HUMAN RIGHTS COUNCIL HOLDS HIGH-LEVEL PANEL ON THE DEATH PENALTY, IN PARTICULAR WITH RESPECT TO THE RIGHTS TO NON-DISCRIMINATION AND EQUALITY
The Human Rights Council this morning held its biennial high-level panel discussion on the question of the death penalty, with a focus on human rights violations in the context of the death penalty, in particular with respect to the rights to non-discrimination and equality.
Coly Seck, President of the Human Rights Council, reminded that the Council was holding the biennial high-level panel on the question of the death penalty in line with its resolutions 26/2 and 36/17, when it decided to focus the discussion on the violations of human rights in the context of the death penalty, particularly when it concerned the rights to non-discrimination and equality.
In her opening statement, Michelle Bachelet, United Nations High Commissioner for Human Rights, reminded that death rows were disproportionately populated by the poor and economically vulnerable; members of ethnic minorities; people with psychosocial or intellectual disabilities; foreign nationals; indigenous persons; and other marginalized members of society. Condemning people to death for conduct that should not be criminalized in the first place was never compatible with a State’s human rights obligations. The High Commissioner encouraged all States to take a stand on the right side of history and join the international trend towards abolition.
Didier Reynders, Deputy Prime Minister and Minister for Foreign and European Affairs, and Defence of Belgium, speaking on behalf of a group of States that co-sponsored the resolution to hold this panel, regretted that the death penalty continued to be applied in cases of apostasy, blasphemy, adultery or consensual relations between people of the same sex. Poverty and the death penalty were linked, including due to financial access to legal recourse. Maintaining the death penalty had no impact on the crime rate and it was time to unilaterally turn the page on that practice.
The panellists were Pradeep Kumar Gyawali, Minister of Foreign Affairs of Nepal; Melinda Janki, Director of the Justice Institute Guyana; and Fatimata M’Baye, Lawyer and Co-Founder of the Mauritanian Human Rights Association. Yuval Shany, Chair of the Human Rights Committee, acted as the discussion moderator.
Mr. Shany drew attention to the adoption by the Human Rights Committee of the General Comment No. 36 on the right to life, according to which the death penalty could not be “reconciled with full respect for the right to life.” The General Comment made particular reference to the problem of inequality in the application of the death penalty.
Pradeep Kumar Gyawali, Minister of Foreign Affairs of Nepal, said that in Nepal the abolition of the death penalty had been possible through a long and conscious effort of all stakeholders, including political leaders, civil society, human rights defenders, and the media. It was a conscious national choice and a reflection of shared values.
Melinda Janki, Director of the Justice Institute Guyana, noted that the death penalty, like slavery, sent a message that some lives were worth less than others. It disproportionately affected the poor, the marginalized, the illiterate and the mentally challenged, whereas the rich were able to pay lawyers or get a non-guilty verdict.
Fatimata M’Baye, Lawyer and Co-Founder of the Mauritanian Human Rights Association, drew attention to the case of a blogger who had posted an article about social discrimination in Mauritania and been accused of blasphemy, then sentenced to death. The United Nations could play a role in ending the death penalty by asking those States that still practiced it to abandon that punishment in the name of the right to life.
In the ensuing discussion, speakers expressed belief that the abolition of the death penalty and torture had elevated human dignity and advanced human rights. The death penalty was a human right violation. They hailed the adoption in the United Nations General Assembly of a resolution on a moratorium on the death penalty in December 2018, but noted that around the world capital punishment continued to be imposed in violation of major international standards. Speakers expressed deep concern that the death penalty was imposed in a disproportionate and discriminatory manner to juvenile offenders, women victims of domestic violence, minorities, foreign nationals, persons with disabilities, and poor and economically vulnerable populations. Some, however, noted that every State had the right to choose its legal and criminal justice systems, without external interference, and that the rights of defendants always had to be weighed against the rights of victims and their families, and the broader rights of the community and society.
Speaking were Iceland on behalf of a group of countries, Montenegro, Luxembourg, Italy, Mexico, Singapore on behalf of a group of countries, Chile on behalf of a group of countries, Brazil on behalf of a group of countries, European Union, New Zealand, Pakistan, Australia, Malaysia, Fiji, Slovenia, Ecuador, France, Iraq, Iran, Bangladesh, Argentina, India, Saudi Arabia, and Greece.
Also taking the floor were the following civil society organizations: Friends World Committee for Consultation, Center for Global Nonkilling, International Lesbian and Gay Association, Together against the death penalty, and International Federation of ACAT (Action by Christians for the Abolition of Torture), and the National Human Rights Institution: Commission on Human Rights of the Philippines.
The Council will next continue with its high-level segment.
Opening Statement by the President of the Council
COLY SECK, President of the Human Rights Council, reminded that the Council was holding its biennial high-level panel on the question of the death penalty in line with resolutions 26/2 and 36/17 of the Human Rights Council, where the latter decided to hold at the fortieth session a high-level biennial panel discussion on the violations of human rights in the context of the death penalty, particularly when it concerned the rights to non-discrimination and equality.
Keynote Statements
MICHELLE BACHELET, United Nations High Commissioner for Human Rights, said that the United Nations opposed the use of the death penalty everywhere and in all circumstances. Worldwide, some 170 States had either abolished the death penalty in law, or did not carry out executions in practice. At the end of 2018, 121 States had voted in favour of the General Assembly resolution for a moratorium on the use of the death penalty. The theme of the high-level panel was particularly well chosen because nowhere was discrimination more evident than when one looked at the people on death row – the people who society had decided were beyond rehabilitation and should be killed. The Office of the High Commissioner for Human Rights conducted visits around the globe and consistently reported that death rows were disproportionately populated by the poor and economically vulnerable; members of ethnic minorities; people with psychosocial or intellectual disabilities; foreign nationals; indigenous persons; and other marginalized members of society. Often illiteracy or language barriers meant that the right to effective legal representation of defendants facing the death penalty was not respected. One of the breaches of due process rendered the application of the most severe and irreversible punishment arbitrary, as the Human Rights Committee had reiterated in its recent General Comment on the right to life. In some countries, discrimination extended even to provisions of the criminal code itself.
Some people were sentenced to the death penalty only for being part of the lesbian, gay, bisexual, transgender and intersex community or for having expressed an opinion, for membership of a political group, or for having exercised their freedom of religion. Condemning people to death for conduct that should not be criminalized in the first place was never compatible with a State’s human rights obligations. Discussions of capital punishment often neglected women. They were indeed executed at much lower rates than men, and in some cases were even exempted from the death penalty. But gender discrimination remained an important aspect of the death penalty. A study published in 2018 by the Cornell Centre showed that women who had been sentenced to death across the world were often judged not only on the basis of their crime, but because they were perceived to have betrayed traditional gender roles. Some women were sentenced to death for perceived moral transgressions such as adultery, or even witchcraft. Other women who were sentenced to death for murdering their partner had been victims of severe and repeated domestic abuse for years, and had lived in fear for their lives, but the law in their country only recognized self-defence as a legal defence in the case of direct and imminent lethal threat. Human rights were not monoliths; they developed as societies became more inclusive, integrating the voices and experiences of people who had previously been marginalized, the High Commissioner noted. She encouraged all States to take a stand on the right side of history and join the international trend towards abolition.
DIDIER REYDERS, Deputy Prime Minister and Minister for Foreign and European Affairs, and Defence, in charge of Beliris and of the Federal Cultural Institutions of Belgium, speaking on behalf of a group of States - Benin, Costa Rica, France, Mexico, Moldova, Mongolia, and Switzerland, as well as Belgium – that had sponsored the resolution that decided to hold this panel, congratulated the Gambia for ratifying the second Optional Protocol to the International Covenant on Civil and Political Rights as well as Malaysia for recently abolishing the death penalty, which brought the number of States that had abolished or suspended the use of the death penalty for more than 10 years to 170. He regretted, however, that the death penalty continued to be applied in cases of apostasy, blasphemy, adultery or consensual relations between people of the same sex. These rules only targeted certain segments of society as they exercised their unalienable rights. Poverty and the death penalty were linked, including due to financial access to legal recourse. The death penalty was disproportionately applied to racial and ethnic minorities, foreigners, sexual minorities and women and there was discrimination in the application of the law. He hoped the panel would focus on the rights of non-discrimination and equality. Finally, the Minister said he wished to share two messages, first that the death penalty was a violation of a basic human right, that to life, and that it was not a question of culture, as human rights were universal, but one of political will. He categorically opposed the death penalty in all circumstances. His second message was that maintaining the death penalty had no impact on the crime rate and it was time to unilaterally turn the page on this practice. Belgium would host the seventh international congress against the death penalty with the non-governmental organization Ensemble Contre la Peine de Mort. In September, the group of States would present a new resolution regarding the death penalty.
Statement by the Moderator of the Panel
YUVAL SHANY, Chair of the Human Rights Committee, noted that, in resolution 36/17, the Council had decided that the 2019 biennial high-level panel discussion would address human rights violations related to the use of the death penalty, in particular with respect to the rights to non-discrimination and equality. The resolution called upon States to ensure that the death penalty was not imposed as a sanction for specific forms of conduct such as apostasy, blasphemy, adultery, and consensual same-sex relationships. Mr. Shany drew attention to the adoption by the Human Rights Committee of General Comment 36 on the right to life, which was adopted by all 18 experts on the Committee in October 2018. According to the Committee, the death penalty could not be “reconciled with full respect for the right to life”. It was emphasized that the General Comment considered the most serious crimes only as serious crimes involving intentional killing and that such crimes did not include offenses whose very criminalization violated the freedom of expression, freedom of religion and other civil and political freedoms. The General Comment made particular reference to the problem of inequality in the application of the death penalty, and noted in particular the challenges of age, parenthood, disability and past victimhood, as factors that should normally militate against the application of the death penalty.
Statements by the Panellists
PRADEEP KUMAR GYAWALI, Minister of Foreign Affairs of Nepal, noted that the right to life was sacred and inviolable in Nepal. The faith in personal liberty, integrity and dignity of human life, and respect for human rights lay at the heart of Nepal’s choice to go for the complete abolition of the death penalty. It was a conscious national choice, and a reflection of shared values. There was a long background of how Nepal had come to the stage of complete abolition of the death penalty. The first moratorium on the death penalty had been made in 1931, with some exceptions related to the army and sedition. Even at times when the death penalty was not abolished, it had been used in the “rarest of the rarest cases” only. The amendment to the National Code in 1964 had abolished the death penalty in general. However, its remnants had still been there for serious military and sedition crimes governed by a separate law. Death penalty provisions had been introduced in certain grave crimes under a law in 1985, but within five years that law had been repealed. The Constitution of 1990 had explicitly prohibited capital punishment. Thus, it had taken almost 59 years for Nepal to reach full abolition of the death penalty. The Constitution of 2015 considered the right to life as the bedrock of all human rights and prohibited the death penalty in all cases. The abolition had been possible through a long and conscious effort of all stakeholders, including political leaders, civil society, human rights defenders, and the media.
MELINDA JANKI, Director of the Justice Institute Guyana, said the mere existence of the death penalty was a form of discrimination. The death penalty, like slavery, said that some lives were worth less than others and robbed the criminal of his dignity. The death penalty disproportionately affected the poor, the marginalised, the illiterate and the mentally challenged whereas the rich were able to pay lawyers or get a non-guilty verdict. In Guyana, some citizens did not speak English as a fist language and needed a translator that they might not get. Ms. Janki said she opposed the death penalty in all circumstances. The Justice Institute of Guyana had linked up with Greater Caribbean for Life, Amnesty and the Death Penalty Project and grass roots projects, sending a memorandum on the death penalty to the President of Guyana and high level ministers. She celebrated the success in December 2018 when Guyana abstained on the vote for a moratorium on the death penalty.
FATIMATA M’BAYE, Lawyer and Co-Founder of the Mauritanian Human Rights Association, said that there had been a moratorium on the death penalty in Mauritania since 1987, though there were still death penalty rulings handed down. She drew attention to the case of Mohamed Ould Mkheitir, a blogger who had posted an article about social discrimination in Mauritania, which meant he was accused of blasphemy. When he was arrested, he was asked to repent and quickly withdraw the article, but unfortunately, he was still prosecuted quickly by the police. This case had given rise to a great deal of violence and hatred within the local community. Mohamed was sentenced to death in 2015 by the penal court of the country, which was confirmed in 2016. There was an appeal launched, and a two-year sentence was later handed down. Ms. M’Baye said that the blogger was currently being held in a secret location. The source of law in Mauritania was Islamic law, and women were often sentenced to the death penalty, many times accused of infanticide. The death penalty was an egregious practice that was humiliating and degrading. The United Nations could play a role in ending the death penalty by asking those States that still practiced it to abandon this punishment in the name of the right to life.
Discussion
Iceland, speaking on behalf of a group of Nordic and Baltic countries, voiced alarm over the evidence of the discriminatory use of the death penalty against persons belonging to racial and ethnic minorities, or based on their gender or sexual orientation. Could the panellists share best practices in addressing the discriminatory use of the death penalty against women, especially when linked to adultery? Montenegro was deeply concerned that the death penalty was imposed in a disproportionate and discriminatory manner to juvenile offenders, women victims of domestic violence, minorities, foreign nationals, persons with disabilities, and poor and economically vulnerable populations. Luxembourg reminded that it was marking the fortieth anniversary of the abolition of the death penalty for all crimes. It was a real source of hope that the list of countries abolishing the death penalty was growing longer, but concerns remained about the risk of backlash in all parts of the world.
Italy hailed the adoption in the United Nations General Assembly of a resolution on a moratorium on the death penalty in December 2018, but noted that around the world capital punishment continued to be imposed in violation of major international standards. Mexico stated that the death penalty was a basic human rights violation, which could result in very seriously damaged legal guarantees. Mexico shared its experience of using its diplomatic and consular network to assist its nationals condemned to the death penalty abroad. Singapore, speaking on behalf of a group of countries, noted that the rights of defendants always had to be weighed against the rights of victims and their families, and the broader rights of the community and society to be able to live in peace and security. Every State had the right to choose its legal and criminal justice systems, without external interference.
Chile, speaking on behalf of a group of States, re-stated the importance of protecting the right to life, adding that the death penalty had a disproportionate impact on people in vulnerable situations due to limited access. It rejected the death penalty against all persons in all contexts but particularly against women and children. Brazil, speaking on behalf of a group of States, stated that they were firmly and unequivocally against the death penalty. The death penalty was a human rights violation that was incompatible with the prevention of torture and contradictory with social rehabilitation. The group called on all States to sign a moratorium on the death penalty and to adhere to the second Optional Protocol of the International Covenant on Civil and Political Rights. European Union held an unambiguous and absolute opposition to capital punishment in all cases and under all circumstances, stating that it was inhumane and unnecessary, and called for States still using the death penalty to comply with international standards that guaranteed equality before and by the law. It asked for the panel’s recommendations on how to effectively address gender bias in the application of the death penalty.
New Zealand, speaking on behalf of a group of States, said they remained against the death penalty and urged States to abolish this penalty. They were deeply concerned about laws that provided the death penalty in cases of apostasy, blasphemy, adultery and consensual same sex relationships, as well as for drugs offenses. The group asked the panel how legal systems could prevent discrimination against women and girls in capital sentencing. Pakistan said it lifted the moratorium on the death penalty after a large terrorist attack on a school in Peshawar and stated that the death penalty was awarded to terrorists after the due process of law. It reminded the Council that every State had the inalienable sovereign right to choose its legal and criminal judicial systems in pursuit of its people’s welfare, peace and security. Australia opposed the death penalty in all circumstances against all people and regretted that some countries continued to see the death penalty as an acceptable form of punishment. Australia urged all States to heed the call for abolition. It counselled that transparency around the use of the death penalty was critical to ensure that human rights standards were upheld.
Friends World Committee for Consultation highlighted the impact of discrimination in the use of the death penalty on children of parents sentenced to death, and the discrimination they experienced because of the execution of their parents. Friends World Committee asked the panel: pending abolition, what support or guidance could be given so that the best interest of the child was always taken into account when sentencing a parent? Center for Global Nonkilling emphasized that the United Nations’ Sustainable Development Goals left no place for discrimination. Sustainable development was also seen to include a right for personal development, including personal amendment and rehabilitation, even in the worst cases. International Lesbian and Gay Association noted that globally, there were still six States where the death penalty was implemented for consensual same-sex relations. The formal and informal persecution of lesbian, gay, bisexual and transgender persons remained unchallenged in too many States, and laws that imposed the death penalty for sexual conduct violated the right to life.
Malaysia noted that the decision to abolish the death penalty and a moratorium on all pending sentences was a significant development in the context of human rights promotion and protection in Malaysia. Malaysia emphasized that its Government was engaging in active deliberations with various stakeholders on the issue. Fiji noted that it abolished the death penalty in 2015, following the adoption of the 2013 Fijian Constitution. Fiji called on States that still used the death penalty to apply it in a non-discriminatory and non-arbitrary manner. Slovenia said it strongly opposed the death penalty in all circumstances and for all cases. Where abolition was not immediately possible, Slovenia strongly supported establishing a moratorium on capital punishment with a view of abolishing it in the future.
Ecuador highlighted that the death penalty was incompatible with the right to life. Historically, Ecuador had been opposed to capital punishment, which for the first time was abolished in its constitution of 1906. France opposed the death penalty in all circumstances and everywhere, noting that certain groups were affected disproportionately by capital punishment due to their marginalization and lack of resources. Iraq stated that every country had the sovereign right to choose its judicial system, as a reflection of its society and culture. It stressed that very serious crimes had been committed by terrorist organizations in Iraq.
Iran respected those who had abolished the death penalty, but it could not accept any universal prescription to that effect. Iran remained committed to observing the rule of law and due process in the criminal justice system, while continuing to study the best ways to serve justice. Bangladesh stressed that its application of the death penalty was restricted to very selective cases of the most heinous crimes. No child or pregnant woman could be sentenced to death. Argentina believed that the abolition of the death penalty and torture had elevated human dignity and advanced human rights. The death penalty was a human rights violation.
India reiterated its stance that it was a simplistic approach to characterize the death penalty as a human rights issue in the context of the right to life of the convicted prisoner. This approach was deeply flawed and controversial. There should be no external interference in the criminal justice system of any sovereign State. India had specific provisions for the suspension of the death penalty in exceptional cases, like for pregnant women. Saudi Arabia stated that it used the death penalty for only for most serious crimes and in the most serious circumstances, after a fair trial had been guaranteed. All procedures were in accordance with international standards as Islamic Sharia lay down the provisions of the punishments to guarantee the supreme rights of the people. All States had the sovereign right to bring justice through their own procedures. Greece opposed the death penalty in all cases and circumstances and highlighted the death penalty’s negation of the reformative function that any punishment should bare. It was particularly concerned that the death penalty disproportionately affected women, lesbian, gay, bisexual, transgender and intersex persons, and human rights defenders and therefore urged States to do their utmost to ensure a fair trial.
Commission on Human Rights of the Philippines, via video transmission, stated it was working towards redressing the public misconception that the death penalty deterred crime. It addressed criminality through a human rights-based approach, including proposals on restorative justice. Together against the death penalty was deeply concerned that the death penalty continued to be used in cases of apostasy, blasphemy, adultery, and sexual orientation or gender identity, stating that this was not compliant with non-discriminatory law. It called on all countries to sign a moratorium. International Federation of ACAT (Action by Christians for the Abolition of Torture) stated that the poor and economically vulnerable were overrepresented on death rows due to their lack of access to finance and knowledge of their rights, opining that even when legal aid was offered it was not appropriate nor effective. The Federation was particularly concerned that women were discriminated against following domestic violence and during detention, as prisons did not meet their needs.
Concluding Remarks
YUVAL SHANY, Chair of the Human Rights Committee, noted that many delegates had commended the trend towards the abolition of the death penalty. However, a concern around what some had termed as a backlash against abolition in this field was also noted. A number of representatives had also noted the irreversibility of the death penalty. It was also noted that there was an increasing consensus that the death penalty if applied should only be applied for the most serious crimes. There was also a strong concern from all corners of the room about the problem of discrimination in regard to poverty, sexual orientation, women, psychosocial disability and other issues. The panel was asked: how could all address biases, racial biases, gender biases and other biases in the application of the death penalty, and identify good practices so the death penalty was applied in a non-discriminatory fashion?
PRADEEP KUMAR GYAWALI, Minister of Foreign Affairs for Nepal, expressed optimism that the world would soon reach the goal of complete abolition of the death penalty. Mr. Gyawali noted the importance of respecting the sovereign rights of nations, but he emphasized that the right to life was a cornerstone to all human rights. All States were called upon to comply their national justice systems with the universal values of human rights. No judicial system was immune to human errors, and the death penalty was highlighted as an error which could not be reversed.
MELINDA JANKI, Director of Justice Institute Guyana, said that the bias against women, lesbian, gay, bisexual, transgender and intersex persons and poor people in the justice system, first needed to be identified and then quantified. In order to counter that bias, it was necessary to foster international cooperation, and train judges, lawyers and police officers so that they knew what was happening in the criminal justice system. As for the argument on sovereignty, Ms. Janki found it difficult to follow. A State was made up of citizens and it had the duty to protect all of them. The sovereignty argument was meant to say that judges and lawyers decided who should live or die. The death penalty was an act of revenge rather than justice. Lesbian, gay, bisexual, transgender and intersex persons had the right to decide whom they loved; the world needed more love.
FATIMATA M’BAYE, Lawyer and Co-Founder of the Mauritanian Human Rights Association, noted that no individual deserved the death penalty. Society needed to enter into conciliation and forgiveness. The death penalty was one of the most serious forms of violence, which only bred more violence and vengeance. Women were often penalized in light of social behavioural norms, and adultery was the most important manifestation of that phenomenon. The international community must provide assistance to States to ensure follow-up on any adopted laws.
For use of the information media; not an official record
HRC/19/06E