The debate surrounding the death penalty has recaptured the attention of the international legal community. On the same day that the United Nations High Commissioner for Human Rights urged member States to move forward with the abolition of the death penalty on March 1, the Philippines House of Representatives approved a proposal to reinstate the death penalty, almost eleven years since ex-President Gloria Macapagal Arroyo announced a moratorium on its application. Under the proposal, rape, murder, and certain drug offenses will be subject to capital punishment. Significantly, these drug-related offences include the import, sale, manufacture, delivery and distribution of narcotics, among others. The bill still faces additional hurdles before becoming effective. To pass muster, the bill requires approval by the Senate, followed by a ruling of the Justice Department on whether it contravenes the country’s commitment to international conventions, and finally the signature of the president. However, given the proposal constitutes an important part of President Duterte’s political campaign and both the Senate and the justice secretary (President Duterte’s fraternity brother) are allies of the president, the likelihood that the bill will pass is high. According to the bill, capital punishment would be carried out by hanging, firing squad, or lethal injection.
Opponents of the bill have argued that the proposed law violates the International Covenant on Civil and Political Rights (ICCPR), ratified by the Philippines in 1986. Instead of fully rejecting the legitimacy of the death penalty, ICCPR is carefully formulated to treat the use of capital punishment as an exception to the right to life. Article 6 of ICCPR, which provided the legal basis for judicial capital punishment in international law, limits the exception to the right to life only to situations where the “most serious crimes” are committed. In recent years, in conjunction with a worldwide trend towards the abolition of the death penalty, the interpretation of the “seriousness” element has become more restrictive. For example, in 2006, the United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions defined “most serious crimes” as “cases where it can be shown that there was an intention to kill, which resulted in the loss of life.”
In addition to defining the concept of “most serious crimes” narrowly, the United Nations (“UN”) and other international human rights bodies have sought to pick out crimes that do not meet the threshold for seriousness. In particular, the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions unequivocally stated that “the death penalty should be eliminated for crimes such as economic crimes and drug-related offenses.” Moreover, the large number of drug offenses and arbitrariness of drug-related defenses according to the definition under International Narcotics Control Regime, makes it hard to meet the threshold of “most serious crimes.” Drug-related crimes for which the death penalty can be imposed range from possession, production, trafficking or use of illicit narcotics across countries. Moreover, as noted by UN Secretary-General in 1995, the threshold for capital drug offenses ranges from the possession of 2 to 25,000 grams of heroin across countries. The high variability of capital punishment thresholds across jurisdictions as well as the wide span of activities that can be brought under drug-related offenses provide a strong argument against their being able to meet the “most serious crime” standard.
Despite significant moves toward the abolition of capital punishment, the death penalty is still actively used in many parts of the world. According to the 2015 report by Amnesty International, 2015 observed a dramatic surge in the number of executions worldwide, outnumbering the previous twenty-five years. At least 1,634 people were executed in 2015, a rise of more than 50% on the year before, linked, in particular, to an increase in the use of capital punishment in Iran, Pakistan and Saudi Arabia who together were responsible for 89% of all executions in 2015. The number of countries resorting to capital punishment rose from twenty-two in 2014 to twenty-five in 2015, and at least six countries who had not put anyone to death in 2014 did so in 2015, including Chad, where executions were carried out for the first time in more than a decade.
At the same time, hope remains as four countries abolished the death penalty in 2015: Fiji, Madagascar, Republic of Congo, and Suriname. Mongolia also passed a new criminal code abolishing the death penalty, which took effect on July 1, 2016. For the first time, a majority of the world’s countries, 102 of all countries, have now abolished the death penalty. In total, 140 states across the globe are abolitionist in law or in practice. As of April 1, 2016, a total of eighteen U.S. states have abolished or repealed the death penalty, and a total of nine U.S. states have not conducted an execution in at least a decade. In other words, for the first time since capital punishment was reinstated in the United States, a majority of states have halted the death penalty in either policy or practice. In light of this promising progress towards the end of use of the death penalty worldwide, the recent Philippines’ proposal to reinstate death penalty appears at odds with greater global trends.
Summer Xia is a second-year J.D. candidate at Columbia Law School and a staff member of the Columbia Journal of Transnational Law. She graduated from Bryn Mawr College with a degree in Economics and Psychology.