Is an eye for an eye a legal remedy in the 21st century?

Every one has the right to life, liberty and security of person and that No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.  

The imposition of the death penalty would clearly violate the Universal Declaration of Human Rights.

The death penalty even breaches America’s own rights under the Bill of Rights-the Eighth Amendment’s ban on “Cruel and unusual punishment”.

Powers of governments are most of the times underestimated. With such discretion, governments are able to take away the rights of an individual in a warranted situation, such as the right to life of a criminal is limited by the governments extreme power. The death penalty has been recognized unconstitutional and abolished in many countries however undoubtedly many countries still inflict the right to take away one’s life for military service and by the countries that provide laws to enforce the death penalty. One of these countries that perform the capital of all punishments is that of the most powerful state in the world, the United States of America.

Even though the USA has signed the Declaration of Human rights they have not signed many other conventions or treaties that would breach the enforcement of the death penalty. For all rights of all people to be protected and warranted there has to be a worldwide agreement on the issue. When the signing of the Declaration of Human Rights took place it was considered that each of these countries would apply these everyday human rights to their society. The US has signed the Declaration however they have breached many of the rights by exercising the death penalty.

As America is a sovereign state they feel they do not need to abide by International Law and due to International Law not being binding the UN cannot impose them to do otherwise.  The Draft Declaration on Rights and Duties gives the US a probable cause also to impose the Death Penalty.   The UN is a body of law that was originally set up to act as check on sovereignty.  Unfortunately sovereignty allows states to hold on to their capital punishment laws.

The death penalty is very effective in the context of ‘punishing the criminal’. The most extreme of all punishments of course is the death penalty and even more so is the fact that it violates the civil rights that every person has. The death penalty faces many flaws that are leading to a unity of abolishment of the harmful punishment.  

A concerning problem that gives an added reason for the death penalty to be abolished is the concern of killing the innocent. Death is not irreversible and if one is found to have been innocent after the accused has been executed there is no way of letting him go free.  Dead is dead. This is a major flaw in the procedures of death penalty, which has constituted many reviews on legislation, but without doubt flaws should constitute for the abolition of the death penalty. Killing the innocent subsequently creates many consequences and controversies that question the procedures of the death penalty.

As America is a victim of executing the innocent they should inevitably be considering the abolishment of the death penalty. Even though many American people do believe that at least one innocent person has been executed under the death penalty the majority still support the death penalty.  Hopefully because of the split between abolitionist and retentionists there will soon be eradication on the death penalty.

Another concerning issue with the death penalty is the fact that there have been a numerous amount of cases where children have been sentenced and executed on the grounds of the death penalty.  The age at what someone can be subject to the death penalty differs from state to state. The act of this prosecution indefinitely breaches the rights of humans, especially the young who are the future generation. The international human rights treaties that forbid the execution of anyone under 18 years old at the time of the crime are the International Convention on Civil and Political Rights, the Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the Child and the American Convention on Human Rights.

Racial bias has been a factor of the death penalty for decades and there is still worry that the death penalty is bias towards the black society.  An organization that has been set up to protect the rights of racial discrimination was the Legal Defense Fund of the National Association for the Advancement of Coloured people.  

As time goes by, many reasons accumulate for the need to abolish the death penalty. The killing of a person is a very serious act and to be legalized it should if necessary only be used on the account that the accused is 100% proven guilty and has committed such a hennas crime. Surprisingly this has not been the case for as stated above there are many flaws with in the legal system.  Thankfully there have been many public outcries and cases where people have been seen to express their realisation that the death penalty breaches many human rights.

The supreme court of USA in 1972 recognised “the imposition and carrying out of the death penalty … constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.”    From the supreme courts decision it was decided that legislation of the death penalty should be sent back to the drawing boards and revamped. ‘The Furnam decision halted all pending cases but left the door open for the return of executions if the death penalty could be applied less capriciously.’ This was a stepping-stone that could have led to state wide abolition of the death penalty. However due to Americas ‘love’ for the death penalty and their growing crime rates, states quickly bought in new legislation allowing the death penalty. In 1977 the resume of Judicial Killing was once again on its way. Even before the Supreme courts decision was made in 1972 there had been a minimal amount of executions made. From 1966-1977 there were only 4 executions. In consideration of facts the questions have to be asked; why did the death penalty halt between this period, even before the 1972 decision? And why has it risen in the past years?  

 An indicator to the US that they are lacking the western modern day civilized view on the death penalty should be from the large minority of countries that have abolished the death penalty. Recently a European Court ruled that Turkey’s imposition of the death penalty can "no longer be seen as having any legitimate place in a democratic society" as it violated the European Convention on Human Rights' ban on inhuman and degrading treatment. The US should follow in some of its fellow states footsteps that have taken the materialistic approach of abolishing the death penalty.  The three highest countries that exercise the death penalty to a great extent are China, Iran and America. As one of the most powerful, civilized and developed countries in the world the US should feel ashamed to stand in line with less developed eastern countries for their lawful wrongdoings. In the 18th century Europe ended judicial torture and opted for life imprisonment. Many European countries saw the execution of offenders decrease and in some cases abolishment of such a punishment. Yet America still institutes the death penalty despite other countries agonizing perseverance to repute and the UN’ s international law and treaties.

An example of the differentiating views on the death penalty between countries was when ‘the British government legally challenged the US’s use of the death penalty in order to stop the executions of the death row inmates Tracy Housel and Jackie Elliot. Foreign Office of the British Government had serious concern about the trials of both men and the quality of evidence used to convict them and was considering taking the matter to the ICJ. Britain’s government policy was to express “strong opposition” to the death penalty and its imposition on British Nationals’ 

Britain and the US agree on many political and world issues. However the death penalty is another subject in which the UK clearly states has strong opposition for and is very concerned about the procedures not being true to the matter. An example of their differentiating views on the death penalty is the fact that Britain abolished the death penalty for rape in 1842; the US did this in 1977 over a century after the UK.

 

The death penalty is an issue that leaves the US in isolation from other civilized countries. The international view on the death penalty in the US is one of great concern. However the US tends to turn a blind eye to the international community’s expression on the abolition of the death penalty. Even more so the US ignores the UN’s expressed worry on the issue and continues to violate the Declaration of Human Rights, this being the only convention/treaty the US has signed in accordance with the protection of Human Rights. For example the US refused to sign the Convention of the Rights of the Child as it breaches the enforcement of the Death Penalty. This is just one out of the many the US has not signed to protect the ensure-able enforcement of the Death Penalty. Here are lists of Conventions that are set out to abolish the death penalty:

   

• The Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, adopted by the UN General Assembly in 1989, provides for the total abolition of the death penalty but allows states parties to retain the death penalty in time of war if they make a reservation to that effect at the time of ratifying or acceding to the Protocol. (Not signed by the US)

• Protocol No. 6 to the European Convention for the Protection of Human Rights and Fundamental Freedoms ["European Convention on Human Rights"] concerning the abolition of the death penalty, adopted by the Council of Europe in 1982, provides for the abolition of the death penalty in peacetime; states parties may retain the death penalty for crimes "in time of war or of imminent threat of war".

• The Protocol to the American Convention on Human Rights to Abolish the Death Penalty, adopted by the General Assembly of the Organization of American States in 1990, provides for the total abolition of the death penalty but allows states parties to retain the death penalty in wartime if they make a reservation to that effect at the time of ratifying or acceding to the Protocol.

• Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Torture Convention), adopted by the UN in December 10, 1984. Article 1 of the Torture Convention defines torture, in part, as:

any act by which severe pain or suffering . . . is intentionally inflicted

on a person . . . by . . . a public official....

The US has signed this convention and ratified it however due to their exercise of the death penalty they breach the laws that are enriched in this convention.

The United Nations is the only international government body that is set out to protect the Rights of Humans. These international laws aren’t binding and cannot be enforced however this is not to state that the UN is not effective in protecting Human Rights. Since the set up of the United Nations in 1942 we have seen an advancement and continuation of countries to abolish the death penalty. Even many of those countries that have not yet abolished the death penalty have not exercised the punishment for a number of years, most likely due to the recognition of Human Rights among the UN, the countries individually, and the personas individually.

Besides the UN there are many non-government organizations that are set up to abolish the death penalty. Few out of many consist of the following:

• Amnesty International (AI)-a worldwide movement of people who campaign for internationally recognized human rights.  "It's a worn cliché, but if Amnesty did not exist, it would have to be invented. It is simply unique." Amnesty international works in conjunction with the UN and many other NGO’s in the effort of non-violation of human rights and has been very effective in recent years.
• One of the youngest organizations for the abolition of the death Penalty in the US is the organization Together Against the Death Penalty that was founded in October 2000. They organised the First World Congress Against the Death Penalty, which brought together leading international NGOs, Presidents of Parliament and Presidents of bars from all over the world. They have been successful in gaining 500,000 signatures against the death penalty in the United States.
• World Coalition against the Death Penalty has been formed for the universal abolition of the death penalty. Amnesty international is a member along with the Community of Sant’Egidio, the International Federation of Human Rights and the International Federation of Christians against Torture as well as the National Coalition against the Death Penalty (USA), Journey of Hope (USA), the Japanese organisation Forum 90, Mothers against the Death Penalty (Uzbekistan) and many other national organisations from other countries.  Effectiveness has been described as “timely initiative” which “confirms that the trend towards banning capital punishment under international law is gaining strength and momentum.”

        33 states in the United States have abolished the death penalty.   The remaining constitute for why the USA is in the top three for the most executions carried out in 2003.  World wide 112 countries have abolished the death penalty in law or practice. The United States of America has not yet taken the next step to abolishing capital punishment however they have taken steps to reduce who they execute and to what crimes warrant the punishment, mainly only first-degree murder. The effect of international law has been that it has defined punishment of juveniles, the mentally retarded and those foreign nationals who were not informed of their consumer rights as unlawful. International legislations are continually being introduced in the hope of abolishing the death penalty worldwide.

        The literature review supports the notion that capital punishment is a basic infringement on individual’s human rights to life. Arguments on the merit of the punishment have been debated, introduced and abolished over time, with the largest push for abolition occurring in the late 20th century. Abolition appears to be a result of change in society attitudes to the ultimate punishment-death of an individual.

        There for the ‘eye for an eye’ legal remedy in the 21st century is a diminishing one.

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