Capital punishment and human rights, recent developmentsOctober 7, 2005 - nr.3
No. 3, April 1988
5: Policy recommendations
In ratifying the Sixth Protocol to the ECHR and the Second Protocol to the ICCPR, the Netherlands endorsed the view that the death penalty should be regarded as a human rights violation in all circumstances. This view is not yet shared by all States. However, under current international public law, the death penalty should be regarded as a human rights violation in certain situations (see above section on capital punishment as a human rights violation). The Dutch policy should be geared towards gaining support for a universal ban on capital punishment. On this basis, the Advisory Council makes the following recommendations to the Netherlands Government:
- An active policy should be pursued to ensure the accession of more states to the Second Optional Protocol to the ICCPR. To the extent that accession to human rights conventions plays a role in bilateral relations, accession to the Second Optional Protocol should also be broached explicitly to states that have abolished the death penalty, whether de facto or de jure, but are not yet party to the Second Optional Protocol.
- States that have abolished the death penalty or have announced a moratorium on capital punishment should be given positive attention and - where necessary - support.
- A diplomatic démarche should be standard procedure whenever the death penalty is reintroduced, whether de facto or de jure, and also in the case of an extension of the number of offenses punishable by death.24
- Active efforts should be made to exclude the possibility that the International Criminal Court soon to be established will be able to sentence convicted persons to death.25
- On the basis of paragraph 17.7 of the 1990 Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, the states parties to the OSCE will 'exchange information [...] on the question of the abolition of the death penalty and keep that question under consideration'. This paragraph provides scope to raise the issue of the abolition of the death penalty within the OSCE on a regular basis; the government should continue to use this opportunity to urge the complete abolition of the death penalty in those OSCE countries where it still exists. Aside from this, the question of the death penalty should be explicitly incorporated into the mandate of OSCE missions and the Advisory and Monitoring Groups.
Council of Europe
- The Council of Europe's activities aimed at strengthening the moratorium on the death penalty in member states where capital punishment still exists de jure should be given strong support.
- The accession conditions for membership of the Council of Europe relating to the signing and ratification of the Sixth Protocol to the ECHR should be upheld unconditionally.
- Diplomatic initiatives should be undertaken to promote the United Kingdom's accession to the Sixth Protocol to the ECHR (and the Second Optional Protocol to the ICCPR), partly in order to boost the Council of Europe's credibility in relation to the death penalty vis-à-vis new member states.
- Active efforts must be made to promote the incorporation of the Sixth Protocol to the ECHR (and the Second Optional Protocol to the ICCPR) into the acquis communautaire in the field of human rights, with a view to the negotiations with candidate member states. Here as in the case of the Council of Europe, the EU's credibility will be considerably strengthened if the United Kingdom gives up its special position in this connection.
- A policy framework should be drafted for démarches in the framework of CFSP. A previous attempt to establish more clearly defined criteria for the EU's responses to events relating to the death penalty foundered because of the United Kingdom's unwillingness to cooperate. The United Kingdom appears to be more willing than in the past to agree to EU measures. This creates scope for a more coordinated policy in this area.
- As already noted, the policy framework should preferably be set up and implemented in the framework of the EU. Where it is impossible to reach agreement within the EU as a whole, it should be possible to make démarches on behalf of a smaller group of like-minded states; otherwise they should be made bilaterally. In the policy framework to be set up, a clear distinction should be made between general and individual responses.
- It seems right that the EU or its member states, in relevant international forums such as the UN Commission on Human Rights, should consistently express criticism of states that still have capital punishment in their legal systems, and which, contrary to the international effort to achieve complete abolition of the death penalty, are not using it with any less frequency than before. Criteria should be drafted to determine when, and in what circumstances, a general response of this kind is opportune.
- A general démarche is the best option where the death penalty is reintroduced or the list of offenses punishable by death is extended.
- Individual démarches should in any case be made if capital punishment is applied in such a way, in the context of the current state of international public law (as described above), as to constitute a human rights violation. This applies to violations of international norms concerning categories of persons exempt from the death penalty, to the application of the death penalty in violation of internationally accepted procedural norms, to the imposition of the death penalty for less serious offenses, and to unacceptably long periods spent on 'death row'.26
- Both general and individual démarches should place particular emphasis on the fact that in international legal norms, the fundamental right to life is the most important of all; the death penalty is at this stage still an exception, but its application must be vigorously curbed, the ultimate aim being its complete elimination worldwide.
24 No démarches were, regrettably, made in 1994, whether unilaterally or in the context of CFSP, when the death penalty was reintroduced in the Philippines and in the state of New York. The Philippines' announcement in 1998 that it intended to start actually carrying out the death sentences that were passed, however, did elicit a response.
25 This permanent International Criminal Court will be competent to try inter alia persons accused of genocide, other crimes against humanity and serious violations of humanitarian law. The negotiations on the International Criminal Court are now in their final phase. The aim is to complete the decision-making process in 1998, to which end a Diplomatic Conference is scheduled for June-July 1998 in Rome.
26 The judgment of the European Court of Human Rights in the Soering case could serve as a guideline here. See European Court of Human Rights, judgment of 7 July 1989.
Professor R.F.M. Lubbers
Chair, Advisory Council on International Affairs
2500 EB The Hague
Date: 14 January 1998
Re: Request for an advisory report on the death penalty
Dear Professor Lubbers,
During the Lower House debate on the Ministry of Foreign Affairs budget in December 1997, Mr Valk, Member of Parliament, urged the government to exert itself internationally to have the death penalty classified as a human rights violation. At the same time he asked the Government to request the advice of the Advisory Council. This request was granted, and we should therefore be appreciative if your Advisory Council would issue its recommendations on the matter. We should like to formulate this request as follows.
As you will know, the position of the Netherlands Government is set forth in its policy document of 22 March 1990 (Lower House, 1989-1990 session, 21 518, no.1), in which the Government declares itself to be a firm opponent of capital punishment wherever it is carried out. This position is based largely on the fact of the irreversibility of the death sentence and the affront to human dignity that it represents. As there is no universal ban on capital punishment under international law, the Government's efforts are geared towards limiting the application of the death penalty, with the ultimate aim of worldwide abolition. It was pointed out during the debate that this is in fact the current trend worldwide as expressed, for instance, in the entry into force, in July 1991, of the Second Optional Protocol to the International Covenant on Civil and Political Rights, which is aimed at abolition, and the adoption of the resolution 'Question of death penalty' by the UN Human Rights Commission meeting of March/April 1997. In addition, as a result of the enlargement of the Council of Europe, more countries have committed themselves to abolishing the death penalty. Although, as already noted, there is no international ban on capital punishment, the Government is of the opinion that by adopting a pragmatic approach it will be possible to stop the death penalty being carried out. Classifying part of a country's legal system as a human rights violation is not a step that can be taken lightly. It is important to reflect carefully on all the aspects involved. What should the Netherlands' position be, for instance, vis-à-vis a country that is guilty of a structural violation of human rights by virtue of its continuing to apply the death penalty?
It may be added that discussions are currently taking place in an EU framework about the EU's attitude to the death penalty. This is in part related to the change of position adopted by the UK, which is displaying a greater willingness than before to agree to measures at EU level. At the time, the UK abstained from voting on the above-mentioned resolution in the UN Commission on Human Rights. Now, an effort is being made to establish more well-defined criteria for EU responses to questions involving capital punishment.
We should like your advice as to whether the death penalty should be classified as a human rights violation and, if so, what consequences this might have for the Netherlands' attitude to countries that continue to retain the death penalty as part of their legal system. Our preference would be for a concise advisory report that can help focus the Government's ideas on this subject. A report of this kind could perhaps be completed quite soon, if possible by mid-March 1998.
H.A.F.M.O. van Mierlo
Minister for Foreign Affairs
Minister of Defence
Minister for Development Cooperation
Professor R.F.M. Lubbers
Chairman, Advisory Council on International Affairs (AIV)
2500 EB The Hague
Re: Your advisory report on the death penalty
Dear Professor Lubbers,
I should like to thank you, both personally and on behalf of my fellow ministers of Defence and Development Cooperation, for the advisory report 'Capital punishment and human rights: recent developments' that you sent us by letter of 8 April 1998.
The report contains a clear overview of developments that have taken place in the area of capital punishment since the Government formulated its point of view in its policy document of 20 March 1990. You have attached a number of policy recommendations which I can in general endorse. As you know, Dutch policy is unreservedly geared towards the total abolition of the death penalty. As this has not yet been achieved, the government is striving to achieve a moratorium or at least the most restricted possible use of the death penalty, in accordance with existing international norms. The policy document of 1990 states that the Government views capital punishment as a human rights problem, which is unlikely to be resolved in the short or medium term. Although a number of positive developments have taken place since the policy document appeared, this view still holds good today.
I should like to make a number of specific comments.
1. In the light of the points noted above, I share your views concerning a gradual development in the direction of a ban on the death penalty. Positive trends in this direction are given strong support. However, you also remark on a number of negative developments. It should be borne in mind in this connection that the debate about whether or not the death penalty should be retained as part of a country's domestic legal system touches on sensitive elements such as 'internal affairs' and 'cultural differences'. In practice these elements must be taken into account, if efforts on the part of the Netherlands and like-minded countries geared towards achieving total abolition are not to prove counter-productive. In this connection, I await your advisory report on the universality of human rights and cultural diversity with great interest.
2. As you know, Dutch policy on human rights, including policy on the death penalty, is pursued as far as is possible in an EU framework. The EU recently decided to step up its policy on the death penalty. To this end, a document was drawn up giving guidelines for démarches and other steps that can help move us closer to the eventual abolition of capital punishment. General démarches will consistently call for the total abolition of the death penalty, or at least advocate a moratorium. Where the death penalty is still imposed, the countries concerned will be urged to increasingly place limits on it, in accordance with a number of minimum standards. These standards are also noted in the policy document, and relate to those cases which your advisory report classifies as violations of generally accepted international norms. Where necessary, the EU will also urge more openness in relation to the imposition of the death penalty. Démarches must take account of the situation in the country concerned. For instance, in the case of a country that regularly imposes the death penalty in a manner that breaches universally accepted international norms, there is little point in making a démarche in each individual case. In cases of this kind, it would be more appropriate to take periodical initiatives in international forums, whether of a general nature or otherwise.
3. Other EU initiatives include promoting accession to the relevant treaties (both global and regional), raising the issue of the death penalty in all relevant international forums, and offering bilateral and multilateral cooperation (including cooperation with NGOs), for instance to promote good judicial procedures.
As the EU's policy provides enough scope for the Netherlands to pursue its policy on the death penalty, the government will largely focus on these channels. The intensification of EU policy on capital punishment has led inter alia to démarches in Botswana (the carrying out of a death sentence after a two-year de facto moratorium); the United States (where the person concerned was a minor at the time of the crime); Rwanda and Lebanon (public executions). The abolition of capital punishment in Azerbaijan and Estonia was welcomed.
Hans van Mierlo
Minister for Foreign Affairs
No press release has been published for this advice.