Political Halley's Commet, The Death Penalty in Globalrivate
Comparative Perspectives: Case Studies of Canada, India
South Africa, Nigeria, Jamaica, Grenada
Nazi War Crimes and International Law
MUNYONZWE HAMALENGWA
Editor
For Nelson Mandela
POLITICAL HALLEY'S COMMET: THE DEATH PENALTY IN GLOBAL
COMPARATIVE PERSPECTIVE
Edited by Munyonzwe Hamalengwa
TABLE OF CONTENTS
Page
FOREWORD i
(Munyonzwe Hamalengwa)
PART ONE: INTRODUCTIONS
CHAPTER ONE: INTRODUCTION: THEORIES OF PUNISHMENT
AND THE DEATH PENALTY
(Munyonzwe Hamalengwa)
Chapter Two: THE DEATH PENALTY IN COMPARATIVE
PERSPECTIVE
(David McRobert)
PART TWO: CANADIAN PERSPECTIVES
Chapter Three:THE DEATH PENALTY: CANADIAN PERSPECTIVES
(Ontario Criminal Lawyers' Association)
Chapter Four:CAPITAL PUNISHMENT: A MODIFIED WEALTH
MAXIMIZATION APPROACH
(Professor Kenneth Avio)
PART THREE: THIRD WORLD PERSPECTIVES
Chapter Five:THE DEATH PENALTY IN INDIA
(Fali Nariman, Senior Advocate, Supreme
Court of India)
Chapter Six:The Grenad Murder Trial: No Case For Hanging
(Tony Gifford, Q.C.)
Chapter Seven:THE DEATH PENALTY IN JAMAICA
Amnesty International, London
Chapter Eight:POLITICAL CRISIS AND THE DEATH PENALTY IN
UGANDA
(Akena Adoko)
Chapter Nine:Against Capital Punishment in Nigeria
(Eluen Emeka Izeze)
TABLE OF CONTENTS (CONTINUED)
PART FOUR: WAR CRIMES AND CRIMES AGAINST HUMANITY
Chapter Ten: NAZI WAR CRIMINALS AND THE DEATH PENALTY 15
(Yossi Schwartz)
Chapter Eleven: THE DEATH PENALTY IN THE CONTEXT OF
COMMISSION OF CRIMES AGAINST HUMANITY IN
SOUTH AFRICA
(Munyonzwe Hamalengwa)
PART FIVE: THE DEATH PENALTY IN INTERNATIONAL LAW
Chapter Twelve: CONCLUSION: The Death Penalty in International Law
(Munyonzwe Hamalengwa)
FOREWORD AND ACKNOWLEDGEMENTS [Back to top of page]
The majority of the papers contained in this volume were presented at a conference held at Osgoode Hall Law School in Toronto on October 10th and 11th, 1987 to try to examine the death penalty in the world. The conference was organized by The Nelson Mandela Law Society in response to the Canadian House of Commons debate on whether to reinstate the death penalty in Canada. The motion was defeated in June 1987. The conference still went ahead because the death penalty still exists in the majority of countries and the debate could still be ignited in Canada by another government seeking votes or some other benefit.
The conference was made possible by the financial support of the Provost of York University, Professor Tom Meininger; Law Foundation of Newfoundland and the Legal and Literary Society of Osgoode Hall Law School; York University Graduate Student Association; the former Dean of York Graduate Studies, Professor David Bell and the Canadian Union of Educational Workers, Local 3. I wish to thank the above most sincerely for their assistance.
Moral and political support cannot be underestimated when organizing a conference, especially one that involves strong moral choices like the death penalty. This support was in overwhelming abundance from Farida Shaikh, a student at Osgoode Hall Law School; Professors Michael Mandel, Harry Glasbeek and Douglas Hay, all of Osgoode Hall Law School; Michael Tulloch, David McRobert, both students at Osgoode Hall Law School. My wife Lucy shared the project enthusiastically. I thank each and everyone of you most profusely.
The contributions as summarized by David McRobert in Chapter Two came from able participants. I thank them all for agreeing to participate in the conference. I further thank those who wrote papers that appear here. I thank David McRobert for writing a very informative introduction in his usual perceptive and prolific fashion. I am grateful to the Ontario Criminal Lawyers Association for agreeing to their entire publication on the death penalty to be reproduced. Mr. Earl Levy, the President gave a very stimulating paper at the conference. Charles Roach and Yola Grant summarized reports on Grenada and Jamaica respectively for which I thank them as well as the original publishers of the reports for agreeing to their reproduction. These are respectively The Committee for Human Rights in Grenada and Amnesty International. The Guardian newspaper of Lagos, Nigeria is also acknowledged for permission to have their article reproduced.
Lastly but not the least happy more years to the Nelson Mandela Law Society for conceiving and carrying through the project.
Munyonzwe Hamalengwa
August 31, 1988
CHAPTER ONE: INTRODUCTION: THEORIES OF PUNISHMENT AND THE DEATH PENALTY
by Munyonzwe Hamalengwa
[Back to top of page]
The death sentence when it is carried out, is the ultimate punishment. A person is obliterated forever by an act of state. Of the two major justifications for punishment: retribution and utilitarianism, (and the various strands of deterrence, rehabilitation, etc.) the death penalty seems to accomplish more the retributive aspect of punishment. The State inflicts the ultimate revenge against the culprit -- death. If the death penalty is justified under the deterrence aspect of utilitarianism, it achieves the final specific deterrence against the individual. Because the person is killed, he is therefore 'deterred' for eternity. It is something else if general deterrence is the one sought after. Are others deterred by the death penalty?
The following papers discuss various theories both justifying and disqualifying the death penalty as a form of punishment. The thread that runs through some of the papers is that general deterrence under which the death penalty is justified has not been achieved. In those societies where the death penalty exists, for example in some U.S. States, murder, which is the major crime that commonly attracts the death penalty, continues to be committed. In some cases the murder rate dropped after the abolishment of the death penalty. In Canada, for example, the murder rate fell from 3.09 per 100,000 in 1975 (the year before abolition) to 2.74 in 1983.1 The death penalty thus does not affect the rate of murders. In the U.S., the murder rate in death penalty states has differed little from that in other states with similar populations and social and economic conditions.2 Others have argued that even if the death penalty has no special effect in deterring others, the execution of the worst offenders is needed to protect society from the risk of their repeating their crimes. The evidence however is that among offenders released on parole, convicted murderers present one of the lowest risks of recidivism.3 The implication is that the death penalty is not the answer.
What is the answer? No answer seems to come out clearly in these papers except alternative sentences. This means prison terms are preferred rather than persons being put to death. There may be a possibility of rehabilitation. A life sentence may be the ultimate punishment since an individual is reminded every second, minute and hour of his/her life, why he/she is in prison. The person is given the opportunity to commiserate over the crime everyday. The constant realization of the wrong done may be more painful than the death sentence itself whereby the person is gone forever. There can also be minimum sentences e.g. 25 years without parole. This would be enough punishment.
It could, however, be urged that a life sentence is not the ultimate sanction since the person could escape from prison; may be paroled or forgiven; the person may turn into a sadist and not care at all about why he/she is in prison, etc. The question seems to be, should there be need for ultimate sanctions in modern society? The proponents of the death penalty say "yes." The opponents say "no."
There are many reasons for opposing the death penalty. Perhaps the most important one is that it is a very unusual, painful and inhuman form of punishment. It inflicts irreparable damage to the victim more than the victim is likely to have meted out to the person he/she killed, if this was the reason for the death sentence. Amnesty International in the report cited above describes how the person sentenced to death has a long painful struggle through various appeals to the day he/she is told that he/she will die on a certain day. The person is then segregated from the other death row inmates, he/she is shaved. The final day then comes. The pain through the years, months, weeks, days, hours and minutes leading up to this cannot be fathomed of course by anybody who has not been through the death row and reprieved at the last minute. Many death row inmates experience mental derangement in their last days. That is unusual and inhuman treatment and punishment. It is even more unusual in the sense that it is a deliberate and conscious legal policy by a government to take away a life. The death penalty is a class by itself.
There is also the question of the execution of the innocent. In a U.S. study, it was discovered that between 1900 and 1985, 349 people were wrongly convicted of offenses punishable by death.4 Twenty-three of these were executed. These are lives that cannot be brought back. In Canada, Wilbert Coffin was hanged on February 10, 1956 for three murders somebody committed in 1953. Coffin maintained his innocence to the bitter end. Many lawyers believed at the time that Coffin was innocent. Also in Canada, Donald Marshall, recently released, spent eleven years behind bars for a murder he did not commit. Convicting and occasionally hanging wrong people is one of the strongest reasons for opposing the death penalty.
In societies where the judicial system is tainted by racial prejudices, for example South Africa and the U.S., many minorities have been convicted and sentenced to death, on flimsy evidence or to satisfy public opinion. If the death penalty is abolished, the racial incidence in biased death sentences will also disappear thereby ensuring equality between races within the criminal justice system.
Lastly, maintaining the death penalty is costly both to the convict and to the State. Millions of dollars are spend to process the appeals and to ensure the existence of facilities for those on the death row. Why should resources be used in such a manner to ensure the killing of a person by the State?
Notes
1.See Study Cited in Amnesty International, United States of America: The Death Penalty (1978) p. 162.
2.Ibid.
3.Ibid at p. 168.
4.Ibid at p. 172.
CHAPTER ELEVEN: THE DEATH PENALTY IN THE CONTEXT OF [Back to top of page]
COMMISSION OF CRIMES AGAINST HUMANITY
IN SOUTH AFRICA*
by Munyonzwe Hamalengwa
The death penalty in South Africa unlike elsewhere, cannot be divorced from the general context of the commission of crimes against humanity perpetrated by the apartheid regime in South Africa. Article 1 of the International Convention on the Suppression and Punishment of the Crime of Apartheid1 (ICSPCA) stipulates that:
(1) The States Parties to the present Convention declare that apartheid is a crime against humanity and that inhuman acts resulting from the policies of apartheid and similar policies and practices of racial segregation and discrimination, as defined in article II of the Convention, are crimes violating the principles of international law, in particular the purposes and principles of the Charter of United Nations, and constituting a serious threat to international peace and security.
(2) the States Parties to the present Convention declare criminal those organizations, institutions and individuals committing the crime of apartheid.
Thus apartheid is recognized as a crime against humanity by treaty law. As is common knowledge, treaties are one of the most important sources of international law, commanding adherence not only by states parties to a particular treaty, but by the international community generally. Apartheid is a crime violating not only international law but is also a serious threat to international peace and security. The crime of apartheid as a crime against humanity is not limited to its practices
*This is part of a larger work I am pursuing entitled, War Crimes, Crimes Against Humanity and International Sanctions in Canadian Law.
in South Africa and Namibia, it extends to similar practices elsewhere as article 11 of ICSPCA makes clear:
For the purposes of the present Convention, the term "the crime of apartheid," which shall include similar policies and practices of racial segregation and discrimination as practiced in Southern Africa, shall apply to the following inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them:
(a) Denial to a member or members of a racial group or groups of the right of life and liberty of person:
(i)By murder of members of a racial group or groups;
(ii) By the infliction upon the members of a racial group or groups of serious bodily or mental harm by the infringement of their freedom or dignity, or by subjecting them to torture or to cruel, inhuman or degrading treatment or punishment;
(iii)By arbitrary arrest and illegal imprisonment of the members of a racial group or groups;
(b) Deliberate imposition on a racial group or groups of living conditions calculated to cause its or their physical destruction in whole or in part;
(c) Any legislative measures and other measures calculated to prevent a racial group or groups from participation in the political, social, economic and cultural life of the country and the deliberate creation of conditions preventing the full development of such group or groups, in particular by denying to members of a racial group or groups basic human rights and freedoms, including the right to work, the right to form organized trade unions, the right to education, the right to leave and to return to their country, the right to a nationality, the right to freedom of opinion and expression, and the right to freedom of peaceful assembly and association;
(d) Any measures, including legislative measures designed to divide the population along racial lines by the creation of separate reserves and ghettos for the members of a racial group or groups, the prohibition of mixed marriages among members of various racial groups, the expropriation of landed property belonging to a racial group or groups or to members thereof;
(e) Exploitation of the labour of the members of a racial group or groups, in particular by submitting them to forced labour;
(f) Persecution of organizations and persons, by depriving them of fundamental rights and freedoms, because they oppose apartheid.
The Apartheid Convention is broader in compass than the Nuremberg Principles. The principle of the illegality of racial discrimination, like that practiced in South Africa has increasingly been elevated in international law if not already recognized as part of jus cogens -- peremptory norm of international law which cannot be derogated from or set aside by treaty or acquiescence. Non-discrimination as a case of jus cogens, apartheid as practiced in South Africa constitutes a specific and particular case of violation of jus cogens.2 Racial Discrimination is also outlawed by treaty law, as recognized in the International Convention Against Racial Discrimination.3 Racial discrimination is thus a violation of international law. I.C.S.P.C.A. defines discrimination as practiced under apartheid as an international crime. Considering the numerous U.N. resolutions against apartheid practices in South Africa; numerous treaties similar to I.C.S.P.C.A.; various national legislations; various pronouncements in international circles; press releases, policy statements etc., apartheid can be said to be already a violation of customary international law, conventional international law as well as general principles of law recognized by the community of nations.
Apart from being an international crime on the basis of being a crime against humanity in regard to its treatment of the majority population in South Africa as defined above, apartheid according to Brahme4 is also a crime against peace. This is because of: (a) its continued colonial and illegal occupation of Namibia, which in itself is also a violation of the principle of the right to self-determination of peoples5, and, (b) its aggression and destabilization of neighbouring states. It is very possible and indeed inevitable that in the course of its occupation of Namibia and its agression against neighbouring states, apartheid also commits war crimes as defined in the Nuremberg Principles. If this is the case, then apartheid has committed and is continuing to commit all the major international crimes, namely, crimes against peace; war crimes and crimes against humanity for which the international community has universal jurisdiction to prosecute the perpetrators.
It is thus necessary to review in brief the precise manner in which apartheid commits these international crimes, particularly the crime against humanity.
Crimes of Apartheid Within South Africa
"Violation of human rights on a substantial scale have characterized the situation in South Africa for many years. Recently, there has been a further, marked escalation of political imprisonment and detention without trial, torture and political killings. The judicial death penalty continues to be used at a high rate."6 It is not necessary to go far into the history of South Africa in order to demonstrate the criminality and violence of apartheid (the laws in South Africa resemble to a large extent the laws of Nazi Germany), suffice to review the immediate period of the 1980s, with sporadic references to the period between 1948 and the 1980s.
Apartheid is not an arbitrary system of governance. It is based on laws governing all aspects of life. Of interest to us are the "security laws" that justify the arrest, detention, torture and sometimes killings of Africans. The most comprehensive law to date that has set the legal framework of repression is the Internal Security Act of 1982.7 This Act is a consolidation of all previously existing security laws, most of which it also repealed. The earlier security laws include8:
(a)The Suppression of Communism Act No. 44 of (1950);
(b)The Bantu Administration Act No. 38 of (1927);
(c)The Public Safety Act No. 3 of (1953);
(d)The Criminal Procedure Act No. 56 of (1955);
(e)The Riotous Assembly Act. No. 17 of (1956);
(f)The Unlawful Organizations Act No. 34 of (1960);
(g)The General Amendment Act No. 37 of (1963);
(h)The Terrorism Act No. 83 of (1967);
(i)The Affected Organizations Act No. 31 of (1974).
The publication of the International Defence and Aid Fund entitled Apartheid: The Facts9 has captured neatly the utilization and compass of these security laws at the hands of the South African police and army:
The widest powers derive from the so-called 'security' laws. These are aimed at people or organizations whose activities and aims the regime describes as 'furthering the aims of communism', 'terrorism', 'endangering the security of the State or the maintenance of order', 'endangering the public peace' or 'threatening essential services'. The definition of these terms is so loose and the power conferred by the laws so wide, that the regime is able to use the law to act against any form of effective opposition to the apartheid system. The limits to its capacity to use these powers are not contained in the laws, but are set only by political and practical considerations.
Under the 'security' laws, there are powers to detain people without trial; to ban people, organizations and meetings; to break up meetings: and to imprison people. By the restrictions they place on meetings, the laws licence attacks against protesters and demonstrators, which on many occasions have included the police killing people. The laws have also created conditions under which the torture of detainees has become routine.
The application of the Internal Security Act brings ominous results.10 Section 28 of the Internal Security Act for example empowers the Minister of Law and Order to order the preventive detention of any person he considers engaged in, or likely to be engaged in, "activities which endanger or are calculated to endanger the security of the State or the maintenance of law and order." Section 29 permits police to hold detainees for interrogation indefinitely, in isolation and without access to relatives or lawyers. Section 30 empowers a State Attorney-General to issue an order denying the court its usual authority to release a charged person on bail if he "considers it necessary in the interests of the security of the state or the maintenance of law and order." Section 31 empowers a state Attorney-General to authorize incommunicado detention without charge of potential state witnesses until the end of the trial at which they are expected to testify. If they refuse to testify, they may be sentenced to up to five years' imprisonment for contempt of court. If they refute in court a statement made while in security police detention on the grounds that it was made under duress, they may be charged with perjury.
In 1984 for example the above Internal Security Act sections were used to detain the following numbers of people:11
Section 28 (Preventive Detention) 28
Section 29 (Detention for interrogation) 280
Section 31 (Detention of potential witnesses) 13
Section 50 (Short term preventive detention), or no 72
legislation at all, for period of less than 48 hours. 152
It is also the sometimes end result of these indefinite and incommunicado detentions without family or lawyers' visits that incriminates apartheid as a crime against humanity. According to Amnesty International, many detainees have been tortured or severely ill-treated while detained incommunicado.12 Many studies have in fact also confirmed that opportunities for torture exist when detainees are held incommunicado anywhere in the world.13 It is not surprising that torture and ill-treatment are now outlawed by the treat law.
Not only do incommunicado detentions offer opportunities for torture in South Africa, they also lead to extra judicial killings by security police of those tortured. At greater risk of torture and death in prison are political detainees, though even mere criminals have been known to die in prison.
Indications of torture are not only revealed in numerous deaths in prison (to which I will return shortly) but also in numerous cases of detainees requiring hospitalization during or after detention due to injuries or serious mental disturbance. Dr. Wendy Orr, a district surgeon responsible for medically examining detainees and prisoners in the Port Elizabeth area, for example submitted evidence on 25th September, 1985 to the Supreme Court of widespread and regular torture and ill-treatment of detainees. Her evidence was supported by sworn statements from over 40 people, including detainees.14 The figure for the whole of South Africa would be staggering. Tortured detainees have no recourse to law as existing laws and regulations grant immunity in advance to all law enforcement officials for any actions committed "in good faith" in the exercise of their powers.
The inquests that were conducted after the deaths in prison of Steve Biko, the leader of the Black Consciousness Movement, and Neil Aggett, a white trade unionist revealed the extent of torture in South African prisons.15
The gravity and widespread use of torture in South African prisons has also been revealed more clearly by a nation-wide empirical study conducted by three professors at the Institute of Criminology of the University of Cape Town.16 One hundred and forty-four former "security legislation" detainees were interviewed. The period covered was between 1974 and 1983. Most of those detained were involved in all kinds of political work: student organizations, trade unions, community and political organizations.
Using the operational definition of torture of the United Nations Declaration on Torture, the results came as follows and I quote the whole tabulation:
Only 17% of cases claimed no form of physical torture. The most frequent form of torture (75%) was beating, which included punching, hitting, kicking, slapping as well as beating and whipping with a variety of implements and other forms of assault. The next three most frequently reported forms of physical abuse were forced standing (50%), maintaining abnormal body positions, which includes crouching, standing on toes with arms upstretched, holding chairs or other objects above the head, and holding a position as if sitting in an imaginary chair (34%), and forced gymnasium-type exercises (28%). In addition, 25% reported having been subjected to electric shock, 18% to strangulation either by hand or by means of a cloth or towel, and 14% to suspension in various forms.
Other forms of physical torture were reported by 27% of cases. Hand analysis of these other descriptions revealed the following most frequent forms of abuse: manacles, including handcuffs, legs constantly chained and chains placed around neck (15%); pulling out or burning hair or beard (5%); genital abuse (3%), and falanga, which involves beating the soles of the feet with some implement (3%). A further rage of abuses were reported by one or more cases and included: being wrapped in canvas, kept barefoot, burning matchsticks placed under nails, sand in shoes while doing exercises, being thrown into the air and allowed to fall, given salted water to drink, hands cut with knife, placed in boot of car, nose twisted, fingernails crushed by brick, petrol poured over body and set alight, breasts squeezed, held out of moving car, tied to a tree, and scrubbed on face and body with a hard brush. Even this substantial list does not entirely exhaust the range of abuses reported.17
In addition to physical torture, psychological torture is also part of the system. The findings on this aspect of torture are reported as follows:
No cases reported an entire lack of psychological abuse. Over half of the cases reported having been subjected to the following forms: false accusations (83%); solitary confinement (79%); verbal abuse (71%); threats of violence to self (64%); contradictory styles of interrogation (57%); and being given misleading information (51%).18
These figures show that almost no one is safe from torture in South African prisons. Torture is so pervasive that the system itself can be called "torturous" i.e. it is based on torture.
Gordon Winter, an ex-intelligence officer in South Africa also describes from experience some of the horrible torture methods and causes of numerous deaths in South African prisons in his book Inside BOSS, South African's Secret Police.19
Torture has resulted in may deaths in South African prisons as already stated. As of the period from 1963 to 1984, for example, sixty individuals have been recorded as having died in prison. I think this is perhaps the greatest number of deaths in prison anywhere in the world. The majority of the deaths occurred in 1969 (6); 1976 (13), and 1977 (14).
The torture and deaths of political prisoners in South Africa is only part of the story. There are many deaths caused directly by apartheid in South Africa. There are firstly official "judicial murders" whereby political prisoners are forced to confess under torture to crimes they did not commit. These "confessions" are then used to convict the victims which convictions in turn attract the death penalty. Secondly the nature of apartheid induces the subject population to commit all sorts of crimes which directly lead to imprisonment.20 Some of these end up dying mysteriously in prison. Thirdly, there are many arrests due to infractions of the pass laws. Pass laws are the cornerstone of apartheid. According to Amnesty International's publication, South Africa: Imprisonment Under the Pass Laws,21 238,000 Africans were arrested in 1984 alone for pass law and other infractions. A sizeable percentage of those arrested either for committing certain crimes or for pass law infractions never see the light of the day again. According to the report, Torture is Part of the System22 there are on average two hundred (200) deaths in South African prisons every year. Again
my supposition is that this is probably the highest number of deaths in prison anywhere in the world.
Further as already stated, there are those who commit horrendous crimes, some of which are induced by the psychology of poverty and political frustration under apartheid, which crimes are punishable by the death penalty. South Africa has one of the highest execution rates under the death penalty in the world. For example there were 130 people hanged in South Africa in 1980; 96 in 1981; 100 in 1982; 90 in 1983; and 115 in 1984.23 Add these to the over 200 people who die mysteriously in South African prisons per year, in addition add political detainees who die as a result of torture, then you have a very critical situation.
The death penalty is also as much a political weapon to deter political opposition as it is a legal instrument. Over the last several years, the number of people on the death row for committing "political" crimes has increased. As opposed to common criminals, these political convicts are categorized as having committed "unrest-related" crimes. A good number is constituted by those alleged to have committed "terrorist" acts. By the end of 1987, the number of unrest-related death row prisoners had risen to an estimated 44. By the end of 1987, five had been executed.25
The number of political death row inmates will certainly increase as time goes because of the introduction of the doctrine of "common purpose" by the government in recent years. This doctrine holds that if you are associated with those who have committed a crime, you are also liable. The famous Sharpeville six were convicted and sentenced to hang on the basis of this doctrine.
The doctrine of common purpose is certainly going to deepen South Africa's commission of crimes against humanity for which the culprits must answer wherever they go. And I join Jo-Ann Bekker26 in her appeal, "Those who dispassionately endorse the death penalty should spend a few afternoons outside Pretoria Central Maximum Security Section when the bereaved pay their last visits to the doomed."
Notes
1.The International Convention on the Suppression and Punishment of the Crime of Apartheid (United Nations General Assembly Resolution 3068(XXVIII), 30 November 1973, entered into force on 18 July 1976. As of December 1986, there were 86 ratifications) defines apartheid as a crime against humanity. I call those who commit the crime of apartheid, hence crime against humanity as apartheid criminals.
2."Declaration of the Seminar on the Legal Status of the Apartheid Regime and Other Legal Aspects of the Struggle Against Apartheid" Introduction to Apartheid: South Africa and International Law (New York: UN Centre Against Apartheid, 1985) p. 8.
3.International Convention on the Elimination of All Forms of Racial Discrimination (United Nations, Treaty Series vol. 660, p. 195). Entered into force on 4 January 1969.
4.G. Brahme, "Some Remarks on Responsibility for the Crime of Apartheid Under International Law" in Apartheid, supra note 2.
5.See Declaration on the Granting of Independence to Colonial Countries (United Nations General Assembly Resolution 1514(XV) of 14 December 1960).
6.Amnesty International, South Africa: Briefing (London, 1986) at p. 17.
7.For a good study of repression in South Africa using the Internal Security Act, 1982, see I.E. Sagay, State Terrorism in South Africa (New York: UN Centre Against Apartheid, 1984). See also Nicholas Haysom, "Human Rights Index" in (May 1985) I South African Journal of Human Rights 80, hereinafter referred to as S.A.J.H.R.
8.Sagay ibid at p. 3.
9.In cooperation with the UN Centre Against Apartheid (New York and London, 1983).
10.See Amnesty International supra not 6.
11.S.A.J.H.R. supra not 7 at p. 81.
12.Supra not 6.
13.Nigel Rodly, The Treatment of Prisoners Under International Law (Oxford: Oxford University Press, 1987).
14.Reported in Amnesty International supra note 6 at p. 8.
15.See Torture is Part of the System: State Violence in South Africa and Namibia (London: African National Congress, 1984) and Catholic Institute of International Relations (C.I.I.R.) et al, Torture in South Africa (London, 1982).
16.D. H. Foster, D. Sandler and D. M. Davis, "Detention, Torture and the Criminal Justice Process in South Africa" in (May, 1987) International Journal of the Sociology of Law 105. See also their forthcoming book, Detention and Torture in South Africa (London: James Currey, 1987).
17.Ibid at pp. 111-113.
18.Ibid at p. 113.
19.Gordon Winter, Inside Boss: South Africa's Secret Police (Harmondsworth: Penguin, 1981).
20.This should be a subject for another paper, "South Africa's high crime rate...the highest in the 'Western' world [is] linked directly to the socio-economic conditions by apartheid" Jo-Ann Bekker in Weekly Mail 5 to 11 February 1988.
21.(London 1986).
22.Supra, note 15.
23.Amnesty International supra note 68 at p. 16.
24.Human Rights Commission, Human Rights Update (July-Sept. 1988) Vol. 1, No. 4, p. 52.
25.Jo-Ann Bekker, supra, note 20.
26.Ibid.
CHAPTER TWELVE: CONCLUSION: THE DEATH PENALTY IN INTERNATIONAL LAW [back to top of page]
By Munyonzwe Hamalengwa
International law as evidenced by the present international human rights instruments does not outlaw the death penalty. It recognizes that many nations do retain this form of punishment. Taking that reality into consideration, international law tries to proscribe arbitrary killings that are not provided for by law.
On first reading one may get the impression that international law does indeed sanction the death penalty. The first guarantee in the U.N. "Safeguard, Guaranteeing Protection of the Rights of Those Facing the Death Penalty"1 stipulates "in countries which have not abolished the death penalty, capital punishment may be imposed only for the most serious crimes..." one wishes that the United Nations would come out with a convention that bans the death penalty outright along the lines of the Torture Convention.
Arbitrariness in the death penalty is banned by many human rights instruments, the major format almost being the same, e.g. article 4 of the American Convention2; article 4 of the African Charter on Human and People's Rights; article 2 of the European Convention; article 3 of the Universal Declaration of Human Rights etc. If the death penalty is not arbitrarily imposed, from the point of view of international human rights law, it seems to be allowable. As already stated this should not be surprising given the number of retentionist countries (Nigel Rodley, The Treatment of Prisoners Under International Law.3 These are about 120 countries that retain the death penalty.
Western Europe seems to be the leading region where the death penalty is fast disappearing. Only four states retain the death penalty.4 The death penalty is most prevalent in the Middle East and North Africa, indicating the strong religious influence on the issue. Most African countries also retain the death penalty. Canada's attempt to reintroduce capital punishment was defeated in June 1987. In the United States, 36 states authorize the death penalty.5
Amnesty International is one of the most important non governmental organizations opposed to the death penalty. Amnesty International has declared that the death penalty is a violation of the right to life and is the most cruel, inhuman and degrading of all forms of punishment.6 Amnesty International's relentless campaign is getting through to many governments. It is possible that in the near future the U.N. will draw up a convention for the purpose of outlawing one of the most barbaric forms of punishment -- the death penalty.
Notes
1.E.S.C. res. 1984/50.
2."No one shall be arbitrarily deprived of his life."
3.(Oxford: Oxford University Press, 1987) p. 165.
4.Paul Hoffman, "The U.N. Committee on Crime Prevention and Control" in AIUSA Legal Support Network, Newsletter, Vol. 5 No. 3 (Fall - Winter 1988) p. 3.
5.Ibid at p. 7.
6.See Amnesty International, The Death Penalty (1979), Clara Pope and Paul Hoffman, "The United Nations and The Death Penalty" in AIUSA Legal Support Network, The Universal Declaration of Human Rights 1948 - 1988 (New York, 1988) p. 89.
