Disclaimer – this article discusses death, torture, and its impact on families.
Every day, individuals are sentenced to death and executed as punishment for a range of crimes, many of which should arguably not be criminalised. The crimes include: drug-related offences; murder; sexual crimes; terrorism-related acts; and even same-sex sexual relations [1]. The death penalty, also known as capital punishment, is a significant and controversial issue in international human rights law. It represents an ultimate, irreversible punishment for a range of crimes. Human rights abuses, a questionable crime-deterrent efficacy, and the potential for irreversible miscarriages of justice have made the death penalty a point of controversial debate.
One new way in which international society has pushed for abolition of the death penalty is by claiming that it constitutes torture or inhuman treatment. Article 5 of the United Nations (UN) Charter of Human Rights states that ‘no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’ [2]. This framing of the legality of the death penalty debate within the context of the prohibition of torture arose most significantly in 2012 with the Special Rapporteur on torture and other cruel, inhuman or degrading treatment [3].
Former Attorney General of Kenya and former Chairman of the Ministers of Justice/Attorneys-General of the Common Market for Eastern and South Africa (COMESA) stated that “throughout the process leading to capital punishment and in all aspects thereof, the prohibition of torture and other cruel, inhuman or degrading treatment or punishment applies” [4]. Therefore, the extent to which the death penalty can be considered torture or inhuman treatment, and whether the punishment deserves that classification, will be analysed.
Death Row Phenomenon
Anguish of Waiting for Execution
The death row population is especially vulnerable to serious mental illness and psychological harm [5]. Death row phenomenon is most commonly associated with the emotional distress suffered particularly in regard to the length of time spent on death row. This phenomenon was brought to light after the significant 1989 judgement of the European Court of Human Rights in Soering v the United Kingdom [9]. The decision was reinforced by the Judicial Committee of the Privy Council of the United Kingdom of Great Britain and Northern Ireland in the 1993 case of Pratt and Morgan v The Attorney General for Jamaica and another, wherein it was stated that awaiting death for more than five years could alone constitute cruel or inhuman punishment [6].
The United Nations argues that psychological torture is an inherent aspect of the death penalty [7]. Capital punishment combines two essential elements of psychological torture: the anticipation of physical harm over time, and the helplessness to prevent the harm [8]. The element of anticipation varies across jurisdictions, as some individuals are notified of their execution only hours beforehand, while others may have multiple execution dates [9].
Conditions on Death Row
However, prolonged delay is only one cause of the death row phenomenon, according to former UN Special Rapporteur, Juan Mendez [10]. The conditions in which individuals must reside while on death row - particularly that of solitary confinement - may constitute torture [11]. Solitary confinement commonly involves staying alone in a small cell with no light and limited fresh air for 21-23 hours of the day, depriving individuals of all senses and communication. In 1999, the Committee against Torture found that these conditions constituted torture [12].
Overcrowding is another major issue for those on death row. The UN General Assembly describes these conditions: ‘being detained in an eight-by-ten-foot cell, shared by up to 10 prisoners for 22 hours a day, while the remaining hours are spent walking handcuffed around the prison; a lack of toilets in cells and denial of medical assistance, resulting in the spread of infectious diseases’.[13]
Execution
The UN Human Rights Committee has highlighted that a number of execution methods are contrary to Article 5, which prohibits torture. These include: stoning; injection of untested lethal drugs; gas chambers; burning and burying alive; and public or otherwise humiliating executions [14].
Interestingly, the method of lethal injection has the highest percentage of botched executions, which could amount to torture [15]. Autopsies of those executed in this manner reveal evidence of pulmonary oedema, suggesting that they experienced feelings tantamount to drowning or asphyxiating [16]. For example, Angel Diaz was sentenced to death in the United States for a murder committed in 1979. He took 34 minutes to die by two doses of lethal injection on 13 December 2006. During that time, he was understood to have been in physical pain [17]. The lethal injection requires adequate levels of sodium pentothal, otherwise the anaesthetic effect can fail and the individual will experience excruciating pain or cardiac arrest while paralysed by the drugs [18]. Furthermore, shooting, hanging, and beheading have all failed on occasions to produce instant death and further violence was needed to kill the individual [19]. There seems to be no 'right' or 'humane' way to execute.
Familial Impact
Families, in particular, are often neglected as invisible bearers of pain created by the death penalty [20]. Recognising this broader impact on families can be used to further undermine the legitimacy of the death penalty.
The Supreme Court of India provides guidelines to support families, including sufficient notice prior to execution and the ability to visit beforehand [21]. However, many other countries restrict the visitation access, prohibit physical contact from trial to execution, and include no warnings before the death. In some occasions families only learn of the death days after it has been executed [22]. Generally, families receive the body of the person executed; however, some countries deprive families of this opportunity to bury their dead [23]. This can render families and communities unable to grapple with the reality that a loved one has died.
Additionally, families can become subject to threats and stigma, particularly when seeking employment [24]. Society often employs a lens of ‘guilty by association’, which forcibly imposes an identity of close association with the death penalty. Clearly, capital punishment extends far beyond the individual in question and their execution date, affecting societies and causing intergenerational trauma.
International Law Torture Definition
However, there are issues regarding the current definition of torture under international law. Article 7 of the International Covenant on Civil and Political Rights (ICCPR) specifically prohibits torture in all circumstances [25]. However, Article 6.2 of the ICCPR expressly permits the death penalty in some circumstances [26]. Therefore, it can be argued that defining the death penalty as torture creates a contradiction between Article 6.2 and Article 7. A proper interpretation of this legislation requires a holistic reading, allowing individual provisions to be interpreted in a way that affords them coexistence. Such a reading would suggest that the death penalty is not considered torture under the ICCPR.
Additionally, the UN Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment defines torture in Article 1 as ‘any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from them information or a confession, punishing them for an act they have committed or suspected of having committing, or intimidating them for any reason based on discrimination…It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions’ [27]. It can be seen that there is a legal exception outlined in Article 1. Not only is the death penalty legal in many jurisdictions globally, it is also permitted under international law, namely the ICCPR.
These arguments mean that the death penalty may not be considered torture under current international law. However, definitions and legislation can change. Further, based on the points outlined above, there is nothing stopping the death penalty from being declared as 'cruel, inhuman, or degrading treatment or punishment' as per Article 5 of the UN Charter of Human Rights [28].
Conclusion
Therefore, while controversial whether the death penalty is considered torture under current international law, it seems clear that each aspect of the death penalty contains some element of tortuous or inhuman punishment or treatment.
There has been an irrefutable and steady move away from the death penalty over the past decades. Since 1976, more than 85 nations have abolished the death penalty for all crimes [29]. Amnesty International’s most recent statistics from the end of 2021 stated that: 144 countries had abolished the death penalty in law or practise; 28 countries have effectively abolished the death penalty with no executions in the last 10 years; and 55 countries retain the death penalty for ordinary crimes [30].
As Canadian academic, William Schabas, expresses, “If you were to connect someone to electrodes and put jolts of electricity through them to get a confession, that would be torture and a violation of article 7 [of the International Covenant on Civil and Political Rights], unless you turned up the current enough to kill them, which would be okay. That is the paradox of dealing with the death penalty”[31].
Monique Westcott is a third year student studying Law and Global Studies, specialising in International Relations.
She is a member of The Reasonable Observer subcommittee, collating articles for the Monash legal community.
Monique has a passion for international human rights law, particularly the topics of First Nations justice and how all lawyers are responsible to act in accordance with sustainability and equality.