Understanding Resolution 36/17 of 2017 on ‘The question of the death penalty’

The appointment of the first Independent Expert on Sexual Orientation and Gender Identity in the 32nd session of the Human Rights Council marked an important milestone in the LGBTI struggle. However, the distance yet to be travelled was brought home in a stark fashion in the 36th session of the Human Rights Council in the debate around the death penalty.

Introduction

Understanding Resolution 36/17 of 2017 on ‘The question of the death penalty’

Resolution 36/17 is the third resolution passed at the Human Rights Council on ‘the question of the death penalty’ with the first resolution being 26/2 of 2014 and the second being 30/5 of 2015. The ‘question of the death penalty’ has also been the subject of numerous resolutions at the predecessor body of the Human Rights Council, the Commission of Human Rights, including in 2003 [2], 2004 [3] and 2005 [4].

The death penalty has also been the subject of resolutions at the General Assembly. The Resolutions at the General Assembly are generally entitled, ‘moratorium on the use of the death penalty’ and aim to ‘establish a moratorium on executions with a view to abolishing the death penalty’ and also interalia, seeks to ‘progressively restrict the use of the death penalty and ‘reduce the number of offences for which it may be imposed’. [5]

While both series of resolutions are connected, the aim of the resolutions at the Human Rights Council are narrower than a moratorium. These series of resolutions aim at crystallizing state practice on the specific question as to what are the legal limitations to the imposition of the death penalty in those cases where states do have the death penalty on the statute books.

The legal framework which is referenced by these resolutions is Article 6 of the International Covenant on Civil and Political Rights (ICCPR) which while recognizing that human beings have the right to life, also lays down the conditions under which the sentence of death may be imposed. [6]

Article 6 (2) clearly states, that the death penalty can only ‘be imposed for the most serious crimes’ and cannot be imposed for ‘crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women’. However, the critical question as to what are the ‘most serious crimes’ remains undefined and these resolutions seek to capture the international law understanding of what these crimes are.

As early as 2002, the then Commission on Human Rights passed a Resolution which urged states which still maintain the death penalty to ‘ensure that the notion of “most serious crimes” does not go beyond intentional crimes with lethal or extremely grave consequences, and that the death penalty is not imposed for non-violent acts such as financial crimes, non-violent religious practice or expression of conscience and sexual relations between consenting adults’. [7] The language of this resolution was mirrored in subsequent resolutions of the Commission on Human Rights in 2003 [8], 2004 [9] and 2005 [10].

The resolutions at the Human Rights Council 26/2 of 2014 and 30/5 of 2015 did not specifically define the concept of ‘the most serious crimes’. Resolution 36/17 of 2017 was the first resolution of the Human Rights Council which sought to state what were the ‘most serious crimes’ for which death penalty should not be applied by urging ‘states that have not yet abolished the death penalty to ensure that it is not imposed as a sanction for specific forms of conduct such as apostasy, blasphemy, adultery and consensual same sex relations’.

The difference it the wording between the resolutions of the Commission and the Council when it came to what were considered to be ‘the most serious crimes’ is the dropping of financial crimes from the listing by the Council and the re-categorization of what the Commission referred to as ‘non-violent religious practise or expression of conscience and sexual relations between consenting adults’. Resolution 36/17, in effect defined what the Commission called ‘non-violent religious practise or expression of conscience’ as ‘apostasy and blasphemy’. The category of ‘sexual relations between consenting adults’ which was used by the Commission was divided into ‘same sex relations’ and ‘adultery’ by the Council.

The nuancing of the understanding of what are ‘the most serious crimes’ is based upon the Report of the Secretary General on ‘Capital Punishment and the implementation of safeguards guaranteeing the protection of the rights of those facing the death penalty’ which is invoked in Resolution 36/17. [11]

The Secretary General’s Report states the current legal position on the interpretation of Article 6 of the International Covenant on Civil and Political Rights (ICCPR):

Article 6 of the International Covenant on Civil and Political Rights regulates the imposition of the death penalty. Under article 6 (2), in States parties that have not abolished the death penalty, the application of the death penalty is strictly limited to the most serious crimes. In 2002, the Human Rights Committee adopted the view that the contents of paragraph 2 should be read as narrowly construed. The application of the death penalty must also be in a manner consistent with all other provisions of the Covenant, in particular the right to fair trial, as provided in article 14 of the Covenant, and the non-discrimination requirements of articles 2 (1) and 26 of the Covenant.

The Report then goes on to note the ‘disproportionate impact of the application of the death penalty on individuals exercising the right to religion or beliefs and freedom of expression’:

Several States continue to criminalize forms of non-religious beliefs, including 13 States that impose the death penalty for blasphemy or apostasy. Furthermore, persons criticizing religious faith, carrying out academic studies of the origins of religions and persons belonging to minorities manifesting religious or non-religious convictions other than the religion practised by the majority of the population, may run the risk of being accused of “blasphemy”, a charge still punishable by death in many States.

The Report then stresses the ‘discriminatory use of the death penalty based on gender or sexual orientation’:

The imposition of the death penalty for offences relating to consensual homosexual conduct continues to be provided for in the legislation of many States. While few cases of executions for consensual same-sex conduct have been carried out recently, the existence of such laws discriminates against the conduct of lesbian, gay, bisexual and transgender persons. Those laws also send a social message. They have an intimidating effect and can create an enabling environment for acts of violence and stigma.

The Human Rights Committee and the Committee on Economic, Social and Cultural Rights have expressed concern at the fact that consensual same-sex relations remain a crime punishable by death in some countries and have concluded that the application of the death penalty in that context represents a grave violation of human rights, including the rights to life, privacy and non-discrimination. The Special Rapporteur on extrajudicial, summary or arbitrary executions has reiterated that death sentences may be imposed only for the most serious crimes and that offences related to homosexual conduct and sexual relations between consenting adults do not meet that threshold. The European Union guidelines on the death penalty also emphasize that the death penalty must not be applied or used in a discriminatory manner on any ground, including sex or sexual orientation.

Resolution 36/17 is an attempt to capture the essence of the above noted concepts through the formulation of ‘urging all states that have not yet abolished the death penalty to ensure that it is not imposed as a sanction for specific forms of conduct such as apostasy, blasphemy, adultery and consensual same-sex relations’.  However, Resolution 36/17 omits to mention the concept of gender identity when it comes to the listing. This omission needs to be rectified in the next Resolution as the two notions of sexual orientation and gender identity are closely related. Even if the death penalty is only for same sex conduct, it is often a person’s visible gender expression or identity which triggers the process of both vigilante action as well as state prosecution.

It should also be noted that Resolution 36/17 has a strongly intersectional component. It specifically addresses the disproportionate impact of the death penalty on poor, disabled, racial and ethnic minorities, persons of diverse sexual orientations and gender identities, religious dissenters and women through the following paragraphs:

4. Calls upon States to ensure that all accused persons, in particular poor and economically vulnerable persons, can exercise their rights related to equal access to justice, to ensure adequate, qualified and effective legal representation at every stage of civil and criminal proceedings in capital punishment cases through effective legal aid, and to ensure that those facing the death penalty can exercise their right to seek pardon or commutation of their death sentence;

5. Urges States that have not yet abolished the death penalty to ensure that the death penalty is not applied against persons with mental or intellectual disabilities and persons below 18 years of age at the time of the commission of the crime, as well as pregnant women;

6. Also urges States that have not yet abolished the death penalty to ensure that it is not imposed as a sanction for specific forms of conduct such as apostasy, blasphemy, adultery and consensual same-sex relations;

8. Also calls upon States to undertake further studies to identify the underlying factors that contribute to the substantial racial and ethnic bias in the application of the death penalty, where they exist, with a view to developing effective strategies aimed at eliminating such discriminatory practices;

Resolution 36/17 has to be understood as trying to limit the application of the death penalty through capturing the current state of international law and policy on the point. What Resolution 36/17 unequivocally captures is that the death penalty is a punishment which impacts minorities of various stripes and hues. The less social and economic power a person has, the more vulnerable the person is to the imposition of the death penalty. By specifically referencing ‘economically vulnerable persons’, ‘persons with mental and intellectual disabilities’, the notion of ‘racial and ethnic bias’ as well as the fact that persons engaging in conduct such as ‘apostasy, blasphemy, adultery and consensual same-sex relations’, the resolution indicates the death penalty targets both dissenters and those who lack social and economic power.

The Amendment Strategy

Analysing the vote on Resolution 36/17

Understanding the ‘Yes vote’

Understanding the ‘No vote’

The USA’s Vote

Japan’s vote  

India’s vote  

Conclusion: Towards an intersectional approach?  

Download full report here.

[2] E/CN.4/RES/2003/67
[3] E/CN.4/RES/2004/67
[4] E/CN.4/RES/2005/59
[5]Resolution 69/186 of 2014. Also see 67/176 of 2013; 65/206 of 2011; 63/168 of 2009 and 69/149 of 2008;
[6] Article 6
1.Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
2.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 and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court.
3.When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.
4.Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.
5.Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.
6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.
[7] E/CN.4/RES/2002/77
[8] E/CN.4/RES/2003/67
[9] E/CN.4/RES/2004/67
[10] E/CN.4/RES/2005/59
[11] A/HRC/36/26