By Michael Woldeyes and Bereket Mulatu
On 21 December 2023, Human Rights Watch (HRW) wrote an article urging the government of The Maldives to drop its plans to overturn its seven decades of de facto abolitionist status. The then Homeland Security Minister of The Maldives revealed that the government had a policy to implement the death penalty. A year later, on 22 October 2024, the same Minister announced that: “efforts are underway to implement capital punishment as soon as possible”.
The Maldives’ move does not only affect the global movement towards the abolition of capital punishment. It also puts a question mark on the global status of de facto abolitionist States (hereafter DAS). But what is meant by de facto abolition of the death penalty?
The meaning of a de facto abolitionist State differs based on the established definition to which one ascribes to. For the purpose of this blog, however, we apply the definition adopted by the United Nations (hereafter UN) whereby de facto abolitionist States are those “States and territories in which the death penalty remains lawful and death sentences may still be pronounced but executions have not taken place for 10 years”. The UN also considers States that carried out executions within the previous 10 years but have made an international commitment through the establishment of an official moratorium as de facto abolitionists. As a result, the full focus of this blog is on those States that retain the death penalty in law, prescribe it for certain crimes, yet refrain from carrying out executions.
Based on the UN’s DAS definition, 49 States were considered to have de facto abolitionist status in 2018. The UN encourages additional countries to adopt de facto abolition hoping it will lead to full abolition. However, actions such as those of Maldives put a dent on the UN’s push for de facto or de jure abolition of the punishment. But what is the place of human rights in these discussions? Most importantly, how is de facto abolitionist status to be considered under international human rights law? This blog tries to answer the last question by analyzing the prohibition on cruel, inhuman, or degrading treatment as protected under Article 7 of the International Covenant on Civil and Political Rights (hereafter ICCPR).
De facto abolition of capital punishment and the prohibition on cruel, inhuman or degrading treatment
The effect of a State’s de facto abolitionist stance, as seen through the definition of the UN, means that the prisoner who has been handed down a sentence amounting to capital punishment would be on death row until execution is carried out or the prisoner is pardoned. This ever-present shadow of execution and uncertainty perpetuates an enormous amount of mental distress and pressure on death row prisoners. Some studies indicate that death row incarceration results in fear and helplessness, which results in mental suffering. For example, a study of 37 death row prisoners in the State of Alabama, the United States, concluded that the prisoners experienced emotional emptiness. What does this mean under international human rights law?
Article 7 of the ICCPR clearly stipulates that “no one shall be subject to torture or to cruel, inhuman or degrading treatment and punishment”. According to the UN Human Rights Committee (hereafter UN HRC), the protection accorded under this provision also extends to the mental integrity of the individual. As a result, acts that cause mental suffering fall within the material scope of the provision and are prohibited. Similarly, the UN HRC’s General Comment No. 20 on Article 7 provides: “the prohibition in article 7 is complemented by the positive requirements of article 10, paragraph 1, of the Covenant, which stipulates that ‘All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person’”. Therefore, the death row phenomenon amounts to cruel, inhuman and degrading treatment since it results in a severe mental suffering which is a result of a punishment carried out by the State. This is also reflected in the judgment of the European Court of Human Rights (hereafter ECtHR) in the Soering v The United Kingdom (1989) where the ECtHR held that the risk of exposure to death row phenomenon would be inhuman because it “caused, if not actual bodily injury, at least intense physical and mental suffering" (para. 100), and also degrading because “it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance" (para. 100). In a similar manner, the HRC also found death row to be inhuman and degrading treatment in Francis v. Jamaica (1995). In this case, the Committee, focusing on the psychological impact on the individual, ruled that keeping an individual on death row for 12 years causing him mental and physical harm is cruel, inhuman, and degrading.
It must be noted that it is not the death penalty per se that amounts to cruel and inhuman treatment but rather the death row phenomenon. According to the ECtHR, the “very long period of time spent on death row in such extreme conditions, with the ever present and mounting anguish of awaiting execution of the death penalty …” (para. 111).
As already stated, the death row phenomenon arises primarily from prolonged delays in carrying out death sentences, and under circumstances, a de facto abolition of the death penalty may amount to an extended postponement of a death sentence. This is especially true for inmates in States such as The Maldives where the execution of a capital punishment is making a comeback. So, we must ask, should de facto abolition also be considered to be cruel, inhuman, and degrading?
It is very likely that de facto abolition of capital punishment may facilitate the establishment of the death row phenomenon. The actions of States such as The Maldives further strengthen this possibility since it gives prisoners across various States that are sentenced to capital punishment greater reason to doubt their government’s de facto stance. Consequently, because putting an inmate through a death row phenomenon is regarded to be a cruel, inhuman, and degrading punishment, de facto abolition, by extension, can also be seen as perpetuating cruel, inhuman, and degrading punishment. In this regard, even though de facto abolition appears to signal progress toward ending the death penalty, it may paradoxically create a situation that violates the prohibition on cruel and inhuman treatment as protected under Article 7 of the ICCPR. Therefore, while de facto abolitionist States may appear to take steps toward abandoning the death penalty, they simultaneously fail to protect individuals from psychological suffering. As a result, we strongly believe that States which are labeled de facto abolitionists may be violators of human rights.
What should be done?
De facto abolition does not seem to receive the necessary attention as a setback to the respect of human rights in the international arena; rather it appears to be praised as a positive step towards abolition. However, the experience of countries such as The Maldives demonstrates that de facto abolition does not necessarily result in the de jure abolition of the death penalty. Even when it eventually does, the transition from suspension to complete legal abolition can span several years, if not decades. For example, Kazakhstan took nearly 20 years to fully abolish the death penalty after imposing a moratorium on executions in 2003, during which courts continued to issue death sentences for exceptional crimes such as terrorism. In both cases, however, the inmate will be put through mental anguish due to the uncertainty of their future.
Therefore, first and foremost, the UN should stop encouraging de facto abolitionism as the preferred avenue towards the abolition of the death penalty. It should, instead, focus on and work towards global de jure abolition. In addition, the UN and its organs such as the HRC must educate States through their State recommendations on how their abolitionist status is perpetuating cruel, inhuman, and degrading treatment. They must also question the legality of prolonged moratoriums in light of States’ obligations under the ICCPR. In this regard, the UN Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment must establish a strong foundation for the understanding of de facto abolitionism of capital punishment as perpetuating cruel, inhuman, and degrading punishments. By taking these actions, we may achieve some progress towards a world where a cruel punishment is not tolerated, even against death row inmates.
Bio:
Michael Woldeyes is a lawyer in Ethiopia. He holds an LL.M. in international human rights law from the University of Groningen.
Bereket Mulatu is a social affairs and development consultant specializing in human rights, policy, and project evaluation. She is currently pursuing a PhD in Food Security and Development at Addis Ababa University.