The death penalty, another name for torture

The application of the death penalty is a lengthy process that produces physical and mental suffering at every step, both for those who are sentenced as well as for their loved ones. This suffering is ultimately what challenges the legitimacy of such a sentence. That is why it has already been recognised as a form of torture at various stages of its application in national, regional and international case law.

At the time of sentencing, the death penalty can be considered a form of torture if the safeguards for a fair trial were not respected, particularly if the conviction was the result of a confession obtained under duress or torture. International law goes as far as explicitly prohibiting the application of the death penalty to various groups of people who are considered particularly vulnerable, including children, pregnant women and people with serious psychosocial or intellectual disabilities that prevent them from effectively defending themselves.

During detention, those sentenced to death face “death row syndrome”, an additional form of torture triggered by the long, agonising wait, the isolation, the drastic decrease in human contact and even the physical prison conditions. People sentenced to death experience vastly different prison conditions depending on where they are incarcerated and whether they are subject to a special prison regime or are placed with the rest of the prison population. However, they are all highly exposed to treatment deemed incompatible with the prohibition of torture.

Lastly, the execution itself can be described as a form of torture. No State can guarantee the existence of a painless execution method. In fact, many methods - gas asphyxiation and induced hypoxia, stoning, hanging, firing squad, lethal injection, decapitation - have been condemned in international and regional case law as potentially constituting cruel and degrading treatment and being inconsistent with the absolute prohibition of torture. Nevertheless, in 2022, we regretfully noted another 638 or more people who died by hanging; at least 28 people shot and killed; the deaths of at least 21 people by lethal injection; and 196 people executed by decapitation.

Furthermore, it would be incorrect to think that the people sentenced to death are the only victims of these acts of torture. The families also experience what could be considered inhuman treatment, as they are not informed of the scheduled date of execution and are not allowed to say their goodbyes. Many families of executed people, in addition to enduring the pain inherent to the death of their relative, are victims of suffering caused by the secrecy that characterises many executions. The refusal to release the body of the executed person to their family also violates the prohibition of torture.

The prohibition of the death penalty has experienced considerable progress in recent years. The application of this sentence, much more generally tolerated, has been gradually restricted: over two thirds of countries have abolished it in law and in practice. The perception of the death penalty has thus evolved through the advancement of the prohibition of corporal punishment, the recognition on the national and regional levels of the violation of the proscription of torture, and the emergence of a new international custom.

If the international community judges that corporal punishment constitutes cruel, inhuman or degrading punishment or treatment, even as a legal sanction, there is no reason to view the death penalty differently. It could be seen as the worst form of corporal punishment. It is clearly inconsistent to view decapitation as different from corporal punishment, which can include the amputation of a member. The death penalty itself should be considered a form of torture in all circumstances.

The proscription of torture is a peremptory norm of international law (jus cogens), meant to be recognised by all States and from which no derogation is permitted. The death penalty remains tolerated in international law, but only when it is imposed for the most serious criminal offences, respecting certain procedural safeguards so as to inflict as little suffering as possible. FIACAT has therefore committed to increase advocacy work to gain recognition for the inherent connection between torture and the death penalty and to achieve the prohibition of the use of capital punishment in all circumstances.

As the 20th World Day Against the Death Penalty on 10 October 2022 was already dedicated to this topic, we were able to obtain positive results over the course of a year. International and regional bodies (such as the United Nations and the African Commission on Human and Peoples’ Rights, respectively) seized upon the issue. This work is positively advancing soft law ¹ with new resolutions, case law and reports.

It is a gradual process. We believe in the importance of collecting and studying all the developments in this direction so we can identify the emergence of an international trend, and thus of a customary norm banning the use of capital punishment in all circumstances. It is up to us, civil society, to take a bold stance in favour of the universal abolition of the death penalty.