The Death Penalty and International Law: A Global Perspective
Maryline Akinyi Ochieng
The Technical University of Kenya
Introduction
The death penalty remains one of the most controversial issues in the realm of human rights and international law. Historically, it was viewed as an appropriate and necessary punishment for certain severe crimes. However, as society’s understanding of human rights, dignity, and justice has evolved, so too has the international legal stance on capital punishment. Today, the death penalty is seen by many as a violation of fundamental human rights and is increasingly regarded as incompatible with international legal standards. This article explores the development of international law concerning the death penalty, examines major international conventions and treaties that have sought to limit or abolish capital punishment, and discusses the broader human rights implications.
The Death Penalty: A Historical Overview
Death Penalty was a standard practice worldwide, sanctioned by both civil and religious authorities. It was often used as a deterrent for serious crimes such as murder, treason, and rebellion. The historical justification for the death penalty rested on the belief that the state had an inherent right to impose retribution on those who committed grave offenses.
However, by the late 19th and early 20th centuries, the global community began to reevaluate the morality and necessity of capital punishment. Several significant shifts occurred, marking the beginning of a broader movement against the death penalty. The execution of people for offenses that were increasingly seen as minor or for political reasons led to widespread public outcry. The rise of the human rights movement in the aftermath of World War II further contributed to the growing skepticism surrounding the legitimacy of state-sanctioned killing.
At the heart of this change was the belief that all human beings, regardless of their crimes, retain their dignity and rights. As a result, the post-war period saw an increase in efforts to classify and protect human rights through international law, including the movement for the abolition of the death penalty.
International Legal Frameworks on the Death Penalty
Over the past few years, the international legal landscape concerning the death penalty has evolved significantly, as international treaties and conventions have progressively restricted its application. Various international bodies, including the United Nations (UN) and regional human rights organizations, have played a crucial role in shaping global attitudes toward capital punishment.
The International Covenant on Civil and Political Rights (ICCPR)
Incorporated in 1966, the International Covenant on Civil and Political Rights (ICCPR) stands as one of the most paramount legal instruments regarding human rights and the death penalty. Article 6 of the ICCPR identifies the right to life as an inherent human right but allows for the death penalty under certain conditions.
Specifically, Article 6(1) stipulates that the death penalty may only be enforced on the "most serious crimes," these has been subject to considerable interpretation and debate. The Human Rights Committee (HRC), which oversees the implementation of the ICCPR, has mentioned that the death penalty should be used only in exceptional circumstances and in cases involving particularly outrageous crimes.
Article 6(2) also places restrictions on the application of the death penalty, including the prevention to execute the individuals who were minors at the time of the crime or who are pregnant. Also, the article requires that individuals sentenced to death have access to the right to appeal their conviction and sentence, ensuring a reasonable legal process.
In spite of, this allowance for capital punishment, the Human Rights Committee has interpreted Article 6 as signifying a long-term goal of abolition. Many of the committee's decisions and general comments highlight the view that the death penalty should be nullified over time, a sentiment reflected in the global trend toward its reduction.
The Second Optional Protocol to the ICCPR
In 1989, the United Nations took a major step toward terminating the death penalty with the adoption of the Second Optional Protocol to the ICCPR, aiming at the termination of the death penalty. This protocol specifically calls for the end of the death penalty for all crimes. As of 2025, it has been confirmed by over 80 countries, making it a key international legal tool in the abolitionist movement.
The Second Optional Protocol reflects the broader shift in international legal norms, aligning with the growing recognition that the death penalty infringes fundamental human rights. Signatories to the protocol are legally bound to ensure that the death penalty is not practiced within their jurisdictions, and they must also take steps to encourage other countries.
The European Convention on Human Rights (ECHR)
The European Convention on Human Rights (ECHR), which was signed in 1950 and applies to members of the Council of Europe, played a pivotal role in shaping the legal landscape of the death penalty in Europe. Protocol No. 6 of the ECHR, established in 1983, Wiped out the death penalty in peacetime. Protocol No. 13, adopted in 2002, went further, calling for the total removal of capital punishment in all circumstances, including during times of war.
As a result of these protocols, the death penalty is now prohibited in nearly every European country, and it has become a non-negotiable condition for European Union (EU) membership. The EU has used its economic and political influence to encourage countries outside Europe to end the death penalty. The EU has made the abolition of the death penalty a core principle of its human rights policy and has applied diplomatic and trade penalties against countries that continue to practice capital punishment.
Regional Instruments and the African Charter on Human and Peoples' Rights (ACHPR)
The abolition of the death penalty in Africa is governed in part by the African Charter on Human and Peoples' Rights (ACHPR), which sets forth the rights and freedoms of individuals on the African continent. While the ACHPR does not explicitly call for the abolition of the death penalty, Protocol to the African Charter on Human and Peoples' Rights on the Abolition of the Death Penalty (1999) offers a clear path toward abolition. The protocol calls for the progressive abolition of capital punishment across the African continent, but it provides a degree of flexibility, allowing countries to retain the death penalty under unusual circumstances, such as during times of war.
The Worldwide Movement for Abolishment
There has been a marked global decline in the use of the death penalty. As of 2025, over two-thirds of the world’s countries have either abolished the death penalty or do not actively practice it. According to Amnesty International, the total number of executions worldwide has dropped significantly in recent years, with a decrease of 30% in executions between 2019 and 2020.
In America, the death penalty has been terminated in most countries, with only a few of nations still holding on to it. In 1977, the Organization of American States (OAS) adopted the American Declaration on the Abolition of the Death Penalty, which has been instrumental in encouraging countries like Argentina, Brazil, and Costa Rica to abandon capital punishment. Only a few countries in the Americas, including the United States, remain active in executing individuals.
While the trend toward abolition is clear, the death penalty is still practiced in certain regions, particularly in parts of Asia, the Middle East, and Africa. Countries such as China, Iran, and Saudi Arabia continue to enforce the death penalty on a wide range of offenses, often under concealed situations. These nations argue that the death penalty deters serious crimes and maintains public order. However, the use of capital punishment in these regions attracts significant criticism from international human rights organizations, who argue that it often violates the right to life and is applied arbitrarily.
Arguments Contradicting the Death Penalty from Human Rights and Ethical Perspectives
The central argument against the death penalty in international human rights law revolves around the right to life, stipulated in Article 3 of the Universal Declaration of Human Rights (UDHR) and Article 6 of the ICCPR. Opponents of capital punishment argue that the state should not have the power to take a life, regardless of the crime committed. The irreversible nature of execution means that any unjust decision cannot be corrected.
Right to Life
The right to life is considered an absolute right under international law. The UDHR and the ICCPR both emphasize that every individual has a right to life and that this right cannot be taken away. Advocates for the abolition of the death penalty argue that capital punishment constitutes an irreversible breach of this fundamental right.
Risk of Arbitrary Execution
Another significant concern with the death penalty is the risk of arbitrary and discriminatory application. Studies have shown that individuals from marginalized backgrounds such as the poor, minorities, and those without adequate legal representation are excessively sentenced to death. This destroys the fairness of the justice system and worsens inequalities within society.
Cruel, Inhuman, or Degrading Treatment
Adversaries of the death penalty also argue that it leads to cruel, inhuman, and degrading treatment, which is illegal under Article 5 of the UDHR and Article 7 of the ICCPR. The execution process often involves significant physical and psychological suffering for the individual being executed, as well as for their families and the broader community. Moreover, public executions and prolonged death row sentences can impose unnecessary pain and suffering to the sentenced person.
Conclusion
The death penalty remains one of the most contentious issues in international law. While the global trend continues to shift toward abolition, significant challenges remain in persuading all nations to adopt the abolitionist stance. International legal provisions, such as the ICCPR, the Second Optional Protocol, and regional conventions, have played a central role in shaping attitudes toward capital punishment and advancing the cause of abolition.
As more countries join the global movement for the abolition of the death penalty, it is important to know that the issue is not just about the legality of the practice, but also protecting fundamental human rights, including the right to life and the prevention of cruel and inhuman treatment. The continued advocacy for abolition will help ensure that international law reflects the evolving standards of human dignity, justice, and fairness.
References
United Nations. (1966). International Covenant on Civil and Political Rights (ICCPR). Retrieved from https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
United Nations. (1989). Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty. Retrieved from https://www.ohchr.org/en/professionalinterest/pages/secondoptprotocol.aspx
Council of Europe. (2002). Protocol No. 13 to the European Convention on Human Rights. Retrieved from https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/187
Amnesty International. (2023). Death Penalty: Global Overview. Retrieved from https://www.amnesty.org/en/what-we-do/death-penalty/
Organization of American States (OAS). (1977). American Declaration on the Abolition of the Death Penalty. Retrieved from https://www.oas.org/en/
United Nations Human Rights Committee. (1989). General Comment No. 6: The Right to Life. Retrieved from https://www.ohchr.org/en/documents/general-comments/general-comment-no-6-right-life