The United Nations and the Death Penalty

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Jan. 5, 2016 – Ban Ki-moon’s statement on Saturday expressing dismay at the mass execution carried out in Saudi Arabia and his concerns over the nature of the charges and due process for those condemned elicited a terse response from Riyadh’s mission to the United Nations.

Ban, as well as the high commissioner and assistant high-commissioner for human rights, Zeid Hussein and Ivan Simonovic, have repeatedly called for states to abolish the death penalty. If they are to use it then they say the death penalty must only be used for crimes of murder or other forms of intentional killing following a fair and transparent process.

At this stage, there is nothing UN officials can do other than urge abolition because under international law there is no treaty or any other instrument that prohibits the use of the death penalty. The closest is an annual General Assembly resolution calling for states to establish a moratorium on the use of the death penalty with a view to abolishing it.

That resolution, which was first put to a vote in 2007, and is spearheaded by EU countries – particularly Italy and France – has been approved each year by some 100 of the UN’s 193 member states while around 40 countries consistently vote against it.

While General Assembly resolutions are not binding under international law, they are intended to express the will of the international community and can act as a persuasive force in creating international norms.

The text of the General Assembly resolution on establishing a moratorium also calls on states that retain the use of executions to limit the number of offenses for which the death penalty can be applied.

The call to limit the number of offenses is well-founded as at least seven states, including Saudi Arabia as well as Vietnam, Indonesia, Malaysia, Singapore, China and Iran impose the death penalty for drug trafficking.

But it’s not just drug crimes that are punishable by death in some countries. Apostasy is considered a capital crime in both Saudi Arabia and Iran. In Yemen, there are some 360 crimes punishable by death including adultery and prostitution. In Morocco, there are more than 325 while in Egypt there are more than 40, and death sentences have increased there since the 2011 protests that led to the fall of former dictator Hosni Mubarak.

Indeed, it is Egypt, newly elected to the Security Council, that has led the fight back against the UNGA resolution, sending a letter to Ban Ki-moon on behalf of 47 countries, including Iran and Saudi Arabia, stating that “the Charter of the United Nations, in particular, Article 2, paragraph 7, clearly stipulates that nothing in the Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State. Accordingly, the question of whether to retain or abolish the death penalty and the types of crimes for which the death penalty is applied should be determined by each State.”

Despite the recalcitrance of some states, there is confidence that over time the death penalty will be abolished universally with the UN’s Simonovic noting recently that when the UN was founded only eight countries had taken the death penalty out of their laws while the figure is now 99, and only five states now execute more than 25 people per year – China, Iran, Saudi Arabia, Iraq and the United States.

– Denis Fitzgerald
@denisfitz

Related Story: UN Official Cites Progress, Setbacks in Death Penalty Abolition