The death penalty contradicts human dignity and liberty.
Human rights and human dignity are now universally acknowledged as the supreme principles, and as absolute norms, in any politically organised society. The death penalty directly contradicts this very premise and is based on a misconception of justice.
Justice is based on freedom and dignity: a criminal can and should be punished because s/he freely committed an act disruptive to the legal order. It is the very reason why children, or insane persons cannot be held responsible for their actions in a criminal justice system. Death penalty is a contradiction in terms, since it means that at the very moment of conviction, when the criminal is held responsible, and is thus considered as having acted freely and consciously, s/he is being denied this very freedom because the death penalty is irreversible. Human freedom is indeed also defined as the possibility to change and improve the orientation of one’s existence.
The irreversibility of the death penalty contradicts the idea that criminals can be rehabilitated and resocialised. The irreversibility of the death penalty thus simply contradicts the notion of freedom and dignity.
The irreversibility argument has another aspect. Even in the most sophisticated legal system, garnished with the strongest array of judicial safeguards and guarantees of due process, the possibility of miscarriages of justice always remains. Capital punishment can result in the execution of innocent people. This is the very reason why Governor Ryan decided to impose a moratorium in Illinois, after having discovered that thirteen detainees awaiting execution were innocent of the crimes of which they had been accused, and decided in January 2003, to commute 167 death sentences to life imprisonment. The report of the Commission indeed stressed that: “no system, given human nature and frailties, could ever be devised or constructed that would work perfectly and guarantee absolutely that no innocent person is ever again sentenced to death.” In this case, "society as a whole - ie. all of us - in the name of whom the verdict was reached, thus becomes collectively guilty because its justice system has made the supreme injustice possible" said Robert Badinter, French Minister of Justice, in 1981. For a society as a whole, accepting the possibility of bringing innocent people to death flies in the face of its core principles of inalienable human dignity, and of the mere concept of justice.
Justice is based on human rights guarantees: the distinctive character of a reliable judicial system is precisely the existence of human rights guarantees; these notably include guarantees resulting from the right to a fair trial - including e.g. the rejection of proof obtained through torture or other inhuman treatments. In this perspective, the FIDH is convinced that the full respect of those human rights guarantees and the rejection of a legally sanctioned violence are at the core of the credibility of any criminal justice system. Justice, especially when the gravest crimes are concerned and life is at stake, should not rely on chance and fortune; an individual’s life should not depend on random elements such as the jury selection, media pressure, the competence of a defence attorney, etc... The rejection of inhuman sentences, and first and foremost the death penalty, clearly contributes to building a judicial system on principles acceptable universally, in which vengeance has no place and that the population as a whole can trust.
The notion of the “death row phenomenon” indicates the conditions of detention of a person condemned to the capital punishment while awaiting the execution of the sentence. Those conditions of detention - due notably to the very long duration of detention, to the total isolation in individual cells, to the uncertainty of the moment of the execution, to deprivation of contacts with the outside world, including sometimes family members and legal counsel - often amount to an inhuman treatment.
Justice is fundamentally different from vengeance. The death penalty is nothing but a remnant of an old system based on vengeance: that s/he who has taken a life should suffer from the same fate. If understood consistently, this would mean stealing from the stealer, torturing the torturer, raping the rapist. Justice has risen above such a traditional notion of punishment by adopting a principle of a symbolic, yet proportional sanction to the harm done - fine, imprisonment, etc., which preserves the dignity of both victim and culprit.
Furthermore, the FIDH does not believe in the supposed necessity of the death penalty out of regard for the victims and their relatives. The FIDH reaffirms that the victims’ right to justice and compensation is fundamental in a balanced and fair justice system, and that solemn and public confirmation by a jurisdiction of the responsibility of the criminal and the suffering of the victim plays a chief role in order to substitute the need for vengeance (“judicial truth”). But the FIDH nonetheless holds that answering this call for justice by the death penalty serves only to relieve the basest emotional cries for vengeance, and does not serve the cause of justice and dignity (even that of the victims) as a whole. Paradoxically, the victims’ dignity is itself better served by rising above vengeance. The victim’s status of civil party in the criminal procedure contributes to answer the imperious need of the victim to be recognised as such. Providing psychological support and financial compensation to the victims also contributes to their feeling that justice has been rendered and that private vengeance is unnecessary and would have no added value. In light of those elements, the need of victims to vengeance as an argument in favour of the death penalty appears irrelevant.
Eventually, the FIDH notes that the death penalty is used in a discriminatory way. E.g. In the USA, where it particularly affects ethnic minorities, or in Saudi Arabia where foreigners are its first victims.
The death penalty is useless.
Among the most common arguments in favour of the death penalty, one hears that of its usefulness: the death penalty supposedly protects society from its most dangerous elements, and acts as a deterrent for future criminals. None of these arguments can be held to have any validity, as has been proven again and again.
Is the death penalty a protective element for society? It does not appear so: not only are societies which enact capital punishment usually no less protected from crime than societies which do not, but other sanctions are available in order to protect society, notably imprisonment: protection of society does not imply the physical elimination of criminals. In addition, it can be argued that the precautions taken to avoid suicide by death row inmates demonstrate that the physical elimination of the criminal is not the main aim of death penalty: what seems to matter is that the sanction is executed against the consent of the criminal.
With regard to the exemplarity of the death penalty or other cruel punishments, their efficiency as deterrents for criminality has repeatedly been proved wrong. All systematic studies show that death penalty never contributes to lowering the crime rate, anywhere. In Canada for example, the homicide rate per 100,000 population fell from a peak of 3.09 in 1975, the year before the abolition of the death penalty for murder, to 2.41 in 1980. In 2000, whereas police in the United States reported 5.5 homicides for every 100,000 population, the Canadian police reported a rate of 1.8.
The most recent survey of research on this subject, conducted by Roger Hood for the United Nations in 1988 and updated in 2002, concluded that "The fact that the statistics... continue to point in the same direction is persuasive evidence that countries need not fear sudden and serious changes in the curve of crime if they reduce their reliance upon the death penalty1"
This should obviously not come as a surprise: a criminal does not commit a crime by calculating the possible sanction, and by thinking that he will get a life sentence rather than the death penalty. Furthermore, as Beccaria noted in the 18th century, "it seems absurd that the laws, which are the expression of the public will, and which hate and punish murder, should themselves commit one, and that to deter citizens from murder, they should decree a public murder".
Finally, the FIDH notes that the death penalty is very often a barometer of the general human rights situation in the countries concerned: it proves to be a reliable indicator of the level of respect for human rights, as e.g. it is the case with regard to the situation of human rights defenders.
Arguments from international human rights law
The evolution of international law tends to go towards the abolition of the death penalty: the Rome Statute of the International Criminal Court and the UN Security Council resolutions establishing the International Criminal Tribunals for the Former Yugoslavia and for Rwanda do not provide for the death penalty in the range of sanctions although those jurisdictions have been established to try the most serious crimes.
Specific international and regional instruments have been adopted which aim at the abolition of the capital punishment: the UN second optional protocol to the ICCPR aiming at the abolition of the death penalty, the Protocol to the American Convention on Human Rights to abolish the death penalty (Organisation of American States), the Protocol 6 and the new Protocol 13 to the European Convention on Human Rights (Council of Europe). The Guidelines to EU Policy Towards Third Countries on the Death Penalty, adopted by the European Union on 29 June 1998 stress that one of the EU objective is “to work towards the universal abolition of the death penalty as a strongly held policy view agreed by all EU member states”. Moreover, “The objectives of the European Union are, where the death penalty still exists, to call for its use to be progressively restricted and to insist that it be carried out according to minimum standards (...). The EU will make these objectives known as an integral part of its human rights policy.”. The newly adopted EU Charter of fundamental rights also states that “No one shall be condemned to the death penalty, or executed”.
At the universal level, even if the ICCPR expressly provides for the death penalty as an exception to the right to life and surrounds it by a series of specific safeguards, the General comment adopted by the Committee in charge of the interpretation of the Covenant states very clearly that article 6 on the right to life “refers generally to abolition in terms which strongly suggest that abolition is desirable... all measures of abolition should be considered as progress in the enjoyment of the right to life”.
Moreover, in its resolution 1745 of 16 may 1973, the Economic and Social Council invited the Secretary General to submit to it, at five-year intervals, periodic updated and analytical reports on capital punishment. In its resolution 1995/57 of 28 July 1995, the Council recommended that the quinquennial reports of the Secretary-General should also cover the implementation of the safeguards guaranteeing protection of the rights of those facing the death penalty2.
Every year since 1997, the UN Commission on Human Rights calls upon all states that still maintain the death penalty “to establish a moratorium on executions, with a view to completely abolishing the death penalty”3.
On 8 December 1977, the UN General Assembly adopted as well a resolution on capital punishment stating that “the main objective to be pursued in the field of capital punishment is that of progressively restricting the number of offences for which the death penalty may be imposed with a view to the desirability of abolishing this punishment”4.