The death penalty is not forbidden under international law if the criminal laws of a State provide for it as a form of punishment for the most serious crimes. In all cases, it may be pronounced only as the result of a final judgment, rendered by a competent court established by law and in conformity with due process rules and norms (Art. 6 of the International Covenant on Civil and Political Rights).
The death penalty should not be confused with extrajudicial executions. An extrajudicial or summary execution is when a person is arbitrarily deprived of his or her life without a judgment by a competent and independent court or any recourse to processes of law; it is strictly prohibited by international law, whether during peace or war. A Special Rapporteur appointed to the UN Commission on Human Rights is in charge of monitoring and reporting on such executions. Mr. Christof Heyns (South Africa) has been the Special Rapporteur since 2010.
Several international human rights conventions are available for States that wish to renounce the death penalty as a criminal sentence. These texts can mostly be found in the form of optional protocols to existing conventions, which establish provisions for the elimination of the death penalty:
- The Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, was adopted under the aegis of the UN in 1989 and entered into force in 1991 (81 States Parties as of June 2015).
- The Sixth Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms, Concerning the Abolition of the Death Penalty, was adopted by the Council of Europe in 1983 and entered into force in 1985 (46 States Parties in April 2013). This treaty allows use of the death penalty for acts committed in time of war or of imminent threat of war.
- The Thirteenth Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms, Concerning the Abolition of the Death Penalty in All Circumstances, was adopted by the Council of Europe in 2002 and entered into force in 2003 (44 States Parties in June 2015).
- The Protocol to the American Convention on Human Rights, to Abolish the Death Penalty, was adopted by the Organization of American States in 1990 and entered into force in 1991 (13 States Parties in June 2015).
These protocols, and the restrictions imposed on the use of the death penalty in human rights treaties and declarations, reflect the fact that the general trend in international law is to encourage States to abolish the use of capital punishment.
None of the International Criminal Tribunals that have jurisdiction over individuals—the two ad hoc International Criminal Tribunals for the Former Yugoslavia and Rwanda, established in 1993 and 1994, respectively, and the International Criminal Court, whose Statute was adopted on 17 July 1998—include the death penalty among their penalties.
The strongest witness to this trend is the fact that, in order to join the European Union, States are under the obligation to abolish the death penalty, in both law and practice. The American Convention on Human Rights also establishes that “the death penalty shall not be reestablished in states that have abolished it” (Art. 4.3 of the ACHR). On 24 August 1999, the UN Sub-commission on Human Rights (today the Human Rights Council Advisory Committee) called for the elimination of the death penalty for criminals who were under the age of eighteen at the time that they committed their crime. It also asked States that do still have provisions for the death penalty within their laws to hold a moratorium on executions during 2000.
In 2007 and 2010, the General Assembly called for a worldwide moratorium on the death penalty (GA Resolutions 62/149 and 65/206). Since then, the death penalty has been abolished by a number of States, including Albania, Argentina, Burundi, Gabon, Kyrgyzstan, Latvia, Uzbekistan, Rwanda, Togo, and Turkmenistan (according to Amnesty International).
States where the death penalty is not abolished in law but which can be considered as abolitionists because they have not practiced any executions in the past ten years are Cameroon, Eritrea, Ghana, Lao People’s Democratic Republic, Liberia, Malawi, Mongolia, Sierra Leone, South Korea, Swaziland, Tajikistan, Tanzania, and Zambia.
The principal States and territories that still maintain the death penalty, both in law and practice, are Afghanistan, Antigua and Barbuda, Bahamas, Bahrain, Bangladesh, Barbados, Belarus, Belize, Botswana, Chad, China, Comoros, Cuba, Democratic Republic of Congo, Dominica, Egypt, Equatorial Guinea, Eritrea, Ethiopia, Guatemala, Guinea, Guyana, India, Indonesia, Iran, Iraq, Jamaica, Japan, Jordan, Kazakhstan, Kuwait, Lebanon, Lesotho, Libyan Arab Jamahiriya, Malaysia, Nigeria, North Korea, Oman, Pakistan, Palestinian Authority, Qatar, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Saudi Arabia, Singapore, Somalia, Sudan, Syrian Arab Republic, Taiwan, Thailand, Trinidad and Tobago, Uganda, United Arab Emirates, United States of America, Vietnam, Yemen, and Zimbabwe.
For Additional Information: Amnesty International. When the State Kills: The Death Penalty v. Human Rights . London: Amnesty International, 1989.
The Death Penalty in Times of Conflict
The international law of armed conflict restricts or prohibits the use of the death penalty against certain categories of persons:
Persons under eighteen years of age, pregnant women, and mothers of young children:
In both international and non-international armed conflicts, the Additional Protocols to the Geneva Conventions include in their judicial guarantees that “the death penalty shall not be pronounced on persons who were under the age of eighteen years at the time of the offence and shall not be carried out on pregnant women or mothers of young children” (API Arts. 76.3, 77.5; APII Art. 6.4).
The civilian population of occupied territories:
The Fourth Geneva Convention establishes specific restrictions on the use of the death penalty in occupied territories:
- The death penalty may only be imposed in cases of espionage, serious acts of sabotage against the military installations of the occupying power, or intentional offenses that have caused the death of one or more persons, provided that such offenses were punishable by death under the law of the occupied territory in force before the occupation began (GCIV Art. 68).
- In all cases, the death penalty may not be pronounced unless the court has taken into account the fact that the accused, not being a national of the occupying power, is not bound to it by any duty of allegiance (GCIV Art. 68).
- Under no circumstance may the death penalty be pronounced against a protected person who was under eighteen years of age at the time of the offense (GCIV Art. 68).
- Persons condemned to death shall always have the right to petition for pardon, reprieve, or appeal (GCIV Art. 75).
- No death sentence shall be carried out until at least six months after the date at which the protecting power (the ICRC) was informed of the final judgment confirming the death penalty (GCIV Art. 75).
Prisoners of war:
- Prisoners of war and the protecting powers shall be informed as soon as possible of the offenses that are punishable by the death sentence under the laws of the detaining power (GCIII Art. 100).
- The death sentence cannot be pronounced on a prisoner of war unless the court has taken into account the fact that, since the accused is not a national of the detaining power, he or she is not bound to it by any duty of allegiance and is a prisoner as the result of circumstances independent of his or her own will (GCIII Art. 100).
- If the death penalty is pronounced on a prisoner of war, the sentence shall not be executed before at least six months after the date at which the protecting power (the ICRC) was informed of the decision (GCIII Art. 101).
Badinter, Robert, and Roger Hood. The Death Penalty: Beyond Abolition . Strasbourg: Council of Europe Publishing, 2004.
Manchesi, A. “The Death Penalty in Wartime.” International Review of Penal Law , nos. 1–2 (1996): 319–31.
Schabas, William. The Abolition of the Death Penalty in International Law . Cambridge: Cambridge University Press, 2002.