Saturday, 29 September 2012

High Commissioner Speech to United Nations on Capital Punishment

On Thursday, the High Commissioner for Human Rights delivered a speech in conjunction with the United Nations General Assembly. Here it is:

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Ministerial-level event on “The Death Penalty: From Moratorium to Abolition”

Statement by Ms. Navanethem Pillay, High Commissioner for Human Rights

United Nations General Assembly

New York, 27 September 2012,

Mr. Chairperson, Excellencies, Ladies and Gentlemen,

     I am grateful to the Permanent Missions of France and Benin for organising this ministerial-level event, which brings together those states that are committed not to apply the death penalty.  It is no surprise that we have plenty of delegates in the room, because the vast majority of states - 150 out of the 193 Member States of the United Nations - have abolished the death penalty or introduced a moratorium, in law or in practice, on its use.  The support for abolition resonates across regions, legal systems, traditions, customs and religious backgrounds.
     The United Nations stands with you.  It is our established policy that the United Nations will neither establish nor directly participate in any judicial mechanism that allows for capital punishment.
     The death penalty is hardly reconcilable with fundamental human rights, starting with the human right to life.  As Secretary-General Ban Ki-Moon recently remarked, the “taking of life is too absolute, too irreversible, for one human being to inflict it on another, even when backed by legal process.”  It is also becoming increasingly obvious that the death penalty invariably entails cruel, inhuman and degrading treatment in violation of international law.  Time and again, research casts legitimate doubt on methods of execution that are supposedly “humane.”  Moreover, the cruelty of the death penalty starts long before the actual killing, when the condemned person sits on death row, caught in a terrorizing limbo between the fear of violent death and the faint hope that appeals for due process or clemency could spare his life after all.
     Almost everywhere, the death penalty is also intricately linked to the darkest episodes of history – dictatorship, war, colonial domination, foreign occupation and oppression of human rights.  In 1981, when Robert Badinter introduced the law by which France abolished the death penalty, he already observed that “without exception, wherever in the world dictatorship and disdain for human rights triumph, one finds inscribed in bloody letters, the death penalty.”  This observation certainly applied to my own home country, South Africa, where we experienced how the Apartheid Regime used the death penalty as a tool of oppression.  We are proud that our Constitutional Court declared the death penalty unconstitutional in 1995 and that the abolition of this sentence was cast into law two years later.
     Remnants of the historical links between oppression and the death penalty remain visible even in the few democratic states that retain the death penalty.  Its application tends to be discriminatory and the poor, the powerless and persons belonging to minority communities make up a disproportionate number of those who are executed.
     Ladies and Gentlemen,
     Year after year, more countries are turning away from the death penalty.  This is also reflected in the increasingly wide support to the annual General Assembly resolution calling for a worldwide moratorium on executions.
     Yet, I will not hide the fact that there are also setbacks.  I am particularly saddened when some States resume executions after decades.  In addition, there have been isolated instances where states have reintroduced the death penalty for certain offences.  From the perspective of international law, this is problematic.  On several occasions, the United Nations Human Rights Committee and the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions have criticized states that have expanded the scope of the death penalty.  They considered its reintroduction for certain offences to be incompatible with Article 6 of the International Covenant on Civil and Political Rights.
     In this regard, I note that Article 6 (2) of the International Covenant clearly provides that only “in countries that have not abolished the death penalty, sentence of death may be imposed” (and that only for the most serious crimes and subject to the most stringent due process guarantees).  This suggests that states that have already abolished the death penalty are no longer entitled to reinstate it.  This interpretation is supported by Article 6 (6), which specifies that the article must not be invoked “to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.”
     Ladies and Gentlemen,
     I would like to use this opportunity to congratulate all states that have taken steps in recent years towards the abolition of the death penalty.  They are too numerous to mention them by name.  Abolishing the death penalty takes political courage.  I deeply regret, however, that there are still efforts calling for the retention or reintroduction of the death penalty – to manipulate public concerns about particularly heinous crimes.   Such attempts should be countered with leadership, reason and mutual support.
     As a first step, I would urge all states that have not yet done so to take heed of the theme of this meeting and move from “moratorium to abolition.”  National laws and ideally the constitution should explicitly outlaw capital punishment.  Furthermore, I would encourage you to take an additional step and reaffirm your commitment to abolition also under international law.  I invite you to join our co-host Benin and 74 other countries that have already ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty.  My Office stands ready to provide you with relevant technical advice, where necessary.
     Moving from moratorium to abolition is not just a technicality.  Formal abolition will seal the hard-won national consensus and prevent it from unravelling in times of political turmoil when populism and rash decisions abound.  
     Leaders also need to explain the ethical and practical reasons for abolishing the death penalty to their constituencies.  Unsubstantiated arguments for the death penalty must be countered.  In particular, there is no proof that capital punishment deters the most serious crimes more effectively than a credible prospect of imprisonment.  Some academic studies even indicate that murder rates fall when the state itself gets out of the “business of killing” and abolishes the death penalty.  Furthermore, research consistently shows that the best deterrent of serious crimes lies in ensuring that criminals face a high chance of capture and punishment within a reasonable time.  The certainty of punishment, rather than its severity, deters criminals.  To curb serious crimes, the focus should therefore lie on reforming the justice system and rendering it more effective.
     I would like to take this opportunity to urge states to increase their cooperation with one another and with civil society to foster the emerging abolitionist global consensus.  It is crucial that leaders speak out for abolition and encourage their neighbours and allies to follow the same path.  Even though the vast majority of states do not apply the death penalty, this majority does not speak with a sufficiently strong and united voice.  I would therefore encourage States and civil society to use all opportunities to do so, including through support to the annual General Assembly resolution on the death penalty.
     My Office and I stand ready to assist you.  My Office carries out a number of activities to advance the debate at the international and national level, such as seminars for scholars and practitioners.  As High Commissioner for Human Rights, I strongly believe that there is no right more sacred than the right to life and I will continue to raise the need for the abolition of the death penalty in my engagement with leaders. 
     The death penalty cannot be reconciled with fundamental human rights values.  It is an affront to human dignity, our shared human dignity.  Every time the State drags a human being to the execution site and kills him in “the name of the people” – our name – a piece of our own human dignity is shattered.
     Thank you for your attention.

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