Death penalty issue addressed by Special Rapporteur - Bacre Waly Ndiaye

UN Chronicle, Summer, 1998

Knowledge of the international obligations of the United States regarding the death penalty is almost non-existent at that country's state level, and a serious gap exists between federal and state Governments concerning the implementation of those obligations in relation to the application of the death penalty. That was the view of Bacre Waly Ndiaye, the Special Rapporteur on extrajudicial, summary or arbitrary executions, in a report issued by the Commission on Human Rights on 22 January.

The Special Rapporteur also expresses concern that the International Covenant on Civil and Political Rights appeared not to have been disseminated to State authorities. Furthermore, he states that the federal Government cannot claim to represent the States at the international level, and at the same time fail to take steps to implement international obligations accepted on their behalf. While he recognizes the important role the United States is playing in establishing and monitoring human rights standards in many countries of the world, Mr. Ndiaye states that he is compelled to note that human rights seem not to be taken seriously enough in the domestic arena - "there is a generalized perception that human rights are a prerogative of international affairs and not a domestic issue."

Mr. Ndiaye has been mandated by the Commission on Human Rights to "continue monitoring the implementation of existing international standards on safeguards and restrictions relating to the imposition of the death penalty" in relation to the interpretation of article 6 of the International Covenant on Civil and Political Rights, as well as the Second Optional Protocol.

The Special Rapporteur puts forward his view that the use of the death penalty in violation of international standards will not help to resolve social problems and build a more harmonious society. Rather, it will contribute to exacerbated tensions between the races and classes.

Mr. Ndiaye recommends that the Government of the United States: establish a moratorium on executions in accordance with the recommendations of the American Bar Association and resolution 1997/12 of the Commission on Human Rights (question of the death penalty); discontinue the practice of imposing death sentences on juvenile offenders and mentally retarded persons, and amend national legislation in this respect to bring it into conformity with international standards; should not resume executions of women and should respect the de facto moratorium in existence since 1984; review legislation, both at the federal and state levels, so as to restrict the number of offences punishable by death; encourage the development of public defender systems so as to ensure the right to adequate legal representation for indigent defendants; and reinstate funding for legal resource centres in order to guarantee a more appropriate representation of death row inmates, to help to diminish the risk of executing innocent persons.

He also recommends that all alleged violations of the right to life should be investigated, police officials responsible be brought to justice and compensation provided to the victims; measures should be taken to prevent

recurrence of these violations; training on international standards on law enforcement and human rights should be included in police academies, particularly because the United States has taken a leading role in training police forces in other countries; and independent organs, outside the police departments, should be put in place to investigate all allegations of violations of the right to life promptly and impartially.

The Article in Question

Article 6 of the International Covenant on Civil and Political Rights states:

1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be deprived of his life.

2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court.

3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.

4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.

5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.

6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.