The right to life is a fundamental human right which is established within international human rights law. This right is seen as ‘the cornerstone of all the other rights’. It is based on the notion that every human being has the inherent right to life. However, the use of the death penalty, also known as the ‘capital punishment’, is an exception to this right. This article aims to provide further insight into the current views regarding the death penalty.
The death penalty internationally
Internationally, the capital punishment increasingly receives more criticism, as it is regarded an inhuman punishment, which should therefore be abolished. This notion is based upon the argument that the death penalty is dehumanising, and therefore a violation of human rights. However, there is no international legal justification for an absolute abolishment. Nonetheless, the death penalty has been abolished in the majority of Member States of the United Nations (UN). In approximately 160 countries, the death penalty has been abolished de jure or de facto. This means that either the death penalty is prohibited by law, or the death penalty is no longer carried out in these countries.
“There appear to be contradicting presumptions about the death penalty between retentionist States and abolitionist States.”
Member States of the Council of Europe (CoE) are fulfilling a progressive role in this trend towards abolishment. Such an abolishment is considered progress in the enjoyment of the right to life. However, in some countries the scope of the death penalty has been expanded over the last years, for example in Algeria, Brunei Darussalam, Bahrain, Bangladesh, India, Maldives, Nigeria, Papua New Guinea, Sudan and the United States of America. Thus, there appear to be contradicting presumptions about the death penalty between retentionist States and abolitionist States.
Inhuman and degrading treatment or punishment
Human rights law states that ‘no one shall be subjected to inhuman and degrading treatment or punishment.’ The question is raised whether the death penalty surpasses the threshold of inhuman and degrading treatment or punishment. Different international and regional actors give important insights concerning the death penalty in relation to human rights.
For example, in 2015, the United Nations Human Rights Council (HRC) explicitly argued that: “all measures aimed at ending the application of the death penalty are steps towards the enjoyment of the right to life.” The HRC questions the compatibility of the death penalty with human rights. In particular, it questions its compatibility with the right to human dignity, the right to life and the prohibition of torture or other cruel, inhuman or degrading treatment or punishment. The HRC further recalled that former Secretary-General Ban Ki-moon noted on several occasions, that the death penalty has no place in the twenty-first century. Thus, although the death penalty is not explicitly prescribed as a human rights violation, there seems to be a definite trend to abolish the death penalty within the international community.
“The question is whether such a punishment should be something to strive towards.”
On the contrary, the United States of America (US) is a country which still implements the death penalty quite regularly. The US receives a lot of criticism for this capital punishment, especially after the problems that occurred regarding the use of the lethal injection. The lethal injection drugs were expiring, which caused an exponential incline in executions. This was seen as questionable, at the least. However, the president of the US, Donald Trump, is known for adhering to an even more easily enforceable capital punishment. For example, with regard to drug crimes, he stated: “Some countries have a very, very tough penalty — the ultimate penalty — and by the way, they have much less of a drug problem than we do. So, we’re going to have to be very strong on penalties.” Here, Trump implies that the death penalty would be a suiting solution for the current drug problem in the US, and it appears he actually can enforce such a punishment, as he does not need Congress for this objective. The question is whether such a punishment should be something to strive towards. According to the European Court on Human Rights, the answer to this question is a firm ‘no’.
European Court of Human Rights
The Council of Europe (CoE) momentarily has 47 Member States, including all 27 Member States of the European Union. A prominent document of the CoE is the European Convention on Human Rights (ECHR). Article 3 of this human rights document prohibits inhuman or degrading treatment or punishment. In their rulings, the European Court of Human Rights (ECtHR) provides further insights into the articles of the ECHR.
“The anguish and psychological suffering constitutes an inhuman and degrading treatment or punishment.”
Up until 2010, the Court already established that a death penalty proceeded by an unfair trial would violate article 3 of the ECHR. Furthermore, the manner in which the death penalty is carried out, could also violate article 3 (e.g. by stoning). Finally, the death row phenomenon is also a violation of article 3 of the ECHR. This phenomenon focusses on the circumstances the defendant has to endure while being on death row. Thus, the ECtHR has given important insights into the legitimacy of the death penalty in several rulings.
Anguish and psychological suffering
In 2010, the ECtHR gave a new innovative ruling in the case of Al-Saadoon and Mufdhi v. the United Kingdom, which provided a new interpretation as to whether the death penalty itself constituted a violation of human rights. In this case the Court concluded that a defendant endures a high amount of anguish and psychological suffering while awaiting a death penalty. The Court found that, although the death penalty itself does not violate human rights, the fact that this anguish and psychological suffering occurs, constitutes a human rights violation. More specifically, the anguish and psychological suffering constitutes an inhuman and degrading treatment or punishment, which is prohibited by article 3 of the ECHR, as mentioned before.
Due to this ruling, the 47 Member States of the CoE are in practice not allowed to carry out the death penalty. Furthermore, they are no longer allowed to extradite, return, expel or transfer any person to a country where the death penalty is still implemented if there is a significant chance this person will receive this sentence.
Thus, although within the territory of the CoE the death penalty itself does not infringe human rights law, in practice it is not allowed because of the circumstances a defendant has to endure. This regional ruling could give way to an overall abolishment of the death penalty, if other regional courts followed this progressive ruling. This could mean that eventually, finally, the death penalty would no longer be a legal form of punishment and thus inhuman.
Redacteur: Martha Peeters
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 E.g. Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950. Article 3.
 A/HRC/30/18, Capital punishment and the implementation of the safeguards guaranteeing protection of the rights of those facing the death penalty: Yearly supplement of the Secretary-General to his quinquennial report on capital punishment, UN Human Rights Council 16 July 2015, para.56.
 UN Office of the High Commissioner for Human Rights (OHCHR), Moving Away from the Death Penalty: Arguments, Trends and Perspectives, New York 2014, Preface Ban Ki-moon Secretary-General, United Nations.
 Washington Post, 2017. With lethal injection drugs expiring, Arkansas plans unprecedented seven executions in 11 days https://www.washingtonpost.com/news/post-nation/wp/2017/04/07/with-lethal-injection-drugs-expiring-arkansas-plans-unprecedented-seven-executions-in-11-days/?utm_term=.a638d1b60595
 Time, 2018. President Trump’s New Opioid Plan Includes the Death Penalty for Drug Traffickers http://time.com/5204912/trump-opioid-plan-death-penalty/
 NBC News, 2018. Trump wants the death penalty for drug traffickers. He’s got it. https://www.nbcnews.com/politics/donald-trump/trump-wants-death-penalty-drug-traffickers-he-s-got-it-n858201
 Bader and Others v. Sweden 2005, Application no. 13284/04, 8 November 2005, para.47.
 Jabari v. Turkey, Application no. 40035/98, 11 July 2000, para. 41-42-.
 Soering v. the United Kingdom, Application no. 14038/88, 7 July 1989, para. 80-81.
 Al-Saadoon and Mufdhi v. the United Kingdom, Application no. 61498/08, 2 March 2010, para.144.
 Idem, para.123-137.