Human Rights

Overview

International human rights treaties declare that ​“Every human being has the inher­ent right to life.” This right, set forth in Article 6 of the International Covenant on Civil and Political Rights (ICCPR), adopt­ed by the United Nations (UN) in 1966, fur­ther pro­vides that ​“no one shall be arbi­trar­i­ly deprived of his life.” Article 6 fur­ther states that ​“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.” The ICCPR pro­hibits the use of the death penal­ty ​“for crimes com­mit­ted by per­sons below eigh­teen years of age” and bars the exe­cu­tion of women while they are preg­nant. Article 7 of the ICCPR declares that ​“No one shall be sub­ject­ed to tor­ture or to cru­el, inhu­man or degrad­ing treat­ment or punishment.”

When the United States rat­i­fied the ICCPR in 1992, it did so with spe­cif­ic reser­va­tions relat­ing to the use of the death penal­ty. First, it ​“reserve[d] the right, sub­ject to its Constitutional con­straints, to impose cap­i­tal pun­ish­ment on any per­son (oth­er than a preg­nant woman) duly con­vict­ed under exist­ing or future laws per­mit­ting the impo­si­tion of cap­i­tal pun­ish­ment, includ­ing such pun­ish­ment for crimes com­mit­ted by per­sons below eigh­teen years of age.” Second, it stat­ed that ​“the United States con­sid­ers itself bound by arti­cle 7 to the extent that ​‘cru­el, inhu­man or degrad­ing treat­ment or pun­ish­ment’ means the cru­el and unusu­al treat­ment or pun­ish­ment pro­hib­it­ed by the Fifth, Eighth, and/​or Fourteenth Amendments to the Constitution of the United States.” It fur­ther declared that the treaty’s pro­vi­sions ​“are not self-exe­cut­ing,” mean­ing that they are not enforce­able under U.S. domes­tic law with­out enabling leg­is­la­tion by Congress.

The ICCPR estab­lish­es the end of the death penal­ty as a human rights goal, declar­ing that ​“Nothing in [Article 6] shall be invoked to delay or to pre­vent the abo­li­tion of cap­i­tal pun­ish­ment by any State Party to the present Covenant.” This goal was cod­i­fied in the Second Optional Protocol to the International Covenant on Civil and Political Rights, aim­ing at the abo­li­tion of the death penal­ty, which was pro­mul­gat­ed on December 15, 1989. As of December 2022, nine­ty nations were par­ties to the optional protocol.

Article IV of the American Convention on Human Rights expands upon the right to life rec­og­nized in the ICCPR, pro­vid­ing that the death penal­ty ​“shall not be extend­ed to crimes to which it does not present­ly apply” and ​“shall not be re-estab­lished in states that have abol­ished it.” It also pro­vides that cap­i­tal pun­ish­ment shall not be imposed upon indi­vid­u­als who were age 70 or old­er at the time of the offense, or while a peti­tion seek­ing clemen­cy is pend­ing deci­sion. The United States is not a par­ty to the American Convention.

Some of the oth­er inter­na­tion­al human rights treaties that have an impact on the admin­is­tra­tion of cap­i­tal pun­ish­ment in the U.S. are: the Universal Declaration of Human Rights, the American Declaration of the Rights and Duties of Man, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Rights of the Child, the Vienna Convention on Consular Relations, and the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules).

At Issue

Globally, the death penal­ty is typ­i­cal­ly exam­ined through a human rights frame­work, but the U.S. gen­er­al­ly views the issue through a crim­i­nal legal lens. Annual UN reports on the use of cap­i­tal pun­ish­ment world­wide reg­u­lar­ly focus on the ways in which the admin­is­tra­tion of the death penal­ty vio­late fun­da­men­tal human rights, includ­ing the denial of due process, racial dis­crim­i­na­tion, secre­cy, and inhu­mane con­di­tions of con­fine­ment and meth­ods of exe­cu­tion. The European Union has repeat­ed­ly stat­ed its oppo­si­tion in all cir­cum­stances to cap­i­tal pun­ish­ment as an inher­ent vio­la­tion of the human right to life, as has Pope Francis on behalf of the world­wide Catholic Church. Human rights orga­ni­za­tions such as Amnesty International and Human Rights Watch have also stat­ed their uni­ver­sal oppo­si­tion to the death penalty.

This dis­crep­an­cy between inter­na­tion­al and domes­tic dis­course is reflect­ed in the a lack of empha­sis on human rights in the U.S.. In August 2022, UN Committee Expert and Country Rapporteur Faith Dikeledi Pansy Tlakula, on behalf of the UN Committee on the Elimination of Racial Discrimination, ​“expressed con­cern at the lack of an insti­tu­tion­alised coor­di­nat­ing mech­a­nism such as a nation­al human rights insti­tu­tion” in the U.S.

In 2007, the UN General Assembly adopt­ed a res­o­lu­tion call­ing for a world­wide mora­to­ri­um on the death penal­ty with a view to abo­li­tion. In each of the eight General Assembly bien­ni­al ses­sions since, the UN has approved new ver­sions of this res­o­lu­tion, with its December 15, 2022 vote receiv­ing 125 votes in favor, 37 against, and 22 absten­tions. The United States, along with Iran, Saudi Arabia, North Korea, China, and Vietnam, vot­ed no. A mem­o­ran­dum explain­ing the U.S. vote assert­ed that ​“judi­cial enforce­ment of the Eighth Amendment of the U.S. Constitution ensures sub­stan­tive due process that applies at both the fed­er­al and state lev­els and pro­hibits meth­ods of exe­cu­tion that would con­sti­tute cru­el and unusual punishment.”

A July 2022 report of the UN Secretary-General on the Question of the Death Penalty not­ed that ​“170 States have abol­ished or intro­duced a mora­to­ri­um on the death penal­ty either in law or in prac­tice, or have sus­pend­ed exe­cu­tions for more than 10 years.” Abolition of the death penal­ty is a pre­req­ui­site for mem­ber­ship in the European Union and the U.S. remains an out­lier as one of the only west­ern democ­ra­cies to retain capital punishment.

The U.S. rarely rat­i­fies inter­na­tion­al human rights instru­ments and when it does, it typ­i­cal­ly declares them non-self-exe­cut­ing and includes reser­va­tions exempt­ing itself from cer­tain pro­vi­sions. The five rat­i­fi­ca­tions of human rights treaties by the U.S. are notably few­er than the num­bers rat­i­fied by its neigh­bors, Canada (13) and Mexico (16), and its allies in Europe, Australia, and New Zealand.

What DPIC Offers

In 2022, DPIC under­took a new project on Human Rights and the U.S. Death Penalty that fea­tured a series of events and activ­i­ties under­tak­en with the sup­port of the Foreign Office of the Federal Republic of Germany. The events includ­ed a live pre­sen­ta­tions on human rights and the death penal­ty in Berlin and at the Germany Embassy in Washington, D.C., a webi­nar series exam­in­ing var­i­ous pol­i­cy issues relat­ing to the U.S. admin­is­tra­tion and use of the death penal­ty, the record­ing of a pod­cast view­ing racial issues in the admin­is­tra­tion of the U.S. death penal­ty through a human rights lens, and the first of DPIC’s human rights web­pages. The webi­na­rs exam­ined Race, Human Rights, and the U.S. Death Penalty; Human Rights, Excessive Punishment, and Conditions of Death-Row Confinement in the U.S., and Secrecy, Execution Methods, & the International Response.

DPIC pro­vides web­pages on Foreign Nationals on U.S. Death Row, includ­ing vio­la­tions of U.S. human rights oblig­a­tions to pro­vide cap­i­tal­ly charged defen­dants notice of their right to con­sular assis­tance and on major reports on human rights issues in the death penal­ty world­wide. These include Amnesty International’s annu­al reports on glob­al use of the death penal­ty, Harm Reduction International’s reports on the use of the death penal­ty for non-vio­lent drug offens­es in vio­la­tion of inter­na­tion­al law, and the Cornell Center for the Death Penalty Worldwide’s report on the appli­ca­tion of the death penal­ty against women. DPIC also offers human rights analy­sis of the con­fine­ment of pris­on­ers on death rows across the U.S., doc­u­ment­ing more than 1,500 vio­la­tions of U.S. human rights obligations.

DPIC would like to espe­cial­ly thank our for­mer Executive Director, Robert Dunham, for his inspi­ra­tion in envi­sion­ing and devel­op­ing this human rights project.

We would also like to acknowl­edge the gen­er­ous assis­tance from the Foreign Office of the Federal Republic of Germany for encour­ag­ing and sup­port­ing this focus on human rights and the death penalty.