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Friday, March 22, 2013

“The Death Penalty: Why, and how to Abolish it?” - UN Deputy High Commissioner for Human Rights, Ms. Kyung-wha Kang


Statement of the UN Deputy High Commissioner for Human Rights, Ms. Kyung-wha Kang, at the high-level event on “The Death Penalty: Why, and how to Abolish it?”


25 February 2013

Mr. President,
Madam Moderator,
Excellencies,
Ladies and Gentlemen,

On behalf of the High Commissioner and all of us at OHCHR, may I say how grateful I am to the International Commission against the Death Penalty for organising this high level meeting to discuss why and how to abolish the death penalty. Our thanks go also to the Permanent Missions of Argentina, Norway, Spain and Switzerland.

Developments over recent years in all regions of the world indicate a growing trend towards abolition. But we cannot sit content at the achievement. Reaching our goal continues to require concerted and conjoined advocacy at the local and global levels. Abolishing the death penalty takes political courage. There are always some who will try to manipulate public concerns about heinous crimes for their own purposes and call for the retention or reintroduction of the death penalty. Such attempts should be countered with leadership, reason and mutual support between States, civil society organisations and other stakeholders. Leaders need to explain the ethical and practical reasons for abolishing the death penalty to their constituencies.

Why abolish the death penalty? 
The reasons, particularly from the human rights perspective, are compelling.

The death penalty undermines human dignity and is irreconcilable with human rights. Its abolition is needed to fully safeguard the most sacred of all human rights, the right to life. In this regard, let us recall that in the 1960s, when drafting the International Covenant on Civil and Political Rights, its authors were already paving the way for the move in international law towards the abolition of the death penalty. The last paragraph of article 6 of the ICCPR on the right to life provides that “nothing in this article shall be invoked to delay or prevent the abolition of capital punishment in any State party to the Covenant”.

Beyond the right to life, the death penalty invariably entails cruel, inhuman and degrading treatment in violation of international law. The cruelty of the death penalty starts long before the actual killing, when the condemned person sits on death row, caught between the fear of sudden and often violent death and the faint hope that appeals for due process or clemency could spare his life after all. Thus, as Mr. Juan Mendez, the UN Special Rapporteur on Torture, stated in his report to the General Assembly, “there is evidence of an evolving standard within international bodies and a robust State practice to frame the debate about the legality of the death penalty within the context of the fundamental concepts of human dignity and the prohibition of torture and cruel, inhuman or degrading treatment or punishment”.

Furthermore, the application of the death penalty often leads to a violation of the right to equality and non-discrimination. In sentencing, the decision whether to sentence the convicted to death or life imprisonment is often arbitrary, disproportionate and devoid of predictable rational criteria. In this process, the odds are often stacked against the poor and persons belonging to minorities and other common targets of discrimination, such as LGBT persons.

Another crucial element is the finality of the death penalty, such that errors in the criminal justice system become irreparable. Miscarriages of justice cannot be fully eliminated from any legal system. Even the most developed and robust system, with multiple judicial safeguards, cannot provide an absolute guarantee of factual certainty in all cases. Whenever the death penalty is used, there is a grave risk that individuals are executed for crimes they did not commit, as shown in too many instances of individuals who were exonerated after conviction, often on the basis of evidence provided by DNA testing.

And finally, there is lack of merit in the common assertion that the death penalty has a deterrent effect. Research does not support this claim. On the contrary, some studies and research have actually revealed a correlation between the abolition of the death penalty and a decrease in murder rates. Other studies have concluded that capital punishment does not deter criminality more than any other form of punishment, and that the certainty of punishment, rather than its severity, deters criminals. To curb serious crimes, the focus should therefore lie on reforming the justice system and rendering it more effective.

Excellencies,
Ladies and gentlemen,

Today, we will also discuss how to abolish the death penalty. In this regard, the following measures should serve as our starting point.

De jure and de facto abolitionist States should join the 75 countries that have already ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty.

De facto abolitionist States should confirm such abolition in law and pending adoption of the law, establish an official moratorium on executions. Formal abolition is required to secure the outcome of the hard-won national debate and prevent it from unravelling in times of political turmoil and populism.

For all retentionist States, the first step toward abolition is the initiation of a dialogue on this issue. The effectiveness and transparency of such a debate requires the provision to the public of accurate information and statistics on criminality and on the various effective ways to combat it. In this regard, the lack of data on the number of executions or the number of individuals on death row constitutes a serious impediment that remains to be overcome in several States.

Until the death penalty is abolished, or a moratorium established aiming to abolish it, retentionist States should ensure, at a minimum, full compliance with all relevant provisions of the International Covenant on Civil and Political Rights (ICCPR). In particular, article 6 of the ICCPR provides that the application of the death penalty shall be limited to the “most serious crimes.” It should be recalled that this term has been interpreted to mean that the death penalty should only be applied to the crime of murder or intentional killing. 

Furthermore, according to article 6, the death penalty cannot be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.

In addition, according to the jurisprudence of the Human Rights Committee, the sentence of death is so grave that it should not be mandatory. Nor can it be carried out in secret, as it would amount to inhuman treatment of the executed person’s family.

Retentionist countries must also ensure scrupulous respect of due process guarantees. In accordance with the jurisprudence of the Human Rights Committee, the imposition of a death sentence at the conclusion of a trial in which the provisions of article 14 of the ICCPR have not been respected constitutes a violation of the right to life. Furthermore, executions should not take place when an appeal or other recourse is pending, and there must be the possibility for the individual sentenced to seek pardon or appeal.

Ladies and gentlemen,

We must remain ever vigorous in explaining and persuading those who have yet to be convinced that the application of the death penalty is unjust and incompatible with fundamental human rights values. It is an affront to the right to life and human dignity, not just the dignity of the immediate victim, but our shared human dignity.

In this regard, I am confident and grateful that this high level meeting today and the 5th World Congress in June in Madrid will add much impact to that message and contribute to attaining our goal of the universal abolition of the death penalty.

May I wish you fruitful discussions

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