SCHOLARSHIP: Is the Death Penalty Torture Under International Law?

In an article for the University of Oxford Death Penalty Research Unit, Professor John Bessler discusses whether the use of the death penalty should be classified as torture under the norms of international law. Bessler argues that since psychological torture is prohibited under the most fundamental principles of international law (jus cogens norms) and since death threats are a form of psychological torture, then governmental death threats as part of the death penalty are torturous and a violation of international law. Death threats are an integral part of death sentences, from the time they are pronounced to the time they are either carried out or overturned.

Bessler states that “what constitutes torture must be determined by an act’s objective characteristics, not by how state officials characterize an act. For too long, torture and capital punishment have been considered in separate legal silos.” He concludes, “International law should categorize the death penalty as torture per se.”

Prof. Bessler, who teaches at the University of Baltimore School of Law, also discusses the growing international consensus—as found in international treaties, UN Resolutions, and the growing number of abolition countries—to end the death penalty globally. He notes, “The UN General Assembly has passed nine separate resolutions calling for a global moratorium on executions … the ninth in December 2022 when 125 countries voted in favour (with 37 voting against and 9 abstaining). The UN votes show anti-death penalty sentiment growing steadily worldwide, even though executions stubbornly persist…”