Chapter Four
4.4 HUMAN RIGHTS AND THE DEATH PENALTY
opposite of contemporary western thought. According to Islam, personal freedom is available and permissible only in respect to matters which are not regulated by the injunctions and prohibitions laid down by the Holy Qur'iin and the Sunnah, for these are expressions of the inherent Divine Wisdom manifested through the Divine Will."g
Protocol to the International Covenant on Civil and Political Rights aiming at the abolishment of death penalty.10
At this juncture, a pertinent question that may be posed is why is it necessary for member States to consider and implement the abolition of death penalty? The obvious answer is that death penalty violates Article 3 of the Universal Declaration of Human Rights which proclaims that everyone has the right to life. Hence, abolition of the death penalty is considered desirable for the enhancement of human dignity. Interestingly though, there is one important exception that is made in regard to the imposition of death penalty. Mention is made that any State Party ratifying the Second Optional Protocol may make a reservation at the time of ratification or accession that provides for application of the death penalty in times of war pursuant to a conviction for a most serious crime of a military nature committed during war time. The State Party making such a reservation is required to communicate to the Secretary General of the United Nations the relevant provisions of its national legislation applicable during wartime. The State Party making such reservation is also required to notify the Secretary
10Human Rightsand theLaw,op.cit.,p.56.
General of the United Nations of any beginning or ending of a state of war applicable to its territory."
Before attempting to address whether the imposition of the death penalty infringes upon human rights, it is important to note the progress made by the United Nations members in the abolishment of the death penalty.
Richard C. Dieter, Executive Director, Death Penalty Information Center, points out that while in 1986, 46 countries had abolished the death penalty for ordinary crimes, sixteen years later, the number of countries that had abolished the death penalty had almost doubled to 89. Moreover, another 22 countries had stopped using the death penalty in practice, bringing the total of non-death penalty countries to 111, far more than the 84 countries which retain an active death penalty."
Various nations have abolished the death penalty for different reasons. For example, Spain abandoned the last vestiges of its death penalty in 1995, stating that: "the death penalty has no place in the general penal system of advanced, civilized societies . . . What more degrading or afflictive
11Human Rights and theLaw,op.cit., p. 57.
12 Dieter, RichardC.The Death Penaltyand Human Rights:V.S.Death Penaltyand InternationalLaw http://www.deathpeoaltyiofo.org/Oxfonlpaper.pdf
punishment can be imagined than to deprive a person of his life . . . ?"
Switzerland, on the other hand, abolished the death penalty because it felt that the death penalty constituted "a flagrant violation of the right to life and dignity." Insofar as South Africa is concerned, Justice Chaskalson, the current Chief Justice of South Africa, stated in a historic opinion banning the death penalty under the new constitution that: "The rights to life and dignity are the most important of all human rights ... . And this must be demonstrated by the State in everything that it does, including the way it punishes criminals.,,13
At this juncture, it may be appropriate to point out that not all member states of the United Nations consider the death penalty to be a human rights issue. This became apparent when the United Nations General Assembly considered a resolution in 1994 to restrict the death penalty and encourage a moratorium on executions. Singapore asserted: "Capital punishment is not a human rights issue." The resolution failed to be passed since 74 countries abstained from voting on that particular resolution. However, we cannot deny the fact that for an increasing number of countries the death penalty is a critical human rights issue. Thus in 1997, the U.N. High Commission for
IJhttp://www.deathpenaltyinfo.orglOxfordpaper.pdf
Human Rights approved a resolution stating that the "abolition of the death penalty contributes to the enhancement of human dignity and to the progressive development of human rights."
The member states of the Council of Europe have. established Protocol 6 to the European Convention on Human Rights calling for the abolition of the death penalty. The European Union (EU) went a step further and made the abolition of the death penalty a precondition for entry into the Union. This prompted many eastern European countries which had applied for membership to the EU to halt executions resulting in the halting of executions in many eastern European countries. For example, Poland, Yugoslavia, Serbia and Montenegro had all voted to halt the death penalty."
Moreover, challenging the death penalty is not seen solely as an internal matter among nations. Many European countries, along with Canada, Mexico, and South Africa, have resisted extraditing persons to countries like the United States unless there are assurances that the death penalty will not be sought.15
14Ibid.
U Ibid.