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The foundation of social order and government is the law. The sovereign uses the law to restrict people's behavior in order to maintain social harmony and tranquility. At some time, there may be punitive effects to breaking the law's rules. Murder, corruption, rape, defilement, violent theft, and treason are just a few of the crimes that carry extremely harsh sentences if convicted. Those found guilty are frequently given a death penalty of hanging, execution by lethal injection, or death squads. Over the last several years, numerous countries have had to abolish the death penalty due to the changing aspect of the society. Many international and regional organizations have come out strongly advocating for the abolishment of the death sentence. The issues of human rights for the accused people have been raised in many forums. Countries that have failed to abolish the death punishment may be viewed negatively for failing to respect the rights of human beings.
The death sentence has become a concern in many countries due to the changing environment. People from the world are now interacting which has made the spread of knowledge and sharing of ideas easier. Most countries through the civil society and the church have come out to criticize the administration of the death penalty. The constitutions of many countries have fundamental rights and freedoms that are to be enjoyed by their citizens. The right to life is one of the fundamental rights that cannot be alienated from a person. In fact, a person must be alive to be governed. The logic of killing a person due to an offense has brought about the question of morality. The question that is frequently examined is whether it is morally right to kill another.
The nations around the globe are diverse in many aspects. The people seriously guard their traditions and values in many states. For instance, the Muslim nations in the Middle East, the Chinese and North Korea are some of the countries whereby the death penalty is graciously administered if one is found guilty of some capital offenses. The record of human rights in some of these countries is very poor which makes it easy for the governments to use some penalties such as death inappropriately. In most societies, religion has been the biggest contributor of laws. This contribution has made religion play a huge role in some of the important issues such as decisions in courts of law. Most countries are either Islamic or Christian. The Christian dominant societies may likely base some of their laws on canon law. For the Muslim countries, Sharia laws are the main sources of law. The use of sharia law in Muslim countries has been blamed for a large number of death row convicts in Islamic countries. This is due to the punitive punishments that are provided by the Islamic laws. Some Islamic nations such as Saudi Arabia and Iran have the highest number of casualties. The United States of America is also a victim of the use of this deterrent. However, the United States government has allowed States to determine whether or not to administer the death penalty. The United States Supreme Court has condemned the death sentence on various occasions (Hans et al. 2015, p. 77). African countries have had their share of the pie in this discussion. Some countries such as South Africa have abolished the penalty. Some states such as Kenya have the penalty, but it is not administered. In the European Countries, the death penalty is one of the determinants of whether a country can be considered to join the European Union (Anon 2017). A state must abolish this punishment to be eligible for admission in the block.
International organizations have called on governments to abolish the death penalty through various projects such as sensitization on the effects of the death penalty in relation to human rights. The International conventions and protocols have been created and ratified by many countries. Most if not all of these international legislations have called on countries to abolish the sentence completely. The Second Optional Protocol to the International Covenant on Civil and Political Rights was passed with the intention of the abolishment of the death penalty. 83 countries have ratified this protocol. This covenant does not abolish death sentence. However, some provisions in the covenant have been used to limit the application of the death penalty. All the countries that have adopted the covenant must observe Article 6 of the convention. The Section has limited the death sentences to the most serious crimes only. If no fair trial was administered or any violation of human rights is reported, the ICCPR prohibits administration of the death penalty. The covenant also prohibits the punishment if the crime committed was not punishable by death, the offender is pregnant or below the age of eighteen years.
Current Position Concerning the Death Penalty in International Law
The death penalty has been discussed in various international and domestic forums all over the world. The international community has had its share of provisions supporting the abolishment of the penalty. Countries all over the world have had their domestic provision regarding this matter. All these provisions are subject to international law. International law is a source of law in many countries which makes international laws relating to the death penalty important. However, the use of the international law has been faced with numerous challenges. It would be tough for international organizations to compel some countries to abide by the international law provisions. Various countries are adopting the use of international law in their quest to create jurisprudence concerning this issue. Some countries have given international law supremacy over domestic law in any case when both sources of law collide or are not compatible. The death punishment offers one of the most suitable scenarios of conflicts of domestic and international law. Courts have been mandated with the task of determining the application of international laws in matters which are of international concern. The death sentence is a matter of international concern because of human rights.
In the case of Makwanyane and Mchunu, 1995(3) SA 391, Justice Arthur Chaskalson said that: “The international and foreign authorities are of value because they analyze arguments for and against the death sentence and show how courts of other jurisdictions have dealt with this vexed issue. For that reason alone they require our attention” (Saflii 2017). In this ruling, the honorable judge gave a clear example of the application of international law in relation to emotive issues such as the death penalty. The recognition of these international instruments must, therefore, be adopted by all jurisdictions.
The current situation of the death penalty in international law is gloomy in some perspectives. As earlier stated, countries are different in many ways. What might be considered unethical or morally wrong in one country may be regarded as right in others. The reports from justice departments of many countries clearly show how many people have been sentenced to death and executed. The respect of ways and traditions of countries is paramount in the international community. Due to the reason of none- interference, and sovereignty, some countries are free to execute convicts whenever necessary without due regard to international law. In Muslim countries, for instance, their legal provisions allow execution of death row convicts (Helfer and Wuerth 2016, p. 565). The crimes that render the application of this punitive sentence are clearly outlined in their laws.
International bodies led by the United Nations have been in the forefront in the attempt to tackle the death sentence. These organizations have created forums whereby people from all over the world meet to engage with each other about human rights. Human rights have been used as a tool to compel countries to abolish the death penalty. The drafting of the Universal Declaration of Human Rights (UDHR) is one of the initiatives that have been considered by international organizations. The Universal Declaration of Human Rights laid down the norms that are expected of countries in relation to human rights. Annual reports are also published by international organizations such as Amnesty International. These reports outline the development in almost every country concerning human rights. In some cases, these reports may indicate how many people have been executed through the death penalty in different countries. Suggestions on how to tackle this issue are also laid down in these reports. The United Nations Commission on Human Rights also led to the creation of International Covenant on Civil and Political Rights. This convention has been used by the international society to regulate on the implementation of death penalty and preservation of human rights.
International law requires that young offenders below the age of majority (18years) should not be sentenced to death. The nature of international law is to protect the vulnerable members of the society. Juvenile offenders can be subjected to unfair trials if the provisions of international law are not followed. However, some countries have gone ahead and subjected child offenders to capital punishment. Some children are executed after they attain the age of majority in an attempt to sideline the illegality of the execution. In the United States of America, around 355 juveniles have been executed which in itself is a worrisome trend (Dieter 1999). Twenty-three US states have no restriction on the use of death penalty to children. Other countries that have executed children over the last few years include Saudi Arabia, Yemen, Iran, Pakistan, and Nigeria (Dieter 1999).
International law also prohibits execution of people with mental illness. Insane persons are disadvantaged in many cases due to their state of mind. Their actions are not intentional in many circumstances. These people also have a right to life and dignity. Before execution, a criminal should be examined to establish his/her sanity. The American law prohibits execution of insane people as stated in the case of Ford v Wainwright, 477 US 399 (1986). However, courts in some states still sentence insane people to death (Dieter 1999).
Relevant International Law Treaty Provisions
Various international law provisions have been created to guide countries on issues concerning human rights and the death penalty at large. The United Nations (UN), the African Union (AU), the European Union (EU) and many other international organizations have created legislation for the protection of human rights. Most countries are signatories to many of these international legal provisions. Others have not fully adopted these laws but have shown interest in abiding by their provisions. Some of the most applicable international legislations include;
International Covenant on Civil and Political Rights (ICCPR)
This ICCPR convention was adopted by the United Nations General Assembly in 1966 and came into force in 1976. In the preamble of the ICCPR, recognition of human dignity and equality of inalienable rights for all human beings is indicated (OHCHR 2017(a)). The preamble also indicates that it is the responsibility of countries to promote, respect and observe human rights. Article six of this international law treaty is the backbone of calls to regulate the execution of criminals.
Article 6(1) states that all human beings have a right to life. This right is fundamental; thus it must be respected. The provision indicates that no human beings should be deprived of this right arbitrary. Article 6(2) of the ICCPR states that death sentences should only be enforced for crimes that are considered to be extremely serious. The seriousness of the criminal offense should be in accordance with the laws present when the offense was being committed. The covenant also provides for the judgment to be given by a competent court of law. This provision has assisted people who were in the past given arbitrary death sentences. The article also recognizes that not all countries have abolished the death sentence; thus it acts as a guiding principle.
Article 6(3) gives an obligation to states in the prevention of genocide. The provision also recognizes that deprivation of life can result in genocide. Article 6(4) of the ICCPR states that any person who has been condemned to death has a right to appeal the sentence. The provision can be interpreted to mean that all sentences can be pardoned regardless of the offense committed if there are enough and reasonable grounds to do so. A right to fair hearing is a constitutional right in many countries. A fair hearing includes appeals after conviction. New evidence may be used in an appeal. Secondly, if an accused person feels that he/she was sentenced to death in an arbitral manner; such persons should be given an opportunity to have their cases considered again for retrial or appeal in a higher court.
Article 6(5) states that children below the age of eighteen shall not have death sentences imposed on them. The provision also shields the pregnant women from being executed. Children are delicate and must be protected (OHCHR 2017(a)). The use of the law is to deter people including children from engaging in criminal activities. Children can be punished in various ways other than imposing death penalties. The psychological torture faced by a child who is condemned to death is very serious due to the age of the child. Pregnant women must be protected due to the innocent child that has not yet been born. As earlier indicated, the right to life is inherent. An unborn child also has a right to live unless otherwise. In the case of Thompson v. Oklahoma 487 US 815 (1988), the US Supreme Court ruled that the execution of children below sixteen years of age violates the Eighth Amendment. The court in its ruling relied partly on international practices and norms (Dieter 1999). Article 6(6) states that the ICCPR has no provision that can be invoked in order to preserve or delay the abolishment of death sentences.
The Universal Declaration of Human Rights (UDHR)
The Universal Declaration of Human Rights was created by the United Nations General Assembly in 1948. This was after the world witnessed massive abuse of human beings during and immediately after the Second World War. This declaration was the first internationally accepted legal document that sought to protect the rights of human beings. Article 3 of the declaration states that all persons have a right to life and liberty (United Nations 1948). Article 5 further says that no person should be exposed to inhuman, cruel or torture as a form of punishment. The death sentence falls under this category of inhuman treatment as punishment for an offense.
The Second Optional Protocol to the ICCPR
This new protocol was created with the aim of the abolishment of the death penalty. The protocol indicated that the abolishment of the death sentence would contribute positively to the enhancement and development of human dignity (OHCHR 2017(b)). The protocol sought to encourage countries that had not ended the death penalty to contemplate eliminating the punishment.
Customary International Law
The world is composed of various groups of people are dynamic and have different practices. International customary laws in relation to the death penalty are not fully defined but practices and norms that have been practiced for a long time with regard to the issue can be identified (Helfer and Wuerth 2016, p. 580). Some countries have had the death penalty for many years of their existence. The execution of criminals was a norm in such countries. Other countries have had death sentences for a shorter period which makes it difficult to identify the practice as customary law. The customary law should align itself with the practices of modern times.
It was a custom that death sentences were only handed out to criminals after a thorough judicial process. The accused were given a chance to be heard by the relevant authorities in many cases. However, in other circumstances, people were indefinitely condemned and executed. In areas where courts were absent, the leaders of the communities such as kings and emperors handed over the death penalty after a lot of considerations. In present times, the same should be exercised. A person must be given an opportunity to be heard by a competent court. Modernity has come about with literacy and innovation. Due to these innovations, it is easier to establish whether a person is guilty of an offense.
It was also a custom that death penalties were handed out to people who were accused of serious crimes such as murder and treason. In modern times, criminal offenses of this kind are serious in all measures and must be treated with the seriousness they deserve. The people all over the world are of the view that when a person kills another in a malicious manner, punitive sentences should be delivered to such people. The society is of the view that the community should live together in harmony whereby all the people respect lives of others. In the present norms, death sentences are given out to people accused and found guilty of engaging in serious crimes. The seriousness of the crime should also be determined by the law and the circumstances on a case by case basis. For instance, if one kills another in the event of self-defense, such a crime is serious. The life of a person is lost in this circumstance, and the law should take its course. However, the circumstances that led to the death of the person must be considered in that case. Customary law in most cases did not give provisions for consideration of intentions. Abolishment of death penalties should be therefore considered on this basis.
It is an international custom not to kill children through court executions. Children in many countries are considered not eligible for execution. Many nations also have over the years considered pregnant women not eligible for death sentences. This customary International law practices have been observed and practiced for many years. The killing of women and children has also been considered immoral and unethical in most societies. Even the cruelest regimes that have existed never entertained the notion of executing small children. However, punitive punishments were handed out to children found to have committed serious crimes such as murder. In the present times, children are being executed in some countries after being found liable for capital offenses. The morals and ethics of the societies in these countries are viewed negatively. The death penalty should, therefore, be abolished completely in order to save the lives of the children who are caught in between the conflict of laws and morality.
The death penalty is a question that has lingered in the minds of many people for a long time. Morality and ethics are basic principles that guide the lives of human being. The judges who award death sentences are always found in a hard place when performing their duties. The aggrieved parties come out demanding justice for their loss. Justice cannot be defined until a case is heard and determined. Human rights are fundamental and must be observed at all times. Nobody deserves to die just because of committing a crime. The law should be created in a manner that supports the society as it grows. The society in the year 2014 is not similar to the society in 1950. The views of the people in those days are completely different in modern times due to advancement in knowledge and increase in literacy. People share ideas and views easily which has led to change in how people view issues. International legislations such as ICCPR should be adopted by all nations and provisions in Article Six implemented. Domestic legislations in nations that have not eradicated the death punishment should be amended to abolish the death sentence or suspend issuing of such sentences. Countries should also be encouraged not to reinstate the death sentence once abolished. In this manner, the fundamental human rights will be respected and maintained around the globe. Alternative ways of punishing capital offenses should be used instead. For instance, life imprisonment with parole after several years should be considered by courts.
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Helfer, L.R. and Wuerth, I.B. (2016). Customary international law: an instrument choice perspective. Michigan Journal of International Law, 37(4): 563 -609.
OHCHR. (2017a). Second optional protocol to the international covenant on civil and political rights. [Online] Available at: http://www.ohchr.org/EN/ProfessionalInterest/Pages/2ndOPCCPR.aspx [Accessed 10 May 2017].
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