The Death Penalty - a Defence

Appendix I 

The Capital Punishment and the "right to life" in international document of human rights 

Introduction 

"Human Rights" has become a concept in time. Something which rightly deserves attention. And today's abolitionists have not been late to take advantage of that. They try to promote their agenda by pointing to international documents which speaks of the "right to life", a right which the abolitionists believe is in conflict with the death penalty. Sometimes they refer to article 3 in the UN's Universal Declaration of Human Rights. 

This is a rather new strategy from the abolitionists, but after a closer analysis, we find the abolitionists biting themselves in the tail. We need to have some knowledge to see this amusing thing. 

Therefore, we shall now look at the great international documents and some other documents which speaks of human rights and the "right to life" in relation to the death penalty. We shall then observe that the abolitionists have come to a minefield, because the fundamental international documents testify in this matter more to the advantages of the death penalty. It is only some lately additional paragraphs which want to see some other order of things. 

Before the UN's Universal Declaration 

The abolitionists do not have history on their side when they try to utilize this jewel - the "right to life", in their campaign against the death penalty. The "right to life" and the death penalty have namely been walking on the same common road since the beginning. They have followed in each ones footsteps. The following quote in what concern the two preceding centuries illuminate that: 

"Several national constitutions of the nineteenth and early twentieth century recognized the right to life, generally associated with a phrase acknowledging the exception of capital punishment. For example, Sweden's 1809 Constitution states: 'The King ... shall not deprive anyone or permit anyone to be deprived of life without legal trial and sentence'. In a study prepared by the Secretariat of the Commisssion on Human Rights in early 1947, twenty-six such provisions in various national constitutions were identified." William Schabas, The Abolition of the Death Penalty in International Law, 1997, page 10. 

The United Nations (UN) 

In UN's Universal Declaration of Human Rights 1948, there is no word of the capital punishment neither direct nor indirect. The article 3 says in full: "Everyone has the right to life, liberty and security of person." There is no mention either that death penalty make an exception to this article or that the article make death penalty unacceptable. (The article is not at all written for the judicial system, but if so, then imprisonment should be the most obvious violation against the article.) 

When creating the UN's Universal Declaration there were indeed some States which in different ways expressed a desire to limit the application of the capital punishment. But they were in minority. 

And in viewing the preparatory work of the Universal Declarations we find that, before the second session to the UN's Universal Declarations, the Secretariat for the Commission of the Human Rights drew up a proposal of 48 articles. The article of the "right to life" which were proposed by the Secretariat acknowledge the capital punishment as the only exception to the "right to life". The proposal says: 

"Everyone has the right to life. This right can be denied only to persons who have been convicted under general law of some crime to which the death penalty is attached." 

To this proposal they added 26 national constitutions/fundamental laws which deal with the "right to life". Of these 26, 18 expressly named the capital punishment as an exception to the "right to life". Source: William Schabas, The Abolition of the Death Penalty in International Law, 1997, page 29. 

And a report by the UN Secretariat, in 1980, held firmly that the UN's Universal Declaration of Human Rights remained "neutral" concerning the capital punishment. UN Doc. A/CONF.87/9,§5. 

And we ought to know that the dominate world opinion at the time when UN's Universal Declaration was approved was that there was no conflict between the "right to life" and capital punishment. As William Schabas (abolitionist) writes: "In 1948, the death penalty was an almost universally recognized exception to the right to life." The Abolition of the Death Penalty in International Law, 1997, page 44. 

UN's International Covenant on Civil and Political Rights, 1966, (into force 1976). Article 6 (contained 6 paragraphs) is about the capital punishment. Indeed the convention wished to abolish the capital punishment according to paragraph 6, but not from any reason that the "right to life" demands it, because still we find the "right to life" and death penalty side by side. So the classical traditional view is still unbroken. The two first paragraphs in the article says: 

1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. 

2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court. 

But in December 1971, resolution 2857 (XXVI) was passed by the UN and there we find these words: 

"... in order fully to guarantee the right to life, provided for in article 3 of the Universal Declaration of Human Rights, the main objective to be pursued is that of progessively restricting the number of offences for which capital punishment may be imposed, with a view to the desirability of abolishing this punishment in all countries." 

The resolution were approved by 59 member States. But almost half, 54 member States, including USA, abstained. 

This is the first time in history that a human rights resolution suggests that the "right to life" in some manner may conflict with the death penalty. In the introduction it says "article 3 of the Universal Declarationof Human Rights", and with that they wish to use this article as a reason for abolishing the death penalty. That kind of reference to article 3 when the death penalty is treated we can find also in other coming documents from the UN. Two important remarks must then be pointed out, 1) this is a new interpretation of article 3 which has no historical support, 2) almost all the member States which accepted the UN's Universal Declaration in 1948 had rejected such an interpretation. A question arises: Is it morally and intellectual acceptable to force a definite reinterpretation into an international document and reject the neutral view towards the death penalty, which we know the document itself is standing for? 

In 1989 there is the Second Optional Protocol to the International Covenant on Civil and Political Rights (from 1966, see above). This protocol is against capital punishment in time of peace (but not in war). And that by refering also to article 3 in the UN's Universal Declaration. The introduction says: 

"... Recalling article 3 of the Universal Declaration of Human Rights, adopted on 10 December 1948, and article 6 of the International Covenant on Civil and Political Rights, adopted on 16 December 1966, Noting that article 6 of the International Covenant on Civil and Political Rights refers to abolition of the death penalty in terms that strongly suggest that abolition is desirable, Convinced that all measures of abolition of the death penalty should be considered as progress in the enjoyment of the right to life, Desirous to undertake hereby an international commitment to abolish the death penalty, Have agreed as follows ..." 

59 States voted for this protocol, 26 States voted against, and 48 States abstained. 

Among UN's 189 member States, up to now only about 44 States have ratified this additional protocol. 

The Commission on Human Rights, 1998, resolution 8, is exhorting all States to work for the abolition of the death penalty, also whith reference to article 3 in the Universal Decleration. This new interpretation are as we can see, now more often heard. 

Of the Commissions 53 member States 26 States were voting for, 13 States voting against, and 12 States abstained. 

It is important to observe that when opponents to the death penalty refer to late protocols and resolutions from the UN which express disapproval of the death penalty, these texts were never passed unanimously and from mutual agreement. The topic of the capital punishment have split the UN into two halves. 

Europe 

In the European Convention on Human Rights from 1950, the death penalty is addressed. The first paragraph in article 2 says: 

"Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law." 

As we can see, in the European Convention, the death penalty is an unusually plain exception to the "right to life". (Three other exceptions for the "right to life" is also given in paragraph 2.) 

In 1983 there were written an additional paragraph to the European Convention - protocol number 6 (in force 1985). The tone against the death penalty had now become very sharp. So after about 30 years the abolitionists succeeded in transforming the lawfully permitted into something forbidden (in times of peace). The two first articles says: 

Article 1 – Abolition of the death penalty The death penalty shall be abolished. No-one shall be condemned to such penalty or executed. 

Article 2 – Death penalty in time of war A State may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war; such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions. The State shall communicate to the Secretary General of the Council of Europe the relevant provisions of that law. 

However, nowhere in this additional protocol is the ban against the death penalty in times of peace motivated by the "right to life" formula. That would of course appear strange, since the Convention from 1950 mention the death penalty together with the article of "right to life". 

Today almost all member States in the European Counsel have ratified this additional protocol. And for States that want to be members in the European Counsel it is an absolute necessity to have an intention to ratify this additional protocol. Otherwise they are not welcomed into the community. 

America 

In America (North- Central and South America) there is an "American Convention on Human Rights", 1969. Also in this Convention the right to life stands together with the death penalty. 

Article 4 has the headline "Right to life" and the two first paragraphs says: 

1. Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life. 

2. In countries that have not abolished the death penalty, it may be imposed only for the most serious crimes and pursuant to a final judgment rendered by a competent court and in accordance with a law establishing such punishment, enacted prior to the commission of the crime. The application of such punishment shall not be extended to crimes to which it does not presently apply. 

Most of the countries in America have ratified this Convention, but not the USA. 

In 1990 there came an additional protocol to the Convention, "Protocol To The American Convention On Human Rights To Abolish The Death Penalty". Article 1 says: 

"The States Parties to this Protocol shall not apply the death penalty in their territory to any person subject to their jurisdiction." 

Death penalty in war is yet allowed according to article 2. 

In the introductory words to this additional protocol we met the formulation "right to life" two times: 

"That Article 4 of the American Convention on Human Rights recognizes the right to life and restricts the application of the death penalty ...That the abolition of the death penalty helps to ensure more effective protection of the right to life." 

The protocol make clear that the Convention from 1969 speaks of the right to life and, at the same time, the death penalty. But now it is instead considered that a ban against the death penalty is a more effective protection for the "right to life". Accordingly, in the year 1990 it is no more considered that the death penalty can be united with the right to life. 

In 2001 there were only 8 States which had ratified this additional protocol. 

Islamic declarations 

The following two declarations from the Islamic world shows that the death penalty stands in a peaceful co-operation with the "right to life". 

Universal Islamic Declaration of Human Rights, 1981 

Right to Life a) Human life is sacred and inviolable and every effort shall be made to protect it. In particular no one shall be exposed to injury or death, except under the authority of the Law. 

Arab Charter on Human Rights, 1994 

Article 5 Every individual has the right to life, liberty and security of person. These rights shall be protected by law. 

Article 10 The death penalty may be imposed only for the most serious crimes and anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. 

Article 11 The death penalty shall under no circumstances be imposed for a political offence. 

Article 12 The death penalty shall not be inflicted on a person under 18 years of age, on a pregnant woman prior to her delivery or on a nursing mother within two years from the date on which she gave birth. 

Finally can be named the four Geneva Conventions from 1949. All the Conventions are opened also with these word: 

"To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person ...". 

These words can be seen as a "right to life" declaration although formulated with other words. 

At the same time the Geneva Conventions accepts the death penalty with certain restrictions, see the Geneva Convention 3, article 100-101, the Geneva Convention 4, article 68, the additional protocol 1, article 76:3, 77:5, the additional protocol 2, article 6:4. 

Summary 

In principle and from a historical view, the death penalty and the "right to life" have, in theory and practice, been following each other as friends. 

The UN's Universal Declaration of Human Rights from 1948 contain nothing about the death penalty. The declaration is, according to a UN rapport, "neutral" to the capital punishment. An overwhelming majority of States who in 1948 accept the Universal Declarations of Human Rights did not believed that the death penalty (or imprisonment) violated on article 3. 

The Geneva Conventions expresses respect for man's (right to) life and permits the death penalty. 

The European Convention from 1950 writes of the "right to life" and assert with great clarity that the death penalty is an exception to this right. The additional protocol number 6 to the European Convention which come into force 1985 ban the death penalty in times of peace, however without any reference to the "right to life". 

The American Convention from 1969 speaks of right to life and permits the death penalty. The additional protocol from 1990 ban the death penalty in times of peace also with the "right to life" as a cause. 

Islamic declarations speaks of "right to life" and the sanctity and inviolability of life, and permit the capital punishment. 

In December 1971, there first appears a new interpretation of the concept of the "right to life" in an international document of human rights. Now and later on persons within UN (among others) begin to make use of the formula "right to life" (art. 3 in UN's Universal Declaration) in their hostility against the death penalty. 

There is not yet any detailed defence from people responsible for this historical reinterpretation of the "right to life". Neither have they given any explanation as to why and with what right they use an article for purposes for which that article did not originally stand. They have with that deviated from scientific custom and practice. 

In the light of all these facts we can now say that those who thunder against the death penalty with the help of the "right to life" and point at, for instance, UN's Universal Declaration (1948) or the European Convention (1950) are guilty of ignorance, or worse, of intentional falsification of history.

To APENDIX II