes inhuman and degrading punishment and additionally that a wait over two years might be considered as inhumane treatment70. A little later in 1994, the Human Rights Committee ruled in the case of Charles Ng v. Canada71 that the execution of capital punishment by gas asphyxiation violated also Art. 7 ICCPR72.

As a consequence of the Privy’s Council decision in Pratt, Jamaica promptly commuted the death sentences of 105 prisoners already detained on death row for more than five years, Trinidad & Tobago commuted the sentences of fifty-three death row inmates and Barbados commuted nine death sentences. Nonetheless, by placing these stringent time limits, the Privy Council misevaluated the lengthy procedure of the human rights petitions and vehemently denied Trinidad & Tobago and Jamaica’s request that “either the periods of time relating to applications to the human rights bodies should be excluded from the computation of delay or the period of five years should be increased to take account of delays normally involved in the disposal of such complaints”73. Following the unsuccessful attempts74 to impose detailed and precise timetables for review of death row petitions the aforementioned Caribbean states and Guyana denounced the ICCPR’s First Optional Protocol and the American Convention75. Last but not least In February 2001, eleven Caribbean states agreed to replace the British court with a new Caribbean Court of Justice, which will act as the region’s highest court of appeal. The need to ratify the agreement was exacerbated one month later after the Privy Council ruled that the mandatory imposition of death sentences for all murder convictions was unconstitutional76.

The death penalty is not considered any more as an appropriate punishment even for those who have committed the most heinous crimes. That is the reason why Art.24 of the International Criminal Tribunal for Yugoslavia, Art.23 of the International Criminal Tribunal for Rwanda and Art.77 of the International Criminal Court do not prescribe death penalty as one of the statutory sentences77. Nevertheless, at the same time it is indeed worrying that most of the countries which abolished recently the death penalty did so after persistent international and political pressure and not because they genuinely realized the gist of embracing international human rights standards78. Additionally, it seems that the momentum of the abolitionist movement is now over and that we have currently reached a halt79.

The tragic event of 11th September coupled with the climate of defiance of international law (the unlawful invasion in Iraq and the shameful story of Guantanamo Bay being the latest examples) clearly do not present a promising future. Thus it is not unlikely that many countries might decide soon to re-establish or “activate” the death penalty as a countermeasure against terrorism. Furthermore, one cannot exclude the possibility that some countries might choose to follow the Caribbean example80, denounce human rights agreements and withdraw from the jurisdiction of international human rights tribunals. Last but not least, it should not evade our attention that while people and organizations advocate for the sanctity of human life and the abolition of death penalty for even the worst of the convicted offenders, brutal crimes such as aggression, negligent killings of thousand innocent civilians and unconcealed exercise of torture81, i.e., acts justifiably considered to be “exceedingly more barbaric”, have already undermined people’s trust in international human rights. It is truly unfortunate that the abolition movement might be severely impaired as an unexpected corollary casualty, since especially the Arab and Muslim world will be more unwilling than ever to abide by the norms of the “cultural colonialism”82, the U.S.A. will not cease trespassing international law and China with Singapore will continue breaking the records in the contest of the “most deadly conferment of justice”83.

Therefore, the abolitionist movement should distant itself from the mere and shallow proclamation of international human rights standards84 and focus on upholding its claims against capital punishment on historical, philosophical and ethical grounds like Justice Bhagwati85 did in Bachan Singh v. State of Punjab86.

Justice P.N. Baghwati, who needed two years after the Court announced its decision to deliver his 115-page dissent, collected diverse material from a plethora of legal and extralegal sources in order to persuade his learned colleagues that death penalty was not an appropriate punishment for our modern civilization87. Search Term Begin Search Term End He not only delved into the Indian constitutional precedent88 and the Indian Penal Code, but, in addition, incorporated into the breadth of his analysis a wealth of elements than one is not accustomed to viewing in any judicial speech. He boldly contended that “there is no reason why, in adjudicating the constitutional validity of death penalty, Judges should not obtain assistance from the writings of men like Dickens, Tolstoy, Dostoyevsky, Koestler and Camus”. He quoted from Bernard Shaw89, Plato, Andrei Sakharov, Mahatma Gandhi, Lafayatte90 and others and spoke particularly of Victor Hugo’s resentment against death penalty91. Furthermore, Bhagwati vividly Search Term Begin Search Term End depicted “the culture and ethos of the nation as gathered from its history, its tradition and its literature” and “the ideals and values embodied in the Constitution” as being polemical to the death penalty. He referred to the ancient epic of the Mahabharata92, the Hindu philosophical treatises of the Upanishad and even to the 20th century statesman and humanist Jaiprakash Narain. Last but not least, Justice Bhagwati reminded that in “this land of Buddha and Gandhi…since over 5000 years ago, every human being is regarded as embodiment of Brahman” and appealed to “the standards of human decency set by ancient culture and nourished by the constitutional values and spiritual norms”.

Twenty-one years later, the road that his marvellous speech carved seems to be the only pathway which can guide us out of the current international deadlock.

 

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* LL.M. candidate in Criminal Justice/Human Rights at the University of Nottingham, School of Law and trainee lawyer in Greece. The present paper was honorably published at the University of Nottingham Human Rights Law Review. Suggested Citation: V. Tsilonis, “The Move to Restrict the Death Penalty in International Human Rights Law and Resistance in the American Continent”, (2003) Human Rights Law Review – Student Supplement, pp. 45-55.

 

1 Lex=law and talio=punishment.http://biblicalresearch.gc.adventist.org/Biblequestions/eyeforeye.htm .

2 Ex. 21:23-25: “[T]he penalty shall be life for life, eye for eye… wound for wound.” It has been innovatively argued that this passage introduces a code for civil damages. C. S. Fishman, Old Testament Justice, (2002) 51 cath. u. l. rev. 405,at 414; I. M. Rosenberg and Y. L. Rosenberg, Lone Star Liberal Musings on “Eye for Eye” and the Death Penalty, [1998] utah l. rev. 505,at 526.

3 (Ex. 21:23-25; Lev. 24:19, 20; Deut. 19:21; Gen. 9:5-6). However, the approach of the New Testament differs (Matthew 5:39 “Resist not evil: but whosoever shall smite thee on thy right cheek, turn to him the other also”). See J. J. Megivern, The Death Penalty: A Historical and Theological Survey (New York: Paulist Press), (1997). Contra C. F. H. Henry, Does Genesis 9 Justify Capital Punishment? Yes. in R. F. Youngblood (ed.), The Genesis Debate, (Grand Rapids: Baker Book House), (1990), p. 241.

4 W. A. Schabas, Islam and the Death Penalty, (December 2000) 9 wm. & mary bill rts. j. 223, pp.231-232.

5 M. Palmer, The People’s Republic of China in P. Hodgkinson and A. Rutherford (eds.), Capital Punishment: Global Issues and Prospects, (Winchester: Waterside Press), (1996), pp. 105-141 at 112-126. The euphemistic term “capital punishment” derives from the fact that originally the punishment literally decapitated the offender. See V. Streib, Death Penalty in a Nutshell, (Minnesota: Thomson West), (2003), pp. 2-3.

6 The Sumerian and the Akkadian codes, which preceded the Hammurabi code, indicated specific sums of money for bodily injuries. B. S. Jackson, Models in Legal History: The Case of Biblical Law,(2002)18 j.l. & religion 1.

7 For example the Mosaic Law contained 36 capital offences. See S. Mendelsohn, The Criminal Jurisprudence of the Ancient Hebrews, (New York: Hermon Press), (1968), pp. 44-52. Hammurabi’s Code in Mesopotamia contained punishments based on a peculiar “harm analogy” (e.g.”If a builder builds a house for someone, and does not construct it properly, and the house which he built falls in and kills its owner, then that builder shall be put to death. If it kills the son of the owner, then the son of that builder shall be put to death”).

8 The modern abolitionist movement traces its origins to the Italian criminologist Cesare Beccaria, who published his extremely influential treatise On Crimes and Punishments in 1764. Grotius, Thomas Hobbes, John Locke, Jean-Jacques Rousseau, Diderot, Montesquieu were all supporting death penalty, albeit for a different scope of offences. See W. A. Schabas, The Abolition of the Death Penalty in International Law, (Cambridge: Cambridge University Press) (3rd edition, 2002), pp. 4-5.

9 It has been argued that Buddhist organizations have either been indifferent or in favour of the death penalty. See D. Moldrich, Hangman-Spare That Noose (Colombo: D. Moldrich), (1983), p. 165.

10 One explanation is that the official Church did not denounce the capital punishment until very lately because it believed that only death could stamp out heresy. See J. J. Megivern, op. cit., supra, fn. 3. Clearly, Justice Scalia’s argument, quoting St. Paul (Romans 13:1-5), that “the more Christian a country is the less likely it is to regard the death penalty as immoral” should be regarded as a flagrant distortion of the Christian religion. A. Scalia, God’s Justice and Ours, (2002) 123 first things, pp. 17-21. Electronically available at: http://www.firstthings.com.

11 In 1846 the American state of Michigan became the first jurisdiction in modern times to abolish capital punishment for murder (the death penalty was never used afterwards), while Venezuela in 1863 was the first country to abolish totally capital punishment, whether committed in peacetime or wartime. The first European country that abolished death penalty for murder was Portugal in 1867. R. Hood, The Death Penalty: A Worldwide Perspective (Oxford: Oxford University Press), (3rd edition, 2002), pp. 9,10 and 22.

12The Soviet Union urged for an absolute abolition but other States, including the United States via its representative Eleanor Roosevelt, disagreed. See M. A. Glendon, A World Made New, Eleanor Roosevelt and The Universal Declaration of Human Rights, (New York: Random House), (2001), p. 7.

13 A far broader Egyptian proposal to prohibit the death penalty for offenders under the seventeen years met the opposition of China and the U.S.A. (E. Roosevelt) and was not eventually adopted. UN DOC. e/cn.4/sr.149, para. 68, 83 and 86. The existing provision is the result of an amendment adopted by the Third Committee in 1957. U.N. DOC. a/c.3/l.647; U.N. DOC. a/c.3/l.650; U.N. DOC. a/c.3/l.655.

14 It was adopted by the U.N. General Assembly in 1966 but came into force ten years later on 23rd March 1976. On 7th January 2002, 147 states were parties to it. http://users.ox.ac.uk/~wgtrr/trr.htm .

15 Nonetheless, Art. 6 placed significant restrictions upon its application. Although officially no pregnant women have been executed recently, a death sentence was imposed on one in the Democratic Republic of Congo in 1998. Special Rapporteur’s Report e/cn.4/1999/39/add. 1, para. 68. The notorious case of Amina Lawal, who has been convicted to death by stoning for consensual sexual activity by a Sharia court and has been allowed to give birth to her child only due to the international outrage and massive protests, is one of the latest examples. See http://web.amnesty.org/web/content.nsf/pages/gbr_nigeria. The language used in Art. 6 (6) ICCPR was an adaptation of an Irish effort that sought to find a ‘middle ground” between the supporting and opposing of the death penalty states. gaor, 12th Session, Third Committee, Summary Records, a/ c.3/sr.813, para. 41 (1957).

16 Report of the Human Rights Committee, gaor, 37th Session, Supplement No. 40 (1982), Annex V, General Comment 6(16), para. 6. The exact wording has been used in many other instances. See Human Rights Committee General Comment 6 (Art. 6), U.N. DOC. hrigen1rev.1 at 6, para. 6 (1994) and the Preamble of the Second Optional Protocol to the ICCPR.

17Mbenge v. Zaire, Search Term End Communication No. 16/1977 (8 September 1977), U.N. Doc. Supp. No. 40 (A/38/40) at 134 (1983); Reid v. Jamaica, No.250/1987.

18Reid v. Jamaica, No. 250/1987, para. 11.5.

19 The Resolutions called the retentionist countries to progressively restrict the number of offences for which death penalty might be imposed, with a view to the desirability of abolishing this punishment. The Commission on Human Rights used the same wording in its 1997/12 resolution.

20 The first international treaty was Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms [European Convention on Human Rights (ECHR)] in 1983.

21 Clearly, this exception is narrower than the one foreseen in the 6th Protocol to the European Convention on Human Rights (ECHR) and implies that the war in question must be a formally declared war between states and not a civil armed conflict.

22 Resolution 1984/50, Resolution 1989/64 (Additions to Safeguards as Agreed by ECOSOC) and Resolution 1996/15 (Strengthening of the Safeguards as Agreed by ECOSOC).

23 Thus, according to the amended Art. 4 of the 6th Protocol: “No reservation may be made under Art. 57 of the Convention in respect of the provisions of this Protocol.”

24 However, under the 6th Protocol States parties were given wide territorial discretion (Art. 5): “Any State may… specify the territory or territories to which this Protocol shall apply.”

25 It is argued that any failure to communicate will amount to the inadmissibility of belatedly invoked exceptions by the States parties, while more uncertain is the verification of the “imminent threat of war” precondition.

26 The Protocol No. 13 was adopted by the Council of Europe in 2002 and nowadays nine States are parties to the treaty (Bulgaria, Croatia, Cyprus, Denmark, Ireland, Liechtenstein, Malta, Switzerland, Ukraine) and thirty-four States have signed but not yet ratified it. See: http://web.amnesty.org/pages/deathpenalty_index_eng

27 Ratified: Albania, Bulgaria, Croatia, Czech Republic, Estonia, Georgia, Hungary, Latvia, Lithuania, FYROM, Moldova, Poland, Romania, Slovakia, Slovenia, Ukraine. Signed: Armenia, Azerbaijan, Russian Federation.

28 Resolution 1187 (1999).

29 See Europe: a death penalty-free continent, Committee on Legal Affairs and Human Rights’ Report (1)

http://www.coe.int/T/e/Communication%5Fand%5FResearch/Press/Theme%5FFiles/Death%5Fpenalty/e_rap_ap1.asp#TopOfPage .

30 Two other states have been granted Observer status: Canada (1996), Mexico (1999).

31 See http://assembly.coe.int/documents/adoptedtext/ta01/eres1253.htm .

32 The U.S.A. neither belongs in the European region, nor wishes to become a member of the European Council.

33 In June 1998. Available at: http://europa.eu.int/comm/external_relations/human_rights/adp/guide_en.htm.

34 The provisions of the EU Minimum Standards Paper bear too many similarities with the U.N. ECOSOC Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, but they are not identical with them. The main differentiations can be found in Standards No.(i), (vii), (ix), (x), (xii).

35 Electronically available: http://www.eurunion.org/legislat/DeathPenalty/Demarche.htm

36 Allegedly, this was the causal factor behind allies and adversaries’ challenge of U.S. moral leadership in international human rights that led to the embarrassing loss of America’s seat on the Human Rights Commission. See Editorial: Europe’s View of the Death Penalty, new york times, 13th May 2001, p. 12. H. H. Koh, Editorial: A Wake-Up Call on Human Rights, washington post, 8th May 2001, p. A23. One former U.S. Ambassador reported that protestors besieged his consulates, and that his embassy received an anti-death penalty petition signed by 500,000 local citizens. See F. G. Rohatyn, Editorial: America’s Deadly Image, washington post, 20th February 2001, p. A23; M. Mabry, A Bad Case of Euro Envy: The Rift Between U.S. and Old World Values is Threatening America’s Claim to Global Leadership, newsweek, 16th April 2001, p. 2.

37 The demarche explicitly paid heed to the number of executions took place in the U.S. in the 1990’s (almost 500), the age of the sentenced offenders (many below eighteen years old at the time of the commission of the crime), the incompatible with the object and the purpose of the ICCPR reservation made by the U.S.A. to Art. 6 ICCPR, the denial of U.S.A. to ratify the Convention on the Rights of the Child and its non-accordance with several international instruments.

38 Unlike the next EU Demarche on the Death Penalty of 2001, which was issued while Sweden was at the EU Presidency and stated inter alia: “The Union calls on the US government to consider further steps towards the abolition of the death penalty…4) The EU expresses its satisfaction that no federal executions have taken place in the US since 1963…[this satisfaction ended quickly the same year when Timothy McVeigh and Juan Raoul Garza were executed]…7) The EU recognizes that the US has reservations to Art. 6…Nevertheless, the EU believes that…the US reservation is incompatible with the object and purpose of ICCPR and should be withdrawn.” Electronically available on the web: http://www.eurunion.org/legislat/DeathPenalty/Demarche10May.htm .

39 J. Quigley, Pressure from Abroad Against Use of Capital Punishment in the United States, (2001) 8 ilsa j. int’l & comp. l. 169, at 170.

40 But not yet in the Middle East. The Arab Charter of Human Rights, which simply foresees the imposition of death penalty for the most serious offences and not if the offender is a child, a pregnant woman or a new mother, has been ratified only by one State so far. See A. Schabas, op. cit., supra, fn. 8, p. 442. For a list of the 22 member States of the League of Arab States see: http://www1.umn.edu/humanrts/instree/arabhrcharter.html .

41 Art. 4 (2) and (3) ACHR.

42 Art. 2 (1) of the Protocol to the ACHR to Abolish the Death Penalty. Art. 2 (2) is similar to Art. 2 of the 6th Protocol to ECHR.

43 N. S. Rodley, The Treatment of Prisoners Under International Law, (Oxford: Clarendon Press), (2nd edition, 1999), p. 217.

44 “I shall no longer tinker with the machinery of death” in Callins v. Collins, 510 U.S. 1141, at 1145 (1994) (J. Blackmun, before retirement). However, Blackmun is also famous for dissenting in Furman v. Georgia, 408 U.S. 238 (1972) when, having stated that “I yield to no one in the depth of my distaste, antipathy, and, indeed, abhorrence for the death penalty”, he went on supporting the constitutionality of the disputed law (at 405).

45 In 1988 the abolitionist countries numbered 35 and the abolitionist for ordinary crimes countries 17, i.e.,52 (28%).

In 1995 the abolitionist countries numbered 60 and the abolitionist for ordinary crimes countries 13, i.e.,73 (38%).

In 2001 the abolitionist countries numbered 75 and the abolitionist for ordinary crimes countries 14, i.e.,89 (46%). Moreover, Turkey abolished the death penalty in Aug. 2002 and signed Prot. No 6 in Jan. 2003 following the persistent international pressure concerning the case of Kurdish rebel leader Abdullah Ocalan. See N. V. Demleitner, The Death Penalty in the United States: Following the European Lead?, (2002) 81 or. l. rev. 131, at 137-138). Serbia and Cyprus abolished also the death penalty by law in 2002. At the same time 34 countries are considered to be de facto abolitionist or lapsed retentionist. However, this latter category must be treated with some caution because 10 countries previously considered being in that category resumed executions: e.g. Burundi executed 6 men in 1997, following 16 years of no executions. See R. Hood, op. cit, supra, fn. 11, at 14 and 256 and N. S. Rodley, op.cit.,supra, fn. 43,p. 204.

46 Throughout the 19th century, American courts continued to apply the unwritten law of nations as part of the “general common law,” without regard to whether it should be characterized as federal or state. Chief Justice John Marshall ruled in the famous Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, (1804), that “an act of [C]ongress ought never to be construed to violate the law of nations if any other possible construction remains…” (at 118). Moreover, in 1895, Justice Gray proclaimed in Hilton v. Guyot, 159 U.S. 113 (1895):”International law…is part of our law, and must be ascertained and administered by the courts of justice…” (at 163). Justice Gray repeated almost verbatim his words from Hilton v. Guyot in the famous case of the The Paquete Habana, 175 U.S. 677, at 700 (1900).

47 At that time, the phrase “Law of Nations” was used instead “international law”, simply because Jeremy Bentham had not yet coined the term. See J. Bentham, An Introduction to the Principles of Morals and Legislation (J. Burns & H. Hart eds.), (London: Methuen), (1970), pp. 296-297. In Art. I of the Constitution, the Framers expressly gave Congress the power “[t]o define and punish Piracies . . . committed on the high Seas, and Offences against the Law of Nations” (U.S. Const. Art. I, § 8, cl. 10) and, a little later (1793), in his letter to French Foreign Minister Genet, the then-Secretary of State Thomas Jefferson heralded the law of nations as “an integral part . . . of the laws of the land.”

48 Numerous state and federal courts developed the doctrine of “non-self-executing treaties,” which held that certain human rights treaties must be implemented by statute to be accorded domestic legal effect. The doctrine is effectively based upon a “constructed tension” between Art. VI § 2 of the U.S. Constitution and the Tenth Amendment and is one of the U.S. best excuses for disrespecting International Law. See: Vlissidis v. Anadell, 262 F.2d 398 (7th Cir. 1959); Sei Fujii v. State, 38 Cal. 2d 718, 242 P.2d 617 (1952) and also the cases mentioned, infra,fn.53(regarding the violation of Art. 36 of the Vienna Convention on Consular Relations 1963).

49 Algeria seems to trespass the Covenant too. See Algeria, Annual Report of the Human Rights Committee, U.N. Doc 53/40, para. 359.

50 Unlike Yemen (1994), China (1997), Sudan (1998) and Thailand (2000), 24 states of the U.S.A. are still denying to adopt this minimum human rights standard: See R. Hood, op. cit, supra, fn. 11, p. 114; Bureau of Justice Statistics, Capital Punishment 2001 (2002) http://www.ojp.usdoj.gov/bjs/pub/pdf/cp01.pdf. By a narrow five to four majority, the U.S. Supreme Court held in Stanford v. Kentucky, 492 U.S. 361 (1989) that, notwithstanding international standards, the Eighth Amendment does not prohibit the execution of juvenile offenders who committed their crimes at age sixteen. (Justice Scalia’s opinion, at 369, fn.1). Twenty juvenile offenders were executed in the U.S.A. during the period of 1985-mid 2002. V. Streib, op. cit, supra, fn. 5, p.274.

51 The reservation United States formulated in regard to this Art. was challenged by 11 States parties as being incompatible with the purposes of the Covenant. In March 1995 the Human Rights Committee noted that this reservation was invalid because it contravened customary law “to execute pregnant women or children” and thus it was inconsistent with the underlying principles of the Covenant. See General Comment 24(51), para. 8.

52 A Convention that only the collapsed State of Somalia and the United States have not ratified. See Amnesty International, Hidden Scandal Secret Shame, 2000, p. 96, fn. 1. Until 9 December 2002, 191 States were parties to the CRC. See http://www.unhchr.ch/pdf/report.pdf. Art. 5(3) of the African Charter on the Rights and Welfare of the Child, which has been ratified by 22 States so far, also states: “Death sentence shall not be pronounced for crimes committed by children”.

53 See http://www.law.northwestern.edu/depts/clinic/ihr/display_details.cfm?ID=351&document_type=commentary

  1. Cassel, The United States, the World Court and the Rule of Law, 12th February 2003, Commentary No 156. H. H. Koh, Paying “Decent Respect” to World Opinion on the Death Penalty, 2002 (35) U.C. Davis L. Rev. 1085, at 1109-1118. See also the cases Breard v. Greene, 523 U.S. 371 (1998), LaGrand Case (F.R.G. v. U.S.), 2001 I.C.J. No. 104, Domingues v. Nevada, 528 U.S. 963 (1999). Consequently, the Mexican Foreign Ministry established the Mexican Capital Legal Assistance Program in September 2000, which has now assisted forty-five defendants and filed amicus briefs in thirteen cases. Faulder, a Canadian citizen who was imprisoned for 21 years before his execution, petitioned to the Inter-American Commission on Human Rights but, again, the precautionary measures that were issued did not alter the lethal course of events.

54R. Hood considers that alternative as “offer[ing] one human rights abuse in return for another”. R. Hood, op. cit, supra, fn. 11, p. 6.

55 See the following web page concerning Governor Ryan’s astounding decision in January 2003: http://www.nytimes.com/2003/01/11/national/11CND-RTEX.html. See also E. Monaghan, Governor’s death-row pardons divide US, the times (London), Monday 13th January 2003, p. 14; J. Borger, Trial and error; When the professor of journalism at Northwestern University in Chicago set his students the task of re-examining a string of capital convictions, he could not have imagined the effect, the guardian (London), Tuesday 15th February 2000, p. 2.

56Atkins v. Virginia,122 S. Ct. 2242 (2002),Ring v. Arizona,122 S. Ct. 2428 (2002),(issued on 20th and 24th June).

57 Thirty-eight states still retain the death penalty.

58 In the twenty states that did not have statutes already precluding such application.

59 Justice Stevens delivered the Court’s majority opinion (6:3) and mentioned in a “notorious” footnote the overwhelming disapproval of the world community on this issue. He also emphasized the greater danger of executing an innocent person when the death penalty sentence does not exclude the mentally retarded individuals, because they are more inclined to make a false incriminating statement under pressure and less able to cooperate with their counsel (Atkins v. Virginia, fn. 56 at 2251-2252). It is noteworthy that in 1989 only two states disallowed the execution of mentally retarded people, while in 2002 thirty-eight states and the federal government prohibited the execution of any person who happened to be in such a disadvantaged position.

60 This will have direct effect in five states where judges alone make capital-sentencing determinations and possibly in another four states that have a more complex system by establishing on the jury and the judge a shared responsibility for capital sentencing. The arguments advanced in these cases had been rejected by the Court in 1989 and 1990, respectively. Atkins overruled Penry v. Lynaugh, 492 U.S. 302 (1989), which was authored by Justice O’Connor and joined by Justice Kennedy, both of whom were members of the Atkins majority. Ring overruled Walton v. Arizona, 497 U. S. 639 (1990).

61 C. S. Steiner, Things Fall Apart But The Center Holds: The Supreme Court and the Death Penalty, (2002) 77 n.y.u. l. rev. 1475.

62 However, neither Daryl Atkins nor Timothy Ring will necessarily gain relief. Although the precise number of inmates with mental retardation amongst approximately 3700 people currently on death row is at present unknown, it is suggested that it is not insignificant (about 10%). R. Bonner & S. Rimer, Executing the Mentally Retarded Even as Laws Begin to Shift, new york times (New York), 7th August 2000, A1, cited in Atkins v. Arizona, supra, fn. 1, at 2254 (Rehnquist, C.J., dissenting). The number of those defendants, who will be able to prove their condition in court and therefore be immediately exempted from capital punishment according to the ruling in Atkins, will depend essentially on the definition of mental retardation and the procedures created for making such determinations (eg. the I.Q. score required, whether the judge or the jury will confer a judgment upon the issue, which party will have the burden of proof, what the standard of proof will be etc.). These determinations will tremendously affect the ultimate impact of the ruling in Atkins.

63 The Court was silent on the issue of retroactivity of its holding but the single federal circuit court that has ruled so far on this issue did not apply Ring retroactively, because Apprendi v. New Jersey 530 U.S. 466 (2000), the case of which Ring is but an application, does not itself fall within an exception to the Court’s non-retroactivity doctrine. Apparently, if the Ring case does not have any retroactive effect, it will affect only those whose convictions are not yet final. Hence, it is estimated that in Arizona, the state at issue in the Ring case, only 30 of the 130 people on death row in that state would be in a position to receive new sentencing hearings. See: A. Liptak, Fewer Death Sentences Likely If Juries Make Ultimate Decision, Experts Say, new york times (New York), June 25, 2002, at A21. Last but not least, it is predicted that the legal battle will be conveyed to issues purporting to extend further the Ring’s ratio decidendi; For example, if aggravating circumstances are elements of the crime rather than sentencing factors, must they be charged in the indictment (at least in federal court, where indictments are required by the Fifth Amendment)? See C. S. Steiner, loc. cit., supra, fn. 61.

64 The Court, having examined a great variety of case law (see fn.110 of the decision) ordered Trinidad & Tobago to commute the death sentences of thirty-one convicted people. Electronically available: http://www.corteidh.or.cr/index-ingles.html.

65 Similar decisions: Woodson v. North Carolina, 428 U.S. 280 (1976); Edwards et al v. The Bahamas (cases of the Inter-American Commission of Human Rights Nos. 12.067, 12.068,12.086 – Report No. 48/01); Bachan Singh v. State of Punjab, AIR 1980 SC 898 (Supreme Court of India – A case which is exceptional inter alia because of the 115-page dissent of Justice Bhagwati delivered two years after the Court’s decision); S v. Makwanyane, 1995 (3) SA 391 (South African Constitutional Court). In Hilaire the Court found violations also of the right to be tried within a reasonable time, the right to an effective recourse, the right to humane treatment, and the right of all persons sentenced to the death penalty to apply for amnesty, pardon, or commutation of their sentence.

66 161 Eur. Ct. H. R. (ser. A) 34 (1989). In this case the Federal Republic of Germany intervened.

67 Until now the European Court of Human Rights has not ruled upon any case concerning the core issue of the death penalty itself.

68 The case of United States v. Burns, [2001] 1 S.C.R. 283 overruled Kindler v. Canada, [1991] 2 S.C.R. 779. Once the state of Washington gave these assurances the prisoner and his associate were surrendered to the U.S.A. authorities. The case Reference Re Ng Extradition (Can.), [1991] 2 S.C.R. 858 was heard as a companion to the appeal in Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779. Both of them raised the issues: 1) Did the power of the Minister of Justice to extradite a fugitive to a country where he or she may face the death penalty, without first obtaining the assurance that such a penalty would not be imposed, violate s. 7 or s. 12 of the Canadian Charter of Rights and Freedoms. 2) Was his decision not to seek such assurance in these cases unconstitutional? The majority of the Supreme Court of Canada answered both questions in the negative.

69 Pratt and Morgan v. Attorney General for Jamaica [1993] 4 All E. R. 769. The Privy Council sat as a panel of seven, instead of the usual five, for the first time since 1949 and reversed its precedent in Riley v. Jamaica [1983] 1 App. Cas. 719, 727(P.C.1982). However their Lordships, unlike the European Court of Human Rights in Soering and the Supreme Court of Zimbabwe in Catholic Commission for Justice and Peace in Zimbabwe, did not address the deplorable conditions of death row as part of their consideration of the whole issue. The case Catholic Commission for Justice and Peace in Zimbabwe v. Attorney General, human rights law journal 14 (1993), p. 323, which was decided by the Zimbabwean Supreme Court, had a similar outcome, but a constitutional amendment negated the Supreme Court’s ruling five months later. See W. A. Schabas, Book Review: Execution Delayed, Execution Denied, (1994) 5 crim. l. f. 180.

70 Although the Human Rights Committee found a violation of Art. 7 in Pratt and Morgan v. Jamaica (Nos. 210/1986, 225/1987), it dismissed the argument based on the death row phenomenon: “…prolonged periods of detention …cannot generally be considered to constitute cruel, inhuman or degrading treatment if the convicted person is merely availing himself of appellate remedies” (para. 13.6). Conversely, a U.S. Federal Court of Appeals stated in 1998 that a fifteen year wait on death row is not a situation that “even begins to approach a constitutional violation” of cruel and unusual punishment prohibited by the Eighth Amendment. Chambers v. Bowersox, 157 F. 3d 560, at 570 (8th Circuit 1998).

71 Ng v. Canada, CCPR/C/49/D/469/1991(1994). Charles Ng was accused of committing horrendous crimes, including 12 murders. The Committee reaffirmed, the rationale of its General Comment 20[44] on article 7 of the Covenant (CCPR/C/21/Add.3, paragraph 6, issued on 7th April 1992) that, when imposing capital punishment, the execution of the sentence “… must be carried out in such a way as to cause the least possible physical and mental suffering” (para. 16.2).

72 “In the present case, the author has provided detailed information that execution by gas asphyxiation may cause prolonged suffering and agony and does not result in death as swiftly as possible, as asphyxiation by cyanide gas may take over 10 minutes (para. 16.3)…The Committee need not pronounce itself on the compatibility, with article 7, of methods of execution other than that which is at issue in this case” (para. 16.5). However, the Committee has rejected the identical arguments raised against lethal injection in Cox v. Canada (No. 539/1993) and Kindler v. Canada (No.470/1991). According to this line of reasoning it seems that the classic execution of the modern times by firearms is probably one of the best options for the retentionist states.

73 Bradshaw v. Attorney General of Barbados, [1995] 1 W.L.R. 936, 941 (P.C. 1995).

74 Lewis v. Attorney General of Jamaica, [2001] 2 A.C. 50, 85 (P.C. 2000).

75 Jamaica denounced the ICCPR’s First Optional Protocol and eradicated the right of individuals to petition the Human Rights Committee, but it did not withdraw from the American Convention, thereby preserving the right of aggrieved individuals to file complaints with the Inter-American Commission. This remaining option was duly exploited and an unprecedented number of petitions was filed with the Commission. Trinidad & Tobago’s saga ended with the denunciation of the Optional Protocol and the American Convention. Notwithstanding that Guyana was not bound by the Pratt and Morgan case because it had eliminated appeals to the Privy Council in 1970, and despite the fact that the ratification of the Optional Protocol in 1993 was motivated by the newly elected government’s distrust of the local judiciary, Guyana renounced the Optional Protocol in March 1998, only to reaccede it on the same date by making an eventually invalid reservation.

76Reyes v. The Queen, Appeal No. 64 of 2001, P43 (P.C. Mar. 11, 2002) (available at http://www.privy-council.org.uk/output/page1.asp).

77 Conversely, in most of the Muslim states the shadow of the death penalty is being cast over adultery and religious dissent. Iran has made a capital offence for a Muslim female to have sex with a non-Muslim male and China, despite the major reform of its Penal Code in 1997, still retains 68 capital offences. R. Hood, op. cit., supra, pp. 53, 84-5.

78 With the exception of Hungary that abolished the death penalty almost immediately after the fall of communism in 1990 with a landmark and memorable decision of the Hungarian Constitutional Court, which was related to the formulation of Art. 54 of the Hungarian Constitution. (Art. 54 contains an absolute definition of the right to life and prohibition of torture), Ruling 23/1990 (X.31). See P. G. Carozza, “My Friend Is A Stranger”: The Death Penalty And The Global Ius Commune Of Human Rights. (2003) 81 tex. l. rev. 1031, pp. 1063-66.

79 In 2001 5,265 death sentences were imposed and 3,048 executions were carried out worldwide (the largest number of death sentences and third largest number of executions in the last 21 years since 1980). Source: AI, Death Penalty Developments 2001. Moreover, only three states, Serbia, Cyprus and Turkey (in 2003) abolished totally the death penalty since 2001. See: http://www.deathpenaltyinfo.org/article.php?scid=30&did=140#6

80 Some authors have identified the “overlegalization” of human rights as the main cause that can lead even liberal democracies to reconsider their commitment to international institutions that protect those rights. See L. R. Helfer, Overlegalizing Human Rights: International Relations Theory And The Commonwealth Caribbean Backlash Against Human Rights Regimes, (2002) 102 colum. l. rev. 1832-1911.

81 As a consequence of the invasion against Iraq; John Walker Lyndh, “the American Taliban case” and the 11 “English prisoners” case. See: M. Colvin, Mindless torture? No, smart thinking, sunday times (London), 27th January 2002; A. Gumbel, America Admits Suspects Died In Interrogations, the independent (London), 7th March 2003, p. 12; V. Dodd, Father fears for son held by US in Afghanistan: I was kept in the dark for a year, says Briton detained at base, the guardian (London), 10th February 2003, p. 6; N. Cohen, the observer, Without Prejudice: When Justice is Truly Blind: The laws that allow Britain to detain without trial 11 alleged terrorists would make us all criminals, 4th August 2002,p.27. http://www.wsws.org/articles/2002/jun2002/lind-j25.shtml.

82 W. A. Schabas, Islam and the Death Penalty, loc. cit., supra, fn. 4.

83 It is suggested that the 80% of the executions worldwide are taking place in China, although the officials obstinately refuse to provide information based on the state’s records. Singapore is by far the first country that executes more people analogically to its population with a rate of 6.40 executions per million. China’s rate is 1.63 and Louisiana’s rate is around 1.34 (According to the statistics that R. Hood gave during his speech “The death penalty and worldwide developments” at the AMICUS seminars on 5th April 2003 in Birmingham at the U.C.E. Law School). For a strikingly different and optimistic conclusion see P. G. Carozza, loc. cit, supra, fn. 78, pp. 1032-1088.

84 The shallowness of the argument lies in the fact that its construction is similar to a sign one often sees in the U.S.A.: “Wear your seatbelt. It’s the law.” On this issue J. Raz wrote: “I shall argue that there is no obligation to obey the law.” The Authority of Law: Essays on Law and Morality (Oxford : Clarendon Press), (1979), at 233.

85 His accomplishments have extended into international human rights as well, most notably as a member of the U.N. Human Rights Committee since 1994. In 2001, in his eightieth year, he was elected Chairman of that Committee and he is also Regional Advisor to the High Commissioner for Human Rights in the Asia Pacific.

86 1982 AIR(SC) 1325, 1982 CrLR(SC) 337, 1982 (1) Scale 713, 1982 (3) SCC 24, 1982 SCC(Cr) 535, 1983 (1) SCR 145, 1982 CRLR 337 (justice Bhagwati’s complete speech is available at www.scjudgments.com).

87 Justice P.N. Bhagwati proclaimed that his views were “based not upon any ground of morality or ethics but…on constitutional issues”, but this politically correct statement was simply made in order to increase his speech persuasive force. Ibid.

88 Search Term Begin Search Term End Bhagwati characterized the precedents as being only a useful servant that could not be allowed to turn into a tyrannous master and thus obstruct courts from keeping up with times. He agreed with Lord Diplock’s view that “the court may describe what it is doing in tax appeals as interpretation. So did the priestess of the Delphic Oracle. But whoever has final authority to explain what Parliament meant by the words that it used, makes law as if the explanation it has given were contained in a new Act of Parliament. It will need a new Act of Parliament to reverse it”. Ibid.

89 Bernard Shaw has said: “Assassination on the scaffold is the worst form of assassination because there it is invested with the approval of the society….Murder and capital punishment are not opposites that cancel one another but similars that breed their kind”. Ibid.

90 “I shall ask for the abolition of the penalty of death until I have the infallibility of human judgment demonstrated me”. Ibid.

91 Hugo wrote that he preferred to call the guillotine Lesurques (the name of an innocent man guillotined in the Carrier de Lyon case). Ibid.

92 Prince Satyavan said on capital punishment in Shanti Parva of Mahabharata that “Destruction of individuals can never be a virtuous act”. Ibid.

 

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