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…”