The prohibition of the death penalty under international law

The death penalty, i.e. the deprivation of a person’s life by court order as a punishment for a crime committed, has been used since ancient times in the states of various regions of the planet.

Analyzing the problem of the death penalty, you understand that the application of this punishment, as well as the application of the moratorium, requires a comprehensive scientific analysis, because this topic affects political, psychological, moral, and many other spheres of public life. The death penalty has always been and is the highest measure of punishment in all countries of the world. The problem of the death penalty is its ambiguity.

The death penalty is directed to whom -? Exactly, the individuals. The discussions of whether an individual is a subject of international law take place. Some scholars claim that the individual may be considered a subject of a particular branch of international law – international human rights law or international humanitarian law. But generally speaking, there are no universal international legal acts that recognize individuals as subjects of international law. Universal judicial institutions do not have such provisions either. I think that the right approach is that individuals are subjects of internal law of the states, that have undertaken special legal obligations to protect them.

1. The essence and features of the death penalty. It’s origins 

The death penalty is known in most countries of the world. It appeared when the state assumed the function of carrying out the punishment for committed crimes. 

The death penalty is one of the oldest types of punishment, which arose during the implementation of the Talion principle – the murder of another person by a person was punished by the death of the murderer. In addition, the principle of blood revenge, active in many societies, played an important role. The death penalty was actively practiced in ancient tribes.

Some human rights organizations, such as “Amnesty International”, believe that the death penalty is the worst manifestation of non-compliance with human rights, characterizing it as a cruel and inhumane punishment. They regard the death penalty as a gross violation of the right to life, which has been enshrined in many international treaties. According to this organization, the execution methods in 2021 were beheading, hanging, lethal injection, and shooting.

The electric chair and lethal injection have also become very common in the USA since the 20th century.

Attitudes toward the death penalty are not unanimous in many societies — where it is practiced, there is a growing movement for its abolition; in countries where it has been abolished, there is a certain number of supporters of its restoration.

2. Death penalty and international law

After the end of the Second World War, the tendency to reduce the use and complete abolition of the death penalty is more clearly observed in the world every year. 

After the UN Charter was adopted, the issue of the need to develop a declaration of human rights was raised.

The most important universal human rights document is the Universal Declaration of Human Rights, adopted in 1948 by the UN General Assembly.It is a criterion for all human rights documents, which became the starting point for dozens of other international and regional documents.

On the initiative of several international human rights organizations, the world possesses the World Day Against the Death Penalty every year on October 10. On this day, demonstrations, public discussions, and seminars are held in many countries, to influence the authorities, to ban the death penalty, as well as to draw the attention of broad sections of society to the problem of applying this type of punishment.

On the basis of the Universal Declaration of Human Rights, on December 16, 1966, the UN General Assembly, deciding to permanently put an end to the actions leading to the death penalty and to create the so-called “movement for the abolition of the death penalty” in international law, adopted the International Covenant on Civil and Political Rights , which provided for the protection of individual human rights and freedoms at the global level. As of June 2022, the Covenant has 173 parties and six more signatories without ratification, most notably the People’s Republic of China and Cuba; North Korea is the only state that has tried to withdraw.

The pact provides for the possibility of applying such a type of criminal punishment as the death penalty in countries that have not yet abolished it, only if clearly defined conditions are met, which include the following:

– death sentences can be imposed only for the most serious crimes;

– they can be issued only in accordance with the law that was in force at the time of the commission of the crime and which does not contradict the provisions of the Covenant and the Convention on the Prevention and Punishment of the Crime of Genocide;

– the death penalty can be carried out only in execution of the final sentence issued by a competent court;

Resolution 44/128 of the UN General Assembly on December 15, 1989 adopted the Second Optional Protocol to the aforementioned Covenant (ratified by Ukraine on March 16, 2007), which aims at the complete abolition of the death penalty. As of April 2022, the Optional Protocol has 90 state parties. The most recent country to ratify was Kazakhstan, on 24 March 2022.

The Protocol provides that each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction. Death penalty is only allowed:

 -in time of war 

-pursuant to a conviction for a most serious crime of a military nature committed during wartime.

Obviously enough, such superpower as the United States is not party to the mentioned Protocol.

European system of human rights is generally best and the most effective out of all regional human rights systems. A significant step aimed at abolishing the death penalty was taken by the Council of Europe on April 28, 1983, by adopting Protocol No. 6 to the European Convention of Human Rights (restriction of death penalty). With the exception of Russia, all member states have also ratified it. And later on, in 2022 Russia has been expelled from the Council of Europe because of full-scale invasion to Ukraine it started in February 2022.

The final attempt to abolish the death penalty was made by the Council of Europe on May 3, 2002 by adopting Protocol No. 13 to the ECHR, which refers to the abolition of the death penalty in all circumstances, including in relation to acts committed during war or imminent threat of war. Ukraine ratified Protocol No. 13 by Law of Ukraine No. 318-IV of November 28, 2002.

This Protocol has the title “Complete abolition of death penalty”. (Article 1 – ‘The death penalty shall be abolished. No one shall be condemned to such penalty or executed”). It has since been signed and ratified by all Council of Europe member states except Armenia, Azerbaijan and obviously Russia. Armenia has signed the protocol but not ratified it.

3. Pro and anti death penalty worldwide 

When the UDHR was adopted on 10 December 1948, only 14 countries had abolished the death penalty. Seventy years on, more than two-thirds of UN member states have either abolished it or no longer actually apply it.

In addition to the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and some protocols to it, the United Nations Convention on the Rights of the Child of 1989, which stipulates that “participating states shall ensure that the death penalty is not imposed for crimes committed by persons, younger than 18 years old”.

This Convention apparently is brutally violated by some not that well developed countries. Since 1990 Amnesty International has documented at least 158 executions of persons who were children at the time of the crime for which they had been convicted, in 10 countries: China, the Democratic Republic of Congo, Iran, Nigeria, Pakistan, Saudi Arabia, South Sudan, Sudan, the USA and Yemen. 

Currently, more than half of all states in the world have taken the path of legislative abolition of the death penalty, or do not apply it in practice. The statistics are:

– 80 states have abolished the death penalty for all types of crime (Austria, Germany, Denmark, Ireland, the Netherlands, Norway, Portugal, France, Sweden, Australia, a number of Latin American countries),

– 15 states have abolished the death penalty for all types of crimes, except for exceptional cases, such as war crimes (Argentina, Brazil, Great Britain, Israel, Spain, Canada, Mexico, New Zealand, Switzerland, and so on)

– 23 states have introduced a moratorium on the imposition and execution of the death penalty, and although this type of punishment is retained in law, in practice it is not imposed or executed (for example, Belgium, Bolivia, Greece),

– 78 states retain and apply the death penalty, but the number of countries actually executing convicts is becoming significantly smaller (some of the former Soviet republics, former socialist countries, thirty-eight US states, a number of Asian countries, a group of African states, all Arab states).

4. Death penalty and Ukraine 

One of the reasons for abolishing death penalty in Ukraine was the desire to become a member of the Council of Europe, where one of the mandatory conditions was the abolition of the death penalty However, during 1990-2000, the death penalty was used in Ukraine existed “as an exceptional measure of punishment” in the form of execution. Initially, a moratorium was imposed on the execution of such sentences. The death penalty was established for particularly dangerous crimes against the state, against life, justice, for war crimes. 

The decision of the Constitutional Court of Ukraine No. 11-рп/99 of December 29, 1999 recognized that the death penalty contradicts the Constitution of Ukraine. It was finally abolished as a form of punishment in 2000. The Criminal Code of Ukraine of 2001 no longer provides death penalty as a form of punishment.

Later, on November 28, 2002, Ukraine ratified Protocol No 13 of the European Convention on Human Rights, which prohibits the use of the death penalty under any circumstances. According to this provision, it became impossible to apply the death penalty in Ukraine. Therefore, Art. 64 of the Criminal Code provides for the punishment of life imprisonment for the commission of particularly serious crimes.

Russia started the occupation of territories in 2014 in 2015 the Ukrainian Helsinki Union for Human Rights informed that the leaders of the so-called “DPR” and “LPR” practice executions on these territories. The so-called “people’s courts” responsible for this. Oleg Martynenko, head of the analytical department of the Ukrainian Helsinki Union for Human Rights, stated that “There are no legal means of human rights protection in the territories controlled by illegal armed formations. The so-called “human rights commissioners” of the self-proclaimed “Donetsk People’s Republic” and “Luhansk People’s Republic” are exclusively engaged in the exchange of prisoners of war. At the same time, despite the presence of these positions, “people’s courts” are held in these territories and death sentences are carried out”.

In June 2022, when the full-scale invasion was already in its active phase, reports about the use of death penalty by occupiers emerged again. They wanted to “legally kill” two British citizens and a Moroccan national who all served in Ukraine’s military. British citizens Aiden Aslin and Shaun Pinner, and Moroccan national Saadoun Brahim, were convicted of being foreign mercenaries and partaking in “terrorist” activities when captured by Russian forces.

The “trial” was held behind closed doors. The men were not allowed to present any evidence to counter the accusations or defend themselves. Well, this clearly shows all the fake nature of the so-called “DPR”. This entity is not recognized by members of international arena, so this trial is fake too. But the thing is that they could have killed these foreign volunteer soldiers for real.

The European Court of Human Rights has ordered Russia to ensure that two Britons captured while fighting for Ukraine do not face the death penalty. It issued an order for interim measures, telling Russia it “should ensure that the death penalty imposed on the applicants was not carried out; ensure appropriate conditions of their detention; and provide them with any necessary medical assistance and medication”.

The Ministry of Foreign Affairs of Ukraine called the ‘sentence’ legally null and void, the court itself – propaganda and noted that the actions of Russian puppet terrorists violate the Geneva Convention on the treatment of prisoners of war, since the foreigners are Ukrainian military personnel. The Prosecutor General’s Office noted that they had started an investigation into the fact of the pseudo-sentence that the terrorists announced to foreigners. They reminded that no prisoner of war can be sentenced without protection and without the help of a qualified lawyer or defender.

The sentence is in fact null and void, and luckily, these foreign soldiers as well as the Ukrainian ones, were released from the captivity in September 2022, so no death penalty happened.

5. Conclusion 

Fair enough, international law has in its arsenal legal instruments that explicitly prohibit death penalty. All in all, deprivation of life is, as a rule, arbitrary if it is inconsistent with international law or domestic law. The right to life is the most fundamental right of a person among all rights, despite the fact that its enshrining in international documents and in the legislation of different states differs.

Having analyzed the history and modern status of death penalty, I can say that:

• it is a punishment, the highest, the most extreme form of it;
• it is applied only on behalf of the state (a secondary sign is carried out, as a rule, against the will of the convict);
• the procedural basis is the verdict of the court;
• it is appointed only for crimes provided for by criminal law, no other branches of law;
• it violates the principle of the criminal law to make the offender give retribution for harm done and expiate his moral guilt
• it has exclusivity (the death penalty is the most severe punishment in the history of mankind);

• it pursues two goals – punishment and intimidation

Therefore, replacing the death penalty with life imprisonment is a more humane way of correcting a person. The application of the death penalty can be regarded as an arbitrary deprivation of life, which often causes unbearable suffering to the person who is awarded such a measure of punishment. A democratic, humane state must take into account the value of each person’s life, as well as provide an opportunity for its correction.

Author: Anna Protsai

This article is an extract from the Master Thesis “The prohibition of death penalty under international law” prepared and published by the graduate of the Institute of International Relations of Taras Shevchenko National University of Kyiv, Anna Protsai.

Illustration: Exécution de Marie Antoinette le 16 octobre 1793