Taiwan: Cutting the Gordian Knot – Applying Article 16 of the ICCPR to End Capital Punishment
Nigel Li, Wei-Jen Chen and Jeffrey Li
Capital punishment is the death penalty carried out by the government on people who have committed severe crimes. Whether to abolish capital punishment has long been a lightning rod for controversy and debate. Proponents of the death penalty believe that capital punishment is a fair means of exacting revenge for the pain and suffering that the criminal inflicted on the victim – a pound of flesh. Also, they argue that the death sentence effectively curbs the crime rate because it forces criminals to think twice before committing a heinous act. They emphasize that abolishing capital punishment without an acceptable, effective alternative to the death penalty could intensify the debate and lead to a host of social problems. Some even assert that a person who has taken the life of another does not deserve the right to live (Pojman, 2004).
However, people who oppose capital punishment are armed with persuasive arguments. First, taking away one person’s life is tantamount to depriving him or her of human dignity and an opportunity to continue living. And since there is no guarantee that every criminal judgment is correct, the risk of wrongly executing a person is always present. Furthermore, there is no reliable proof (and we have reason to doubt if there has ever been proof) identifying the correlation between the death penalty and the crime rate, and current research suggests that maintaining the death penalty does not necessarily prevent crime (Dayan, 2006).
Although Article 3 of the Universal Declaration of Human Rights (the Universal Declaration) is a manifestation of the international community’s consensus against the death penalty, in the beginning it did not carry the force of law. Later, when the International Covenant on Civil and Political Rights (ICCPR) was passed by the United Nations, it was seized on by death penalty abolitionists to validate their movement (Dinstein, 1981).
Paragraph 1 of Article 6 of the ICCPR reiterates the ‘inherent right to life’, adding that the right cannot be ‘arbitrarily deprived’. Furthermore, paragraph 6 of the same provision states that ‘Nothing in this article shall be invoked to delay or prevent the abolition of capital punishment by any State Party to this Covenant’; on the other hand, paragraphs 2–5 impose limitations upon the death sentence and execution ‘[i]n countries which have not abolished the death penalty’. The compromise implicit in the wording of Article 6 has sparked speculation and debate over the ‘true’ position of the ICCPR’s framers on the abolition of the death penalty (Schabas, 2002). Meanwhile, Article 7 has fuelled discussions on whether inhuman treatment encompasses capital punishment, since it expressly prohibits ‘torture’ and ‘cruel, inhuman or degrading treatment or punishment’ (Schabas, 2002). But repeated looks at Articles 6 and 7 will yield no decisive conclusion on where exactly the framers stood on the death penalty.
In this chapter, the authors suggest that attention instead be turned to Article 16, which promises an elegant solution to this decades-long Gordian knot. Article 16 reads: ‘Everyone shall have the right to recognition everywhere as a person before the law.’ Most commentators would agree that under this provision, a person located everywhere enjoys a right to be recognized as a person in law at the beginning of a personality, usually upon birth, and a right to prevent states from depriving the person of his or her legal personality. Article 16 is relevant as the death penalty takes away more than one’s life – it takes away the person’s entire legal personality. By denying one’s right as a person before the law and turning him or her into a non-person with the death sentence, the institution of capital punishment cannot coexist with the purpose and the letter of Article 16. With Article 16, this chapter aims to illuminate the true meaning of the ICCPR on the death penalty: capital punishment should be prohibited without exception.
This chapter will furthermore challenge the position that the ICCPR framers’ intention is the key in any effort to fathom the position of the ICCPR on the death penalty. Originalism is not applicable, since the framers’ silence is not sufficient to dismiss a rational interpretation based on other interpretative methods. Taiwan adopted the ICCPR as domestic legislative material in 2009, and must take a fresh look at the international covenant without delving into originalism unnecessarily. After all, Taiwan stands alone in the application of the ICCPR; not being a signatory to the covenant, asking whether it should be less fettered by the framers’ intention when interpreting Article 16 may help others see the ageing document in a new light.
II. The Death Penalty Debate Surrounding the ICCPR
i. Background and History of the ICCPR
Article 3 of the Universal Declaration reads: ‘Everyone has the right to life, liberty and security of person.’ It is commonly believed that when the Universal Declaration of Human Rights was written, the framers and signatory countries did not intend for it to carry the force of law (Bishop, 2002). The absence of any apparent reference to the death penalty in Article 3 is often exploited by capital punishment proponents to argue for the legality of the punishment. But at the same time, Article 3 has also been the basis of several international covenants circumscribing the use of the death penalty.1
In December 1966, the United Nations passed the ICCPR, an international human rights treaty concerned with the ‘right to life’; it did not enter into force until March 1976, and has since been ratified by 167 countries around the world.
Subsequent to the enactment and ratification of the ICCPR, on 15 December 1989, the General Assembly of the United Nations adopted the Second Optional Protocol to the International Covenant on Civil and Political Rights (the Second Protocol). Paragraphs 1 and 2 of Article 1 of the Second Protocol state that ‘No one within the jurisdiction of a State Party to the present Protocol shall be executed. … Each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction.’ No state is required to sign the Second Optional Protocol. For those states that do sign it, Article 2.1 of the Second Optional Protocol reads: ‘No reservation is admissible to the present Protocol, except for a reservation made at the time of ratification or accession that provides for the application of the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime.’ Currently, 75 states have ratified the treaty.
While the force of Article 3 of the Universal Declaration remains in doubt, Article 1 of the Second Protocol expressly requires all state parties to ‘abolish the death penalty’ in their jurisdictions. Although the signing of the Second Protocol is not mandatory, the fact that it seeks the state parties’ express commitments to abolish the death penalty does not justify or supply the argument that the ICCPR did not outlaw the death penalty at the outset. Whether most of the states are obliged to abolish the death penalty still depends on the intention behind the ICCPR.
Most debates over the ICCPR’s position on the death penalty centre around Articles 6 and 7 of the ICCPR. A comparison and analysis of the arguments are as follows.
ii. Article 6 of the ICCPR
Article 6 of the ICCPR contains six paragraphs.2 The first paragraph of Article 6 indicates that the right to life is fundamental to humans and should not be arbitrarily deprived. As capital punishment deprives human life, whether it is permitted under paragraph 1 rests on the definition of ‘arbitrarily’. Rehman (2003) also pointed out that Article 6 does not provide absolute prohibition against life-taking, but only ‘arbitrary’ deprivation of life. An example where the deprivation of life does not violate this paragraph is a state government’s taking away one person’s life to save more lives in an extreme emergency. However, such action does not constitute support of the death penalty.
In 1990, the Human Rights Committee elaborated on the notion of ‘arbitrariness’ in Van Alphen v. The Netherlands, stating that it is not to be equated with ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability.
In Eversley Thompson v. St Vincent and the Grenadines, in 2000, the Human Rights Committee found that mandatory capital punishment could constitute arbitrary deprivation of one’s right to life, and found that: ‘A system of mandatory capital punishment would deprive the author of the most fundamental of rights, the right to life, without considering whether this exceptional form of punishment is appropriate in the circumstances of his or her case.’ The Committee also found that: ‘The carrying out of the death penalty in the author’s case would constitute an arbitrary deprivation of his life in violation of article 6, paragraph 1, of the Covenant.’
To determine ‘arbitrariness’ with regard to the death penalty under paragraph 1 of Article 6 of the ICCPR, the Human Rights Committee focused on whether the execution method or style is arbitrary, and the death penalty itself was not considered an arbitrary measure.
Paragraph 6 of Article 6 is a sweeping statement that the abolition of capital punishment should not be delayed or prevented, which implies an obligation for all state parties to abolish the death penalty. However, this universality is undercut by the first sentence of paragraph 2 – ‘[i]n countries which have not abolished the death penalty’ – which indicates a degree of tolerance of capital punishment.
Paragraph 2 of Article 6 has invited myriad interpretations. Some commentators view the ICCPR as an expansion of the terse and somewhat equivocal ‘right to life’ provision in Article 3 of the Universal Declaration into a complex text that recognizes capital punishment as an exception or limitation on the right to life (Schabas, 2004; Bishop, 2002). The commentators point to the phrase ‘[i]n countries which have not abolished the death penalty’ to justify their reading (Rothenberg, 2004).
In contrast, Schabas (2002) based his argument on the draft of paragraph 2 of Article 6, which was adopted by the UN Commission on Human Rights. According to his research, the phrase did not include the term ‘abolished’; it read ‘[i]n countries where capital punishment exists’ instead. The report of the Working Group explained that the phrase was intended to show the direction in which the drafters of the ICCPR hoped that the situation would develop. He further stated that it was changed by the Working Party of the General Assembly’s Third Committee so as to satisfy the many delegates who supported abolition of the death penalty.
The UN Commission on Human Rights is involved in the elaboration of human rights standards, including those under the ICCPR. It develops standards relating to international human rights, including the right to development, civil and political rights, economic, social and cultural rights, the elimination of racial discrimination, torture, the rights of the child and the rights of human rights defenders. In fact, the Human Rights Committee has already weighed in on the meaning of Article 6 in terms of the relation between the right to life and capital punishment.
In 1982, the Human Rights Committee first elaborated on Article 6 of the ICCPR in General Comment no. 6:
3. The protection against arbitrary deprivation of life which is explicitly required by the third sentence of article 6 (1) is of paramount importance …. The deprivation of life by the authorities of the State is a matter of the utmost gravity. Therefore, the law must strictly control and limit the circumstances in which a person may be deprived of his life by such authorities …. Accordingly, they ought to consider reviewing their criminal laws in this light and, in any event, are obliged to restrict the application of the death penalty to the ‘most serious crimes’. The article also refers generally to abolition in terms which strongly suggest (paras. 2 (2) and (6)) that abolition is desirable.3
[T]he right to life enunciated in the first paragraph of article 6 of the International Covenant on Civil and Political Rights is the supreme right from which no derogation is permitted even in time of public emergency. The same right to life is enshrined in article 3 of the Universal Declaration of Human Rights adopted by the General Assembly of the United Nations on 10 December 1948. It is basic to all human rights. [emphasis added by the authors]
It also restated the position of Article 6 of the ICCPR in 1992 General Comment no. 20: ‘As the Committee has stated in its general comment No. 6 (16), article 6 of the Covenant refers generally to abolition of the death penalty in terms that strongly suggest that abolition is desirable’ (emphasis added by the authors).
The Human Rights Committee’s interpretation of paragraph 2 of Article 6 is illuminating; the position of Article 6 of the ICCPR on the death penalty is to encourage the state parties to abolish the death penalty. While encouragement may not be tantamount to imposing obligation, it is enough to settle the debate over whether Article 6 advocates or opposes the death penalty.
iii. Article 7 of the ICCPR
The first sentence of Article 7 of the ICCPR reads: ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.’
The death penalty, compared with other types of punishments under the law, is the cruellest and the most inhuman and degrading. No punishment can be more inhuman than deprivation of life, the fundamental element of a human being. In this sense, permitting capital punishment would defy Article 7 of the ICCPR.
The Human Rights Committee also stated in 1992 in its General Comment nos 20(2) and 20(3):
2 …. It is the duty of the State party to afford everyone protection through legislative and other measures as may be necessary against the acts prohibited by article 7, whether inflicted by people acting in their official capacity, outside their official capacity or in a private capacity. [emphasis added by the authors]
3. The text of article 7 allows of no limitation. The Committee also reaffirms that, even in situations of public emergency such as those referred to in article 4 of the Covenant, no derogation from the provision of article 7 is allowed and its provisions must remain in force. The Committee likewise observes that no justification or extenuating circumstances may be invoked to excuse a violation of article 7 for any reasons, including those based on an order from a superior officer or public authority. [emphasis added by the authors]
The Human Rights Committee clearly pointed out that even when inhuman treatment is authorized by official authorities, like the death penalty, it is still prohibited by Article 7 of the ICCPR. Even when the text of Article 7 conflicts with those of other articles under the ICCPR, the Human Rights Committee maintained that the prohibition of inhuman treatment underpinning Article 7 shall prevail. As a result, even if Article 6 allows a state party to maintain capital punishment, such permission might not survive the test under Article 7 and might be deemed a violation of Article 7. According to Schabas (2002), most scholars would concede that Article 7, considered alone, might prohibit capital punishment.
Even in ancient China, there were voices opposing the cruel and barbaric penalty of subjecting an inmate to the same fatal atrocity that he or she had committed (Sheng, 2010).4 Public enforcement of capital punishment was therefore abandoned in favour of non-public enforcement.5 But if it was cruel for people to watch the public enforcement of a death penalty, was the execution any less cruel for the convict?
In any case, there is yet a global consensus on whether the death penalty constitutes cruel, inhuman or degrading treatment in international precedents.
In 1972, the United States Supreme Court found in Furman v. Georgia that the imposition and carrying out of the death penalty in certain cases constitute ‘cruel and unusual punishment’ and are in violation of the 8th and 14th Amendments to the US Constitution. The Supreme Court considered the death penalty unconstitutional for two reasons. First, it violated the equal protection clause because it was discriminatory; second, it violated the due process clause because it was arbitrary and irrational. However, the Supreme Court revisited the death penalty issue four years later (in 1976) in Gregg v. Georgia, and decided that the death penalty was not unconstitutional per se, although it certainly could be unconstitutional as applied. The Supreme Court struck down mandatory death sentences as a violation of the Constitution established in Furman, and allowed the death penalty to stand as a potential method of punishment, if applied under justifiable circumstances.
Meanwhile, most of the cases before the Human Rights Committee regarding Article 7 of the ICCPR are merely related to death row issues, specifically the often protracted wait for executions or where the execution itself is carried out in a way that inflicts gratuitous suffering.
In 1989, the Human Rights Committee declared in Pratt and Morgan v. Jamaica:
13.6 There are two issues concerning article 7 before the Committee: the first is whether the excessive delays in judicial proceedings constituted not only a violation of article 14, but “cruel, inhuman and degrading treatment.” … In principle prolonged judicial proceedings do not per se constitute cruel, inhuman or degrading treatment even if they can be a source of mental strain for the convicted prisoners. However, the situation could be otherwise in cases involving capital punishment and an assessment of the circumstances of each case would be necessary. In the present cases the Committee does not find that the authors have sufficiently substantiated their claim that delay in judicial proceedings constituted for them cruel, inhuman and degrading treatment under article 7. [emphasis added by the authors]
13.7 The second issue under article 7 concerns the issue of warrants for executing and the notification of the stay of execution. The issue of a warrant for execution necessarily causes intense anguish to the individual concerned…. The Committee considers that a delay of close to 20 hours from the time the stay of execution was granted to the time the authors were removed from their death cell constitutes cruel and inhuman treatment within the meaning of article 7. [emphasis added by the authors]
The Human Rights Committee later in 1992 dealt with the duration of detention on death row again in Barrett and Sutcliff v. Jamaica:
It further reiterates that prolonged judicial proceedings do not per se