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  • The Abolition of the Death Penalty in International Law

    Third Edition

    This is the third edition of William A. Schabass highly praised study of the abolitionof the death penalty in international law. Extensively revised to take account of devel-opments in the field since publication of the second edition in 1997, the book detailsthe progress of the international community away from the use of capital punishment,discussing in detail the abolition of the death penalty within the United Nations hu-man rights system, international humanitarian law, European human rights law andInter-American human rights law. New chapters in the third edition address capitalpunishment in African human rights law and in international criminal law. An exten-sive list of appendices contains many of the essential documents for the study of capitalpunishment in international law.

    The Abolition of the Death Penalty in International Law is introduced with aforeword by Judge Gilbert Guillaume, President of the International Court of Justice.

    Cambridge University Press www.cambridge.org

    Cambridge University Press052181491X - The Abolition of the Death Penalty in International Law, Third EditionWilliam A. SchabasFrontmatterMore information

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  • The Abolit ion of the

    Death Penalty

    in International Law

    Third edition

    Wil l iam A. SchabasIrish Centre for Human RightsNational University of Ireland, Galway

    Cambridge University Press www.cambridge.org

    Cambridge University Press052181491X - The Abolition of the Death Penalty in International Law, Third EditionWilliam A. SchabasFrontmatterMore information

    http://www.cambridge.org/052181491Xhttp://www.cambridge.orghttp://www.cambridge.org

  • published by the press syndicate of the university of cambridgeThe Pitt Building, Trumpington Street, Cambridge CB2 1RP, United Kingdom

    cambridge university pressThe Edinburgh Building, Cambridge CB2 2RU, UK40 West 20th Street, New York, NY 10011-4211, USA477 Williamstown Road, Port Melbourne, VIC 3207, AustraliaRuiz de Alarcon 13, 28014 Madrid, SpainDock House, The Waterfront, Cape Town 8001, South Africa

    http://www.cambridge.org

    First edition 1993.Second edition 1997.Third edition 2002.C Cambridge University Press 1993, 1997, 2002.

    This book is in copyright. Subject to statutory exceptionand to the provisions of relevant collective licensing agreements,no reproduction of any part may take place withoutthe written permission of Cambridge University Press.

    Printed in the United Kingdom at the University Press, Cambridge

    Typeface Adobe Garamond 10.5/12.5pt System LATEX 2 [TB]

    A catalogue record for this book is available from the British Library

    Library of Congress Cataloguing in Publication data

    Schabas, William, 1950The abolition of the death penalty in international law /William A. Schabas. 3rd ed.

    p. cm.Includes bibliographical references and index.ISBN 0 521 81491 X (hc.) ISBN 0 521 89344 5 (pb)1. Capital punishment. 2. International law. I. Title.K5104.S33 1997341.481 dc20 9629108 CIP

    ISBN 0 521 81491 X hardbackISBN 0 521 89344 5 paperback

    Cambridge University Press www.cambridge.org

    Cambridge University Press052181491X - The Abolition of the Death Penalty in International Law, Third EditionWilliam A. SchabasFrontmatterMore information

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  • Dedication

    SocratesSpartacus and Jesus ChristJoan of ArcDanton and RobespierreJohn BrownLouis RielRoger CasementSacco and VanzettiJulius and Ethel RosenbergKen Saro-Wiwa

    What is remarkable about such a list is how it permits history to be measuredby executions: the apex of Greek philosophy, the decline of Rome and the birthof Christianity, the beginnings of the Renaissance, the French Revolution, theAmerican Civil War, the cold war. It is a gruesome yardstick indeed of humanprogress but, like every yardstick, it must have an end. The constant attentionof international human rights law to the abolition of capital punishment hasbrought that end into sight.

    Cambridge University Press www.cambridge.org

    Cambridge University Press052181491X - The Abolition of the Death Penalty in International Law, Third EditionWilliam A. SchabasFrontmatterMore information

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  • Ni dans le coeur des individus ni dans les moeurs des societes, il ny aurade paix durable tant que la mort ne sera pas mise hors la loi.

    Albert Camus, Reflexions sur la guillotine

    Cambridge University Press www.cambridge.org

    Cambridge University Press052181491X - The Abolition of the Death Penalty in International Law, Third EditionWilliam A. SchabasFrontmatterMore information

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  • Contents

    Foreword page ixPreface to the third edition xiiiTable of cases xivTable of international instruments xxxiList of abbreviations xliii

    Introduction 1

    1 The Universal Declaration of Human Rights and recognitionof the right to life 23

    2 The International Covenant on Civil and Political Rights :drafting, ratification and reservation 45

    3 Interpretation of the International Covenant on Civiland Political Rights 93

    4 Towards abolition: the Second Optional Protocoland other developments 155

    5 International humanitarian law 211

    6 International criminal law 235

    7 European human rights law 259

    8 Inter-American human rights law 311

    9 African human rights law 355

    vii

    Cambridge University Press www.cambridge.org

    Cambridge University Press052181491X - The Abolition of the Death Penalty in International Law, Third EditionWilliam A. SchabasFrontmatterMore information

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  • viii Contents

    Conclusion 363

    Appendices 3791 Universal Declaration of Human Rights 3792 International Covenant on Civil and Political Rights 3803 Optional Protocol to the International Covenant on Civil

    and Political Rights 3894 Second Optional Protocol to the International Covenant on

    Civil and Political Rights Aiming at the Abolition of the Death Penalty 3975 General Comment 6(16) (excerpts) 4026 Convention Against Torture and Other Forms of Cruel, Inhuman

    or Degrading Treatment or Punishment 4037 Convention on the Rights of the Child 4068 Safeguards Guaranteeing Protection of the Rights of Those Facing

    the Death Penalty 4139 Geneva Convention Relative to the Treatment of Prisoners of War 414

    10 Geneva Convention Relative to the Protection of Civilians 41611 Protocol Additional I to the 1949 Geneva Conventions and Relating

    to the Protection of Victims of International Armed Conflicts 42012 Protocol Additional II to the 1949 Geneva Conventions and Relating

    to the Protection of Victims of Non-International Armed Conflicts 42113 Rome Statute of the International Criminal Court 42214 Convention for the Protection of Human Rights and

    Fundamental Freedoms (European Convention on Human Rights) 42315 Protocol No. 6 to the Convention for the Protection of Human Rights

    and Fundamental Freedoms Concerning the Abolition of the DeathPenalty 424

    16 Charter of Fundamental Rights of the European Union 43017 European Union Minimum Standards Paper 43118 Organisation for Security and Cooperation in Europe Commitments 43319 American Declaration on the Rights and Duties of Man 43520 American Convention on Human Rights 43621 Additional Protocol to the American Convention on Human Rights

    to Abolish the Death Penalty 43822 African Charter of Human and Peoples Rights 44023 African Charter on the Rights and Welfare of the Child 44124 Arab Charter on Human Rights 442

    Bibliography 443Index 454

    Cambridge University Press www.cambridge.org

    Cambridge University Press052181491X - The Abolition of the Death Penalty in International Law, Third EditionWilliam A. SchabasFrontmatterMore information

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  • Foreword

    William Schabass work on the abolition of the death penalty could not be moretimely, offering as it does a broad overview of the legal progress in the fieldover the last fifty years. In 1948, the Universal Declaration of Human Rightsproclaimed the right to life. In 1966, the United Nations Covenant on Civil andPolitical Rights established that no one shall be arbitrarily deprived of life. It wenton to add that in countries where the death penalty has not been abolished, adeath sentence can only be pronounced for the most serious crimes in accordancewith the law in force at the time of the commission of the crime. In 1989, anadditional protocol to the Covenant, abolishing the death penalty in peacetime,was adopted. Thus we have moved from the proclamation of a principle to itsregulation, and from regulation of that principle to abolition.

    European law underwent an evolution parallel to that of the UnitedNations. The European Convention on Human Rights specified, in 1950, that

    Everyones right to life shall be protected by law. No one shall be deprived of his lifeintentionally save in the execution of a sentence of a court following his conviction ofa crime for which this penalty is provided by law.

    The Sixth Protocol to the Convention abolished, in 1982, the death penalty, exceptin time of war or imminent danger of war.

    In the Western hemisphere, a comparable progress took place. In 1948,the American Declaration of the Rights and Duties of Man proclaimed the right tolife in terms similar to those of the Universal Declaration. In 1969, the AmericanConvention on Human Rights regulated the death penalty in terms which wereinspired largely by the UN Covenant. Even though no abolitionist protocol isyet in force within this system, the Convention nevertheless specifies that thedeath penalty cannot be reestablished in States where it has been suppressed.

    Since these words were written, the Additional Protocol to the American Convention on Human Rightsto Abolish the Death Penalty, OASTS 73, 29 ILM 1447, has entered into force.

    ix

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  • x Foreword

    This final provision is particularly significant, illustrating as it does the closerelationship between domestic and international law. The latter has developedbecause of the clear progress of the abolitionist movement, particularly in Europe.The parallel adoption and signature of international instruments on this subjecthas been inspired by the hope that they will lead to the abandonment of thedeath penalty by new States, and prevent retrogression in abolitionist States.

    The debate is in fact far from resolved. Invoking Beccaria, Victor Hugo andCamus, partisans of abolition claim it to be cruel, no matter what the methodof execution. They also doubt its utility, noting that criminality is no higher inabolitionist States than in retentionist States. They stress its irrevocable nature,especially in cases of judicial error, and add that the personality of the individualwho is to be executed may be quite different from that of the offender at thetime of the crime. Finally, they wonder how society can execute, in cold blood,a man whom it blames for having killed another.

    But public opinion may remain somewhat unconvinced. Many people stillaccept the principle of an eye for an eye, a tooth for a tooth, particularly whenatrocious crimes are involved. Some claim that the exemplary nature of the deathpenalty may play a preventive role, at least in certain cases. Others question thealternatives available in the case of dangerous repeat offenders. They fear thatthe victims right to life may take second place to the right to life of the criminal.

    This raises the question of whether, beyond the conventional instrumentsnow in force, there also exist customary norms of international law concerningthe death penalty.

    William Schabas addresses all of these problems in this thought-provokingwork. He successively analyses the Universal Declaration of Human Rights, theInternational Covenant on Civil and Political Rights and its Second Protocol,international humanitarian law, the European Convention on Human Rights andits Sixth Protocol, and the Inter-American instruments. In every case, he providesa detailed study of the texts and of their travaux preparatoires.

    He then discusses the possible emergence of customary norms, notingthat common article 3 to the four Geneva Conventions of 1949 sets out rulesthat, in the view of the International Court of Justice, correspond to elementaryconsiderations of humanity (Military and Paramilitary Activities in and AgainstNicaragua (Nicaragua v. United States), [1986] ICJ Reports, paras. 218 and255). He reasons that comparable rules must also apply in peacetime. Fromsuch a perspective, the death penalty cannot be pronounced in the absence of ajudgment by an impartial tribunal after a trial which respects the rights of theaccused. Such sentence can only be imposed for the most serious crimes, andcannot be carried out on pregnant women, on children under fifteen years ofage, and on the insane.

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  • Foreword xi

    These are particularly constructive conclusions. For though the deathpenalty has been abolished in many countries, it remains in force in severalparts of the world, notably the United States, Africa and countries which followIslamic law. It follows that the identification of minimum customary guaranteesis consequently an extremely fruitful line of research.

    Ihave takenbothgreatpersonalpleasureandbenefit in readingMrSchabasswork. I hope that other readers share this same pleasure and derive like benefit.

    Gilbert Guillaume, JudgeInternational Court of Justice

    The Hague, January 1993

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  • Preface to the third edition

    Since the first edition appeared in 1993, the debate about capital punishment ininternational law has been utterly transformed. The astonishing speed of eventshas only confirmed the original thesis of the book, that there is an inexorable trendin international law towards the abolition of capital punishment. Indeed, in thefirst edition I noted that according to the lists prepared by Amnesty International,slightly less than half the countries in the world had abolished the death penalty,and that if the tr...

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