TAARUNYAM

MODEL UNITED NATIONS

17 & 18 - OCTOBER 2014, INDORE [M.P.]

Study guide for the

UNHRC: United Nations Human Rights Council

Message

Dear Delegates, The Executive Board of the United Nations Human Rights Council
welcomes each one of you to this edition of the Indore Model United Nations Conference
2014.As many of you are participating in a MUN Conference for the first time, we advise you
to go through the study guide along with links referred for further understanding of the topic.
This year, the UNHRC would be discussing a very sensitive issue. The agenda is Universal
moratorium on death penalty . We hope that the committee will rise up to its legitimate
expectations of providing solutions to the abovementioned issue. We look forward to a
healthy and a substantive debate which will eventually help us to come up with a path
breaking resolution. Looking forward to two days of intense Debate, Discussion and
Deliberation.

Best Wishes
Mr.Abhinav, chairperson
Mr Mayank Mehta, Vicechair
Ms Samiksha Gupta, Rappoteur

TABLE OF CONTENTS

1.Introduction
a. What is Death Penalty?
b. What is Global Moratorium?
2.Case studies
a. People's republic of china
b. Kingdom of saudi arabia
c.DPRK
d. USA
3.Prominent countries indulging in death penalty

4. International law and capital punishment

5. Other prevelant sub-issues
6. Debate

INTRODUCTION
WHAT IS DEATH PENALTY?
Capital punishment or the death penalty is a legal process whereby a person is put to death by
the state as a punishment for crime. The term 'capital punishment' is derived from the Latin
caput, meaning 'head'. It originally referred to death by decapitation, but now applies to state
sanctioned death penalties. Crimes that can result in a death penalty are known as capital
crimes or capital offences.
The continuity of Death Penalty as a means of punishment is a matter of debate. The 2012
Report of Amnesty International classifies the countries into the following categories:
Abolitionist for all crimes (97), Abolitionist for ordinary crimes only (8), Abolitionist in
practice (35), Total abolitionist in law or practice (140) and Retentionist (58)

WHAT IS GLOBAL MORATORIUM?

The UN Global Moratorium was presented in the United Nations General Assembly through
Resolution 62/149 (2007) , calling for general suspension (not abolition) of capital
punishment throughout the world. It calls on States that maintain the death penalty to
establish a moratorium on the use of the death penalty, and to restrict the number of offences
which it punishes and to respect the rights of those on death row. It also calls on States that
have abolished the death penalty not to reintroduce it. Although not legally binding, the
adoption of resolution 62/149 carries considerable moral and political weight. The resolution
was reaffirmed by the General Assembly in 2008, 2010 and 2012.

The United Nations General Assembly adopted resolution 62/149 on 18 December 2007,
calling for a worldwide moratorium on executions. Resolution 62/149 expresses deep concern
about the application of the death penalty. It calls upon states that still maintain it to, inter
alia, respect international safeguards guaranteeing the rights of those facing the death penalty,
to reduce the number of offences for which the death penalty may be imposed and to
establish a moratorium on executions with the view to abolishing the death penalty. The
resolution was adopted by a majority of 104 UN member states in favour, 54 countries
against and 29 abstentions. A second UNGA resolution on the death penalty was adopted by
the UN General Assembly on 18 December 2008. It reaffirms the content of the 2007
resolution and welcome the report of the UN Secretary General on the implementation of the
2007 UNGA resolution 62/149. It also requests that the UN General Assembly will consider
the matter of the death penalty at its sixty-fifth session in 2010. The support to second
resolution increased, as 106 UN members states voted in favour, 46 against and 34 abstained.

On 21 December 2010, it adopted a third resolution on a moratorium (A/65/206). This new

resolution, which was approved by a broader margin of support at 109 votes in favour and 41
against, with 35 abstentions, renews the call to States that still maintain the death penalty to
progressively restrict its use, to reduce the number of offences for which it may be imposed,
and to establish a moratorium on execution with a view to abolishing the death penalty. States
which have abolished the death penalty are called upon not to reintroduce it.
United Nations General Assembly adopted resolution 67/176 in December 2012 which called
for a moratorium on the death penalty. It was the fourth such text adopted by the UN since
2007. By its terms, the UN General Assembly called on Member States to progressively
restrict the death penaltys use and not impose capital punishment for offences committed by
persons below 18 years of age and pregnant women. States were also called on to the number
of offences for which the death might be imposed. The resolution was adopted with a record
vote of 111 states in favour to 41 against, with 34 abstentions.
There have been a number of developments in the use of the death penalty since the adoption
of resolution 62/149 by the General Assembly on 18 December 2007. The Secretary General
submitted three reports (A/63/293, A/765/280 and A/67/226) to the General Assembly on the
implementation of its resolutions on moratorium on the use of the death penalty. 1 These
reports confirmed the global trend towards abolition of the death penalty, the important role
played by moratoriums in those States that seek to abolish it and possibilities for further work
on the issue.
The Secretary Generals Report on the Moratorium on the use of Death Penalty (dated 3rd
August 2012) highlights:
67. Since the adoption of resolution 65/206 by the General Assembly, there have been
significant developments towards the universal abolition of the death penalty. Currently,
more than two thirds of States Members of the United Nations have either abolished the death
penalty or do not practice it. States which have taken a position in favour of abolition of the
death penalty represent different legal systems, traditions, cultures and religious backgrounds.
Some Member States which opposed the abolition of the death penalty in the recent past have
moved to abolishing it or have imposed a moratorium.

CASE STUDIES
Following are few cases studies of countries where capital punishment is legal under the
domestic law. These are merely an insight into domestic laws of a few countries in different
regions and their implementation. At no point of time these studies should be considered
exhaustive in nature and the information below doesnt represent the view of the executive
board. These are merely mentioned for better understanding of the agenda and the list of
countries and cases and domestic laws pertaining to death penalty, which can be discussed in
the council, is not limited to those mentioned below.

1. Peoples Republic of China (PRC)

Capital punishment in the People's Republic of China is usually administered to offenders of
serious and violent crimes, such as aggravated murder, but China retains in law a number of
non-violent capital offenses such as drug trafficking. Many believe that The People's
Republic of China executes the highest number of people annually. Though there are other
countries (such as Iran or Singapore) which have higher per capita execution rates. PRC
authorities have recently been pursuing measures to reduce the official number of crimes
punishable by death, and limit how often the death penalty is officially utilized. In 2011, the
National People's Congress Standing Committee adopted an amendment to reduce the
number of capital crimes from 68 to 55. Later the same year, the Supreme People's Court
ordered lower courts to suspend death sentences for two years and to "ensure that it only
applies to a very small minority of criminals committing extremely serious crimes. Many
facts/statistics regarding number of executions per year etc. are considered state secrets by the
government and it releases its own version of statistics whenever it deems necessary. Various
independent international organizations however have reported their version of statistics and
cases on regular basis.
Example of Execution:
a. China in 2013 executed the 35-year-old Filipina drug courier who was caught carrying at
least six kilos of heroin in China in January 2011. The Filipina was caught with 6.198 kilos of
heroin in her luggage at the Hangzhou International Airport on January 25, 2011. At that
time, she was traveling from Dubai in the United Arab Emirates with her 27-year-old male
cousin who was also caught carrying 6.171 kilos of heroin. Chinas Supreme Peoples Court
also meted the death penalty on the cousin but with a two-year reprieve, meaning it can be
reduced to life imprisonment if he displays good behavior while in detention. Unlike the
cousin, the Pinay was found to be a repeat drug trafficker, hence the more severe punishment.
In China, possession of at least 50 grams of illegal drugs is enough to warrant a death penalty
usually done via lethal injection.

2. Kingdom of Saudi Arabia

The use of capital punishment in Saudi Arabia is based on Sharia (or Islamic law).
Foreigners are not exempted. Unlike executions in most other countries that have not
abolished the death penalty, Saudi Arabia also performs public executions through various
methods such as beheading, public and crucifixion. Saudi Arabias laws allow death penalty
for many crimes like, Adultery, Apostasy, Blasphemy, Fornications, Drug smuggling,
Homosexuality, Terrorism, Witchcraft, Sexual Misconduct etc. The laws in the Kingdom of

Saudi Arabia are not strictly codified and its implementation, in either a lenient or severe
manner, depends mostly on religious Sunni judges and scholars, as well as royal decrees.
Examples of executions:
a. Mohammed Rashad Hussain, was a Yemeni man who robbed, raped and killed a Pakistani
male migrant worker in Saudi Arabia. A religious court ordered his execution and crucifixion
in early 2013. The court investigated and then convicted Hussein for multiple crimes,
including banditry, theft, sodomy and murder, according to Sharia law.
b. In 2009, the Saudi Gazette reported that "An Abha court has sentenced the leader of an
armed gang to death and three-day crucifixion (public displaying of the beheaded body) and
six other gang members to beheading for their role in jewelry store robberies in Asir." Two
others from the 23-strong group were given 15 years in prison, six received 10 years, and one
was given a seven-year prison term. All the sentences included whippings of between 1,000
and 1,300 lashes. The verdicts further included one 15 month prison term and one year
sentences for six persons.

3. North Korea
Korea (DPRK)

or

Democratic

Peoples

Republic

of

Death Penalty is a legal form of punishment in North Korea and is used for many offences,
such as grand theft, murder, rape, drug smuggling, treason, espionage, political dissidence,
defection, piracy, consumption of media not approved by the government, and proselytizing
religious ideals that contradict practiced Juche ideology. It must be noted that due to
restricted press/media and flow of information, current knowledge about the state practice
depends heavily on the accounts of defectors and independent organizations.
Example of execution:
a. On October 5th, 2007 a 74 year old stone-cutting factory manager in Suncheon, South
Pyongan was publicly executed by a firing squad before 150,000 spectators, (a South Korean
aid group reported) at a stadium in Suncheon. As for his crime, rooted in history dating back
to the Korean War, he was found guilty of fabricating his late fathers credentials in order to
conceal the fact that his father worked as a public security general in the years preceding the
war under the interim nationalist government. In this capacity, his father worked to suppress
leftist uprisings and would have been considered an enemy of the state in what is now
Communist North Korea.

4. United States of America (USA)

Death penalty in the United States is limited under the Eighth Amendment to the United
States Constitution, and, in practice, is used exclusively for aggravated murders committed
by mentally competent adults. However since 1994 the death penalty can be used against
people who sell illegal narcotics and those accused of treason. The methods of execution and
the crimes subject to the penalty also vary by state to state in the USA, and have changed
over time. The most common method since 1976 has been lethal injection. United States
Supreme Court has placed two major restrictions on the use of the death penalty.
First, the supreme court case of Atkins v. Virginia, decided June 20, 2002, held that
executions of mentally retarded criminals are "cruel and unusual punishments" prohibited by
the Eighth Amendment. Generally, a person with an IQ below 70 is considered to be mentally

retarded. Prior to this decision, between 1984 and 2002 forty-four mentally retarded inmates
were executed.
Secondly, in 2005 the Supreme Court's decision in Roper v. Simmons, 543 U.S.551 (2005),
abolished executions for persons under the age of 18 at the time of the crime.
Gleason was already serving life in prison for a 2007 murder when he killed his cellmate in
2009. He himself demanded execution from the authorities by the method of electrocution.
He earlier also vowed to continue killing if he wasn't executed. When the system wasn't
moving fast enough, he strangled another inmate in 2010 and warned that the body count
would rise if they didn't heed his warnings. Some even argued during court proceedings that
he was mentally instable. He was then eventually executed after an order from the court.

ISLAM: A DIFFERENT LOOK AT DEATH PENALTY

Islam within the scope of religion has always accepted capital punishment as a justifiable
measure to serve punishments to those who deserved the same. The Quaran, in a 1983
translation by M.H. Shakir contains two references to death penalty:
"[5.32]...whoever slays a soul, unless it be for manslaughter or for mischief in the land, it is
as though he slew all men; and whoever keeps it alive, it is as though he kept alive all men;
and certainly Our apostles came to them with clear arguments, but even after that many of
them certainly act extravagantly in the land. [6.151]...do not kill the soul which Allah has
forbidden except for the requirements of justice; this He has enjoined you with that you may
understand."
Basically, the last excerpt means that even though murder is a sin, it is permissible to take life
for justice and as a method of punishment. Muslims who believe that Islam is correct in its
usage of Capital Punishment justify it by stating it helps promote justice. Sharia not only
applies to those who are muslim but the code is also known to be geocentric i.e. it is
applicable to the geographical boundary where the crime was committed, irrespective of the
religion and nationality of the person committing the crime.

Methods used in Islam to carry out these punishments include and primarily used are firing
squads, beheading. Some countries also apply public execution as a method to heighten the
element of deterrence. Under Sharia, the death penalty is appropriate for two groups of crime
(a) Intentional Murder here the victims family is given an option to chose if they wish for
death penalty and such crimes also include blood money as repentance; (b)Fasad filardhwhich if translate reads spreading mischief in the land this term is usually open
ended and open to interpretation but mostly includes (i) Treason, (ii) Apostasy, (iii)
Terrorism, (iv) Piracy, (v) Adultery, (vi) Homosexual Activities and (vii) Rape.

PROMINENT COUNTRIES INDULDGING IN DEATH PENALTY

Currently around 150 of the 193 Member States of the United Nations have abolished the
death penalty or introduced a moratorium, either in law or in practice. Since General
Assembly resolution 62/149 in December 2007, Argentina, Burundi, Gabon, Latvia,
Uzbekistan and Togo have abolished the death penalty for all crimes. In the United States of
America, the States of New Jersey, New Mexico, Illinois and Connecticut have abolished the
death penalty and the State of Oregon has introduced a moratorium. The Dominican
Republic, which prohibited the death penalty in 1924, adopted a new Constitution in January
2010 which guarantees the right to life and reconfirms the prohibition of the death penalty.
Similarly, Djibouti had already abolished the death penalty in 1995, but codified this in its
Constitution in 2010. In Australia, the Crimes Legislation Amendment (Torture Prohibition
and Death Penalty Abolition) Act 2010 entered into effect on 14 April 2010. It amends the
Death Penalty Abolition Act 1973 and extends the application of the current prohibition on
the death penalty to state laws. In July 2011, Suriname informed that the recently revised
Penal Code contained no reference to capital punishment.
A number of States are also in the process of abolishing or considering abolishing the death
penalty. Legislative amendments to abolish the death penalty are currently pending in
parliament in Burkina Faso, Bosnia and Herzegovina, Guatemala, Lebanon, Mali and the
Russian Federation. Abolition of the death penalty was also discussed as part of constitutional
review processes in some States, including Ghana, Sierra Leone, Zambia, Zimbabwe,
Tanzania, Trinidad and Tobago and Tunisia. Since December 2007, Argentina, Benin, Brazil,
Chile, Honduras, Kyrgyzstan, Mongolia, Nicaragua and Rwanda have completed the
ratification (or accession) of the Second Optional Protocol to the International Covenant on
Civil and political rights Currently, there are 75 State parties to the Second Optional Protocol.
Some States stopped applying the death penalty for certain crimes. For instance, in July 2009,
Kazakhstan adopted a new law reducing the number of provisions that imposed the death
penalty. In April 2011, the Parliament of Gambia abolished the death penalty for drug
offences. In February 2011, China passed a law removing the death penalty for thirteen nonviolent economic crimes. Furthermore, in March 2012, China amended its Criminal
Procedure Law to include new procedures enhancing access to legal aid, requiring the
recording of interrogations, introducing mandatory appellate hearings and a more rigorous
review process in capital cases.

ISLAMIC REPUBLIC OF IRAN

Under the Islamic Penal Code (IPC) of 1991, punishments are divided into five types. They
are: hodood, qesas, diyeh, tazirat and deterrent punishments.

 Hodoodare punishments whose type and scope have been determined by the Islamic sharia
and cannot be commuted or pardoned.
Qesas is a retributive eye-for-eye punishment meted out for a range of offences.
Diyeh (referred to as blood money) is financial compensation as determined by the Islamic
sharia and paid to the victim or his/her survivors.
Taziratare discretionary punishments that have not been determined by the Islamic sharia
and judges have the power to decide them. They may include imprisonment, lashing, fine etc.
Deterrent punishments are punishments determined by the state, e.g. imprisonment, fine,
closure of business, deprivation from social rights, exile and other punishments.
The death penalty is meted out mostly under the hodood section, and the qesas section in the
case of murder, as well as once under the tazirat section for cursing the prophet. However,
the Iranian legal system distinguishes also between punishments considered to be the sole
right of Allah and those considered to be the right of the people. The former have a
public aspect and withdrawal of complaint shall not have any effect on them, e.g.
punishment for fornication. An example of the right of people is qesas or retributive
punishment. Under the law, the Supreme Leader may grant amnesty if a crime violated the
right of Allah in cases that do not fall under hodood punishments, but he cannot grant
amnesty if the right of people has been violated.
Under Iran's Code of Criminal Procedures, defence lawyers are not permitted to fully
represent their clients until formal charges have been made, a process which may take
months. As a consequence, detainees are sometimes held for months in incommunicado
detention, that is, without access to their lawyers and relatives.
Ahmed Shaheed, the United Nations Special Rapporteur on the Situation of Human Rights in
Iran, in his report to the General Assemblys Third Committee, identified denial of access to
legal counsel and medical treatment, and widespread use of secret and public executions, as
issues of concern. There were also reports of capital punishment in juvenile cases, and the use
of the death penalty for cases that do not meet the level of serious crimes by international
standards. Mr. Shaheed claimed that In some cases, elements of Irans penal code and legal
practices amount to contravention of those international laws it acceded to,
The death penalty is one of the main tools used by Iranian authorities to allegedly fight
increased drug trafficking throughout Iran. Iranian officials often use War on drugtrafficking as an excuse to justify the high number of death penalty cases in the country.
Irans fight against drug trafficking is partly funded through United Nations Office on Drug
and Crimes (UNODC) and several European countries are contributors. Every year,
thousands of people are arrested by the Iranian authorities for drug related charges and
several hundreds of them are executed. Iranian authorities admitted on several occasions that
most of those executed are people who turned to drug trafficking out of poverty and are
involved in selling drugs on a smaller scale. According to Iranian criminal laws, possessing
30 grams of heroin, morphine, cocaine, LSD, methamphetamine, or similar drugs is
punishable by death.

According to the 2012 Report by Amnesty International, even though the number of
executions in the USA remained the same as in 2011 (43), only nine states carried out
executions in 2012- compared to 13 in 2011. The total number of new death sentences
imposed (77) was the second lowest since the US Supreme Court approved revised capital
punishment laws in 1976. In April 2012, Connecticut became the 17th abolitionist state;
while a ballot initiative to abolish the death penalty narrowly failed in California. Threequarters of all executions in the USA occurred in only four states: Arizona, Mississippi,
Oklahoma and Texas. All executions were carried out by lethal injection with pentobarbital, a
substance recently introduced into execution procedures due to shortages in the supply of
drugs previously used to kill death row prisoners. Legislative bills to abolish the death
penalty were prepared in Colorado, Maryland and New Hampshire.
PEOPLES REPUBLIC OF CHINA
According to Amnesty International- China, in 2012, continued to account for the majority of
the world's executions, but the lack of transparency surrounding the use of the death penalty
in the country made it, once again, impossible to confirm figures that would adequately
represent the reality of capital punishment in the country. Death sentences continued to be
imposed after unfair trials and for offences, such as drug-trafficking or financial crimes that
did not meet the threshold of the 'most serious crimes', in line with Article 6 of the ICCPR.
No procedures for death row prisoners to seek pardon or commutation of their sentence were
established under national legislation.
Certain amendments to the Criminal Procedure Law were approved by the National People's
Congress on 14 March (entering into force on 1 January 2013). These would allow the
Supreme People's Court to amend death sentences in all cases. The amendments would make
it mandatory to record or videotape interrogations of suspects potentially facing the death
penalty of life imprisonment. They would require the Courts, prosecutors and the police to
notify legal aid offices to assign a defence lawyer to all criminal suspects and defendants who
face death sentences and who have not yet appointed legal counsel. Legal scholars within
China have called for a greater clarification to establish that legally aided defence is available
at all stages. They have also asked for a clearer delineation of the role and responsibility of
defence lawyers in the appeal and the final review process.

SAUDI ARABIA
Saudi Arabia is one of the leading countries with use of the capital punishment and number of
executions worldwide. The death penalty can be imposed for a wide range of offences
including murder, rape, false prophecy, armed robbery, repeated drug use, apostasy, adultery,
witchcraft and sorcery and can be carried out by beheading with a sword, or more rarely by
firing squad, and sometimes by stoning. Executioners from Saudi Arabia have given
interviews to Media channels, in which they have explicitly described the inhumane conduct
of Capital punishments in the country.
YEMEN
Yemens criminal code permits the death penalty for a wide variety of offences not
considered among the most serious as required by international standards. Some of the
offences for which Capital Punishment is awarded are: robbery, prostitution, adultery, and

homosexuality, in addition to various broadly worded crimes against state security.

Executions may be carried out by beheading, firing squad, crucifixion or stoning to death.
Yemeni law prohibits executions of persons under the age of 18, yet in February 2007,
Yemen executed Adil Muhammad Saif al-Ma'amari for a crime allegedly committed when he
was 16. In 2011, the Yemeni authorities sentenced to death Muhammad Tahir ThabitSamum
for a murder he was accused of committing when he was still a child. Yemen lacks adequate
mechanisms to determine the age of defendants who do not have birth certificates. The
government has stated that no child has ever been executed. However, according to UNICEF,
14 children were executed between 2006 and 2010, 11 children were on death row as at
January 2011, and a further 84 children were at risk of being sentenced to death. The
Chairperson of the UN Committee on the Rights of the Child issued a statement in 2012,
condemning the alleged violation of the Convention on the Rights of the Child, by the
Government of Yemen in dealing with cases of Capital Punishment.
In its examination under the Universal Periodic Review process in 2009, Yemen did not
accept recommendations to abolish corporal punishment or the death penalty or ratify the
Second Optional Protocol to the ICCPR. The government stated that child executions do not
exist and have no place in legislation or the judicial system, although it supported
recommendations to remove juveniles from death row. It also supported recommendations to
raise the legal age of criminal responsibility, develop alternative sentences for juvenile
offenders, and ensure that prison for offenders under 18 is used only as a last resort.
IRAQ
The death penalty was suspended by the US when it took control of Iraq 2003. The nation's
new government, however, reinstated it two years later, stating that the death penalty will be
a deterrent to criminals in Iraq. It can be imposed in Iraq for around 48 crimes, including a
number of non-fatal crimes such as under certain circumstances damage to public
property.
According to the United Nations Human Rights Office (OHCHR), 34 individuals, including
two women, were executed on 19 January 2012 following their conviction for various crimes.
OHCHR condemned the execution of 34 individuals on a single day and called upon the
Government to impose a moratorium on the exercise of Death Penalty.

International Law and Capital Punishment

Introduction
Capital punishment or death penalty is not yet prohibited under any universally-binding
international law. However, there are a number of instruments in force with very few states as
parties that do abolish capital punishment.
Largely the issue of the capital punishment or death penalty is associated with two
fundamental human rights norms:
1. The right to life.
2. The protection against cruel, inhuman, and degrading punishments.
It must be noted that from a historical point of view, neither of these norms could be
considered to abolish death penalty under International Law. Yet a faction of the international
community now argues that in their more modem formulation, both of these rights have
served to restrict and in some cases to prohibit the death penalty.
1. The Right to Life
In several instruments, the death penalty is expresses as a limitation to the right to life.
However, it is also argued that death penalty in-itself constitutes a breach of this right. Major
international instruments granting right to life are discussed below.
a. Universal Dec laration of Human Rights (UDHR) proclaims in article 3 that "Everyone has
the right to life, liberty and security of person." It must be noted that the UDHR is not legally
binding on states.
As such, the UDHR makes no mention of the death penalty but it also does not explicitly
refer to the death penalty as an exception to the right to life.
b. International Covenant on Civil and Political Rights (ICCPR) is another instrument which
deals with the question of death penalty, mainly under Article 6. Art. 6 of the covenant
recognize that every human being has an inherent right to life however it also includes the
death penalty as an exception to this right. But it further lists restrictions on its
implementation. For instance it states that the death penalty may only be imposed for the
"most serious crimes," it cannot be pronounced unless rigorous judicial processes are
respected, and it may not be applied to pregnant women or to individuals for crimes
committed while under the age of eighteen.
Many now also argue that in addition to these limitations, other customary limits are
emerging, including (but not limited to) trends towards the abolition of executing the
mentally ill and mothers with dependent infants. However, these are subject to debate and
further discussion.
c. Second Optional Protocol to the ICCPR entirely aims at abolishing death penalty. It
proclaims in its preamble that

all measures to abolish the death penalty should be considered as progress in the enjoyment
of the right to life. It however provides an exception to states in Article 2 by which a state
may make a reservation at the time of ratification or accession to apply death penalty
pursuant to a conviction for a most serious crime of military nature committed during war
time.
As the name suggests, the protocol is optional in nature hence a state does not have any
obligation to ratify it. Moreover, only a few states have ratified or even signed the protocol.
d. The European Convention of Human Rights (European Convention), American
Convention on Human Rights (American Convention), African Charter of Human and
Peoples' Rights (African Charter) and Arab Charter of Human Rights are some other regional
instruments which deal with the question of right to life and its application. Also refer to the
Convention on the Rights of the Child.

2. The protection against cruel, inhuman, and degrading punishments

The assertion that the death penalty constitutes torture or cruel, inhuman or degrading
treatment is gaining ground in contemporary discussions. Many questions are raised, whether
human rights breaches occur, a) in the period following sentencing and before execution, b)
in the method of execution or c) in the loss of life itself or not.
a. A faction of international community now argues that execution is similar to torture, as it
constitutes an extreme mental and physical impact on a person already under the control of
the government.
Under Article 1 of the Convention Against Torture (CAT) torture is defined as any act by
which severe pain or suffering, whether physical or mental, is intentionally inflicted on a
person for such purposes aspunishing him for an act he has committed, however it
specifically excludes pain or suffering arising only from, inherent in or incidental to lawful
sanctions, thereby not prohibiting the death penalty where applied in accordance with the
law. Article 5 of the UDHR further proclaims that No one shall be subjected to torture or to
cruel, inhuman or degrading treatment or punishment. The scope of this principle is
debatable.
b. Following case might help in understanding this notion with a different dimension:
In Soering v United Kingdom, The European Court of Human Rights found that the death
row phenomenon in the United States constituted cruel, inhuman or degrading treatment.
The Soeringcase involved the threat of extradition to the United States from the United
Kingdom of an individual charged with murder and therefore subject to execution by lethal
injection in the Commonwealth of Virginia. It must be noted that it was not the death penalty
itself that the European Court of Human Rights found offensive to the European Convention,
but rather the "death row phenomenon," or the years-long wait for the scaffold under
gruesome conditions, both physical and psychological. The "death row phenomenon" has
been one of the most vexing issues to confront international human rights adjudicative
bodies, and some of them, such as the European Court, have been quick to condemn it, while
others, such as The Human Rights Committee, have taken the contrary view. The Human
Rights Committee has held that delay in and of itself in implementation of the death penalty
following sentence cannot be termed cruel, inhuman, and degrading treatment or punishment.
c. In other instances the methods of executions themselves have also been questioned many a
times. For example, the Human Rights Committee has deemed the use of the gas chamber to
constitute cruel, inhuman and degrading treatment.

Some of the widely used methods such as public executions, stoning to death, lethal
injections, firing squads etc. have also been part of many discussions on death penalty.
It must be noted that the distinction between cruel, inhuman and degrading punishments
&death penalty along with methods of execution is very blurred under International Law.
There are also a plethora of General Assembly, ECOSOC and other UN resolutions and draft
resolutions which can be referred, to understand the issue of death penalty in conjuncture
with international law.
For example,
1. UNITED NATIONS, GENERAL ASSEMBLY, SIXTH UNITED NATIONS
CONGRESS ON THE PREVENTION OF CRIME AND THE TREATMENT OF
OFFENDERS, DRAFT RESOLUTION Submitted BY AUSTRIA, ECUADOR, THE
FEDERAL REPUBLIC OF GERMANY AND SWEDEN, at 58-60, U.N. Doc.
A/CONF.87/14/Rev.1 (1980).
2. The Safeguards Guaranteeing Protection of the Rights of those facing the Death Penalty
drafted by the Committee on Crime Prevention and Control (the Commission) at its March
1984 session. Later adopted by the ECOSOC.
3. GA Resolution 62/149, On moratorium on the death penalty

Other prevalent sub-issues which a delegate can focus upon include:

1. Emerging interpretable terms and their application.
2. What constitutes Fair trial and Most heinous crimes and hence their relation with
existing state practices and domestic laws.

3.Domestic laws regarding death penalty during wartime and its relation with the
International Criminal Law and International Humanitarian Law (refer, the four Geneva
Convention on laws of armed conflict).
4. Status of death penalty under International Criminal Law.
(For reference see, Rome statute, Nuremberg and Tokyo trials post World War II, UNSC
sanctioned statutes of ad-hoc Yugoslavia and Rwanda International Tribunals etc.)
[Brief note: Many Nazis and other war criminals were sentenced to death during the
Nuremberg and Tokyo trials post World War II. However, The statutes of the two ad hoc
tribunals for Yugoslavia and Rwanda contain brief provisions dealing with sentencing,
proposing essentially that sentences be limited to imprisonment (thereby tacitly excluding the
death penalty, as well as corporal punishment, imprisonment with hard labor, and fines) and
that they be established while taking into account the "general practice" of the criminal courts
in the former Yugoslavia or Rwanda.']
3. United Nations work towards establishing norms regarding death penalty, including
complete abolishment and its relation with existing International Law.

DEBATE
Capital Punishment has always been a matter of grave concern when it has come to the
debate regarding the moral and legal aspect of it. When looked closely it is noticed that both
having ample empirical evidences to show both against and for capital punishment makes the
understanding of the topic even more complex. However, one must understand that the legal
aspect is positive in its nature and works within the hard lines of facts and figures;
interpretation of the same however isnt quite the same and like the moral understanding of
the concept falls within the jurisdiction of normative understanding, i.e. relies heavily on
opinions and values. Laws being subject to interpretation have always been very dicey about
what it means and in which particular case. This becomes even trickier when the laws and its
implementation can directly lead a decision which cannot be reversed or corrected if done so
wrongly.
The first set of argument works around the concept of correctiveness. Many are of the idea
that one learns from their mistakes, especially when a sense of responsibility and
accountability is attached upon the diagnosis of the mistake. That is to say that when a child
emulates what is not expected of them due their limited knowledge, say breaking a glass of
water, the parent in that case puts the child under detention to help them understand the
consequence and thus help them to rectify their behaviour. This of course is an extremely
simplified example in a more practical example, you can see how a thief under most legal
system is put behind the bars for a stipulated period of time for the felony; this however is
judged within the scope of the applicable legal system and as many accommodate the value
judgement as to why the crime was committed. The idea behind this theory is that one will
not like to repeat their offence once they run their course through the corrective measures due
the severity and capital punishment takes that right away from them.
The alternative to this is however that, since a murderer knows and in all probability
understands the forthcoming consequences of his or her actions, why shouldnt the principle
of an eye for an eye be used? Many studies have shown that the Death Penalty does in fact
act as a deterrence to various following crimes that could have been committed and thus save
innocent lives which would have been taken if the principle of deterrence wasnt applicable

here. Thus in principle, if the criminal knows that the judiciary system would not fail to put
his life at stake if the severity of the crime is established then it would seem more draconian
to him hence working as a deterrent factor and in affect reducing the crime.
The next set of argument forms around the concept of standardization. The two fold structure
states that, no same establishment has been used to guarantee two crimes having more or less
the same methodology in terms of execution being punished with the same adjudication. The
other fold is in terms that to state that the act of committing murder was wrong and unjust and
a violation of right to life cannot be adjudicated aptly by sending the murderer on death row
by violating his or her right to life. On the other hand, it can also be state by taking the
example of Theodore Robert Bundy or Ted Bundy, the infamous serial killer and rapist who
lived in the United States of America the 1970s. When prosecuted for his crimes he suggested
and pleaded innocence stating his actions were a direct consequence of his exposure to
pornography and that he would have been a better person if he was not exposed to the same.
When that plea bargain did not work into action, he tried for life sentence without parole.
This motion yet again was denied and later he was executed. This goes to show that he would
have at any time chosen life sentence over death penalty and showed no care for it and that it
establishes the premise that death penalty does act as an effective quid pro quo structure for
such heinous crimes.
The third argument is in regards to the cruelty involved. Under the ambit of international law
and various documents that form part of it condemns action which entails and can be
considered as cruel, inhumane or degrading treatment including torture. This entire concept
being very subjective in nature it has been argued that, putting a person on death row and
making them wait till their execution day is in itself a form of psychological torture.
Furthermore, methods acknowledged under law include Firing Squads, Lethal Injections,
Electrocution, Hanging, and Gassing. It is further argued that these methods do not guarantee
a pain and suffering free methods of execution as seen in the case of Angel Nieves Diaz who
took 34 minutes before the injection worked its effects.
Alternatively, it has been argued that the art of execution has evolved and is now to be
considered a science with its own principles and methodology and shows very little
possibility in terms of room for error. In terms of prosecution, that is something where there
is and will always be room for error, but the judicial system is to be entrusted with that duty
that they shall only and only pass an adjudication for death row once it has thoroughly ran its
inspection into the case and has established the defence to be guilty.
Under International Law there are certain documents which do govern the concept and
abolishment of death penalty and thus we will examine what they state and the interpretations
that can be made from them. The primary source of text is the Universal Declaration of
Human Rights, this however is a declaration and does not possess a treaty status thus,non
binding on the member states however applicable globally and various statutes and
convention do derive its text from the principles within this document. The second most
important text is International Covenant on Civil and Political Rights (ICCPR) and the
Second Optional Protocol to ICCPR. Convention on Rights of Child (CRC) along with
International Humanitarian Law (IHL) comprising of Geneva Convention III and IV of 1949,
Common Article 3 of Geneva Conventions of 1949 along with the Additional Protocol I and
II of Geneva Conventions of 1949 provide adequate advocation for the abolishment of death
penalty.
Under various domestic constitutions such as the Hungarian Constitution, under Article 54
states that death penalty violates inherent right to life and human dignity; Ukrainian
constitution protects the right to life under law and does not include capital punishment as

an exception to the right to life. Various other nations and regional constitutions and charters
have stated that life is of very precious value and advocate for the abolishment of any
prosecution for any crime which leads to the violation of right to life and extended right to
dignity.
The Second Optional Protocol to ICCPR demands for a total abolishment of death penalty
except for the time of war which has to be explicitly mentioned during ratification of the
treaty. Article 6(2) of ICCPR also states that death sentence can only be imposed if it is in
accordance with the law in force at the time of the commission of the crime. Article 15(1) of
the same international document states that a heavier penalty shall not be imposed than the
one that was applicable at the time of the committing of the crime. Article 6(2) also mentions
that such penalties are only applicable if the committed crime has been established to be that
of most serious nature and thus the usage of death penalty has to be restricted to as little as
possible with only exceptions to crimes which are of most serious kinds. Various jurists argue
that death penalty can and should be only applicable to crimes of international nature and that
should also again be subject to statutory interpretation post construct. However, this is only
currently under use by certain nations and is being propagated by pro-moratorium advocators
for other nations to adopt.
Overall under International Law, Capital Punishment is looked majorly as a flawed concept
which breaches the right to life and thus various documents provide safeguards against the
same and propagate the moratorium and further the abolishment. However, within the scope
of morality we see that both for and against the abolishment as a debate sees light of the day
with very strong normative argumentation to support the same. Within the scope of legality,
under regional and domestic law, such as the applicability of Sharia or the Islamic Law yet
again permits the application of capital punishment. Various nations interpret the source
differently and accordingly use the penalty to their understanding and jurisdiction.