Equating the death penalty with torture:
The final step towards abolition
Oral statement by Sylvie Bukhari-de Pontual during a Workshop on Torture and the Death Penalty - Madrid, Spain, 14 June 2013.
Ladies and Gentlemen,
Good-day to you all,
First of all, let me introduce myself. My name is Sylvie Bukhari-de Pontual, I practise at the bar in Paris and I am Dean of the Faculty of Social and Economic Sciences at the Institut Catholique de Paris. I am also President of the International Federation of Action by Christians for the Abolition of Torture (FIACAT) and it is in this capacity that I am going to speak at this workshop.
FIACAT is an international, non-governmental human rights organisation set up in 1987 which fights for the abolition of torture and of the death penalty. The Federation brings together some thirty national associations, the ACATs, from four continents. Its mandate is to add its support to the work of its members and to represent them in international and regional organisations.
Can the death penalty constitute an act of torture? That is a key question for NGOs such as FIACAT. The case law of regional and international bodies does not come down clearly on one side or the other.
What would be the consequences for abolition of the death penalty if international bodies recognised that it constitutes torture? A certain amount of legal clarification is required here and is of interest for this workshop.
I. Torture, an outright ban under international law
Referring to a ban on torture under international law means referring to a peremptory norm under general international law, or Jus Cogens. Since the end of the 1990s, international jurisprudence has considered that there could be no derogations from the ban on torture.
Thus in its Furundžija judgement of 10 December 1998  the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (ICTY) outlined the significance of a ban on torture as regards international law.
The Tribunal considers that torture is outlawed under all regional and international human rights agreements as well as under international humanitarian law . Practically all the States in the world have ratified these treaties, which shows that they accept the prohibition of torture. The ICTY concludes from this that the prohibition of torture now has the value of customary law internationally and is therefore binding on all States, even those which have not ratified the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment or any other treaty for the protection of human rights which bans the use of torture . This customary rule prohibits torture in both peacetime and in times of armed conflict.
Consequently, at international level this absolute ban deprives of legitimacy any legislative, administrative or judicial act authorising or tolerating torture. The ban is so extensive that “States are even barred by international law from expelling, returning or extraditing a person to another State where there are substantial grounds for believing that the person would be in danger of being subjected to torture.” . States are obliged not only to prohibit and punish torture, but also to forestall its occurrence .
The Tribunal continues its reasoning by stating that the ban on torture under international law is “one of the most fundamental standards of the international community” . Owing to the importance of the values which this prohibition protects, it has «evolved into a peremptory norm or jus cogens, that is, a norm that enjoys a higher rank in the international hierarchy than treaty law and even ‘ordinary’ customary rules.” .
There is thus a hierarchy of legal norms in international law and the prohibition of torture is at the top of this hierarchy, at the same level as, for example, the prohibition of genocide or slavery. No State may derogate from this norm, whatever the situation, not even via an international treaty or by developing a local or special custom or drafting a new customary general rule.
II. Is the death penalty an act of torture?
On the other hand, protection of the right to life is not a peremptory norm and may be subject to numerous derogations, including application of the death penalty. Thus Article 6 of the International Covenant on Civil and Political Rights  specifies that “No one shall be arbitrarily deprived of his life.” The term “arbitrarily” is important here. The subsequent paragraphs of this Article cover application of the death penalty for those States which have not yet abolished it. 
Deciding that the death penalty constitutes torture is therefore tantamount to declaring it illegal everywhere, in all circumstances. For these reasons, international bodies are somewhat reluctant to declare that the death penalty is torture. They more readily refer to cruel and degrading treatment, a much vaguer concept.
For us militant abolitionists, stating categorically that the death penalty is torture would mean moving things forward much more quickly than declaring the death penalty to be a violation of the right to life.
Frequently, NGOs and activists working towards abolition think that by using the ban on torture as a staging post they will meet less opposition than if they lobby for the death penalty to be recognised as a violation of the right to life. This is a mistake, since going down the road of a ban on torture is not an alternative route. States and a fortiori International Organisations are aware of the possible consequences of this move.
To sum up, considering that the death penalty constitutes an act of torture under international law is not just a stage on the road to abolition but the final stage, following which the death penalty will be considered illegal in all places and in all circumstances, with no derogations.
Thus in his August 2012 report , Juan Mendez, the United Nations special Rapporteur on torture and other cruel, inhuman or degrading treatment, did not state unequivocally that the death penalty constitutes torture. He considers that “even if the emergence of a customary norm that considers the death penalty as per se running afoul of the prohibition of torture and cruel, inhuman or degrading treatment is still under way, most conditions under which capital punishment is actually applied renders [sic] the punishment tantamount to torture. Under many other, less severe conditions, it still amounts to cruel, inhuman or degrading treatment.”  He goes on to state that “the trend to abolish and the trend to restrict are both informed by a stated conviction that capital punishment is cruel, inhumane and degrading, either per se or as applied”. . He does not here mention torture.
Finally, he states that he “is convinced that a customary norm prohibiting the death penalty under all circumstances, if it has not already emerged, is at least in the process of formation.” 
He concludes his report by recommending a more comprehensive legal study on the emergence of a customary norm prohibiting the use of the death penalty under all circumstances.
A closer look at the current state of positive law helps us better to understand what is at stake, and why the death penalty should be regarded as torture.
If the emergent customary norm referred to by Juan Mendez is to see the light of day, the civil society, which we represent today, must persuade international and regional bodies to extend the notion of cruel, inhuman and degrading treatment in order to reduce even further the scope of the death penalty. Repeated instances of increasingly ambitious case law will, in the end, ensure that the death penalty equates to torture.
It is also our duty to encourage the United Nations Human Rights Council to enable the comprehensive legal study recommended by the special Rapporteur on torture, Mr Mendez, actually to be produced.
Finally, it is imperative that, under international law, the death penalty per se be declared illegal, and outlawed, purely and simply. This is the objective which we must all pursue.