Sunday 09 August 2020

Excluding Vulnerable Groups

Over the years, the international community has adopted a series of treaties and other instruments containing prohibitions and restrictions on the use of the death penalty against various vulnerable groups.

Child Offenders

The imposition of the death penalty on a person below 18 years at the time of the commission of the crime is prohibited by two international human rights treaties (Article 6(5) of the ICCPR and Article 37(a) of the UN Convention on the Rights of the Child) and two regional human rights treaties (the American Convention on Human Rights, article 4 (5); and the African Charter on the Rights and Welfare of the Child, article 5 (3)).

The application of the death penalty for these cases is furthermore restricted by three international humanitarian law conventions (Geneva Convention relative to the Protection of Civilian Persons in Time of War of 1949, article 68; Protocol Additional to the Geneva Conventions of 1949, and relating to the Protection of Victims of

International Armed Conflicts (Protocol I), article 77 (5); and Protocol Additional to the Geneva Conventions of 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), article 6 (4)).

These provisions are endorsed by the Resolution 1984/50 adopted by the Economic and Social Council of the United Nations on the Safeguards Guaranteeing Protection of the Right of Those Facing the Death Penalty (No. 3).

Pregnant Women or New Mothers

Article 6(5) of the ICCPR prohibits the execution of pregnant women. No. 3 of the ECOSOC Safeguards of 1984 extends this exclusion to mothers with recently born children.

Similar provisions appear in the Additional Protocols to the Geneva Conventions, which exclude execution of “pregnant women or mothers having dependent infants, for an offence related to the armed conflict” (Protocol I, article 76 (3)) and “pregnant women or mothers of young children” (Protocol II), article 6 (4)).

Persons suffering from insanity, mental illness and mental retardation

No. 3 of the ECOSOC Safeguards of 1984 exempts persons who have become insane from execution. No. 4 of the ECOSOC Resolution 1989/64 on the Additions to Safeguards amplified the restriction of the imposition and the execution of the death penalty for persons suffering from mental retardation or extremely limited mental competence.

These provisions were endorsed by the resolution 2005/59 on the question of the death penalty of adopted by the former Commission on Human Rights, wherein the Member States are urged not to impose capital punishment on or to execute “a person suffering from any mental or intellectual disabilities” (para. 7 (c)).

However, the real difficulty with these provisions lies in its implementation, as problems on the definition of the different concepts (insanity, mental illness, limited mental competence or “any form of mental disorder”) and the degree of subjectivity involved at the stage of diagnosis remain existent in all countries.

The Aged

In its Additions to the Safeguards (Resolution 1989/63, No. 3) the ECOSOC urged all member states to “establish a maximum age beyond which a person may not be sentenced to death or executed”.

Furthermore, the American Convention on Human Rights stipulates that “capital punishment shall not be imposed upon persons who, at the time the crime was committed, were […] over 70 years of age” (article 4 (5)).

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