OPINION OF COMMISSIONER HÉLIO BICUDO
In the 108th period of sessions
I expressed my opinion that the death penalty has been abolished in the
inter-American system of human rights.
In Case 12.028 (Grenada), concerning the mandatory death sentence
imposed on Mr. Donnason Knights, I presented my argument in favor of this
understanding. In the present
case, although I am in general agreement as to the findings, reasoning and
motives of the report, I would like to insist on my position that the
death penalty has already been abolished by the evolution of the normative
standards of the inter-American system.
For this reason I present the following separate opinion:
The American Declaration of the Rights and Duties of Man
(hereinafter American Declaration), approved at the Ninth International
American Conference, which took place in Santa Fe de Bogotá in May and
June of 1948, affirms that “Every human being has the right to life,
liberty and the security of his person” (Article I) and, moreover, that
“All persons are equal before the law and have the rights and duties
established in this Declaration, without distinction as to race, sex,
language, creed or any other factor” (Article II).
Article 4 of the American Convention on Human Rights (hereinafter
American Convention), approved on November 22, 1969 in San
Jose, Costa Rica, states that “Every person has the right to have his
life respected. This right
shall be protected by law and, in general, from the moment of conception.
No one shall be arbitrarily deprived of his life.”
At the same time, the American Convention, by including the right
to personal integrity in the civil and political rights framework, affirms
that “No one shall be subjected to torture or to cruel, inhumane, or
degrading punishment or treatment.”
However, death penalty is provided for in the American Convention
in its original version. Article 4, Section 2 allows the death penalty to be applied
by member states only for the most serious crimes.
There is a contradiction among the aforementioned articles which
repudiate torture, cruel, inhumane or degrading punishment or treatment.
The American Declaration considers life to be a fundamental right,
and the American Convention condemns torture or the imposition of cruel,
inhumane or degrading punishment or treatment.
The elimination of a life could be deemed torture or cruel,
inhumane or degrading punishment or treatment.
It seems that the tolerance expressed in Article 4, Section 2 of
the American Convention reveals the sole adoption of a political position
of conciliation between all member states in order to approve a more
general article, the one about the right to life.
Before analyzing what it means for some States to retain the death
penalty as a part of their legal systems, it is important to note that the
Inter-American Convention to Prevent and Punish Torture, signed in
Cartagena de Indias, Colombia, on December 9th, 1985, describes
the meaning of torture as follows: “Torture shall be understood to be
any act intentionally performed whereby physical or mental pain or
suffering is inflicted on a person for purposes of criminal investigation,
as a means of intimidation, as personal
punishment, as a preventive measure, as a penalty, or for any other
purpose” (Article 2).
Notice that this article addresses torture as a personal punishment
or penalty in all circumstances.
The death penalty brings immeasurable suffering to the individual.
Is it possible to imagine the anguish that the individual feels
when he/she is informed of the verdict?
Or the moments leading up to the actual execution?
Would it be possible to evaluate the suffering of those who wait on
death row for execution, in some cases for several years?
In the United States, fifteen, sixteen or seventeen year-old
minors, who committed homicide and subsequently received the death
penalty, wait for fifteen years or longer for their execution.
Is it possible to imagine a fate worse than remaining between hope
and despair until the day of execution?
The OAS member states, by adopting the Convention on Forced
Disappearance of Persons, reaffirms that “the true meaning of American
solidarity and good neighborliness can be none other than that of
consolidating in the Hemisphere, in the framework of democratic
institutions, a system of individual freedom and social justice based on
respect for essential human rights.”
It is important to mention that in 1998 and 1999, the United States
was the only country in the world known for executing minors under 18
years of age. To that extent,
it is important to note that the United States has accepted the
International Covenant on Civil and Political Rights since September 1992,
Article 6(5) of which establishes that the death penalty cannot be imposed
on minors under 18 years old or on pregnant women. The U.S. Senate opted to express its reservation to this
section at the moment of its ratification but currently, there is an
international consensus opposed to that reservation based on Article 19(c)
of the Vienna Convention on the Law of Treaties.
This Convention gives the State the possibility to formulate
reservations, but these reservations cannot be incompatible with the
object and purpose of the treaty.
In June 2000, Shaka Sankofa, formerly known as Gary Graham, was
convicted in the State of Texas for a crime he committed when he was 17
years old. He was executed
after waiting 19 years on death row, although the Inter-American
Commission on Human Rights (hereinafter “IACHR” or “Commission”)
had formally presented requests to the American government to suspend the
act until the case was decided by the Commission.
There were serious doubts regarding whether Shaka Sankofa had
really committed the crime. The
U.S. Government did not respond to the Commission’s recommendation but
could not escape from the jurisdiction of the IACHR on the protection of
human rights, according to the American Declaration.
The Commission thus sent out a press release condemning the U.S.
decision, since it was not in accordance with the inter-American system of
protection of human rights.
The Inter-American Convention on the Prevention, Punishment and
Eradication of Violence against Women (hereinafter Convention of Belem do
Pará), approved in Belem do Pará, Brazil, on June 9, 1994, does not
allow the imposition of the death penalty on women.
Article 3 states “ Every woman has the right to be free from
violence in both the public and private spheres” and Article 4 states
that “Every woman has the right to have her life respected”.
Regarding the duties of States, the Convention of Belem do Pará
establishes that States should “refrain from engaging in any act or
practice of violence against women and ensure that their authorities,
officials, personnel, agents, and institutions act in conformity with this
obligation”. Therefore, if
every woman has the right to life, and the right to be free from violence,
and the State is denied the practice of violence against women, it seems
that the Convention of Belem do Pará prohibits the application of the
death penalty to women. There
is no discrimination against men or children.
It cannot be argued that it is “positive discrimination” or
“affirmative action”, because it only serves to preserve the inherent
rights of the individual. For
instance, pregnant women or women with children are entitled to rights
based solely on the fact of their exclusive female condition.
Thus, the same rights cannot be extended to men.
Positive discrimination is usually applied to bring about equality,
through temporary and proportional measures, to groups of people that
experience de facto inequality.
There is no inequality between men and women with regard to the
right to life. In any case,
the imposition of the death penalty is not a proportional measure, as we
will see later on. When it
comes to common rights–such as the right to life-we cannot argue
positive discrimination. All
persons are equal before the law. The
prohibition of the death penalty for women was based on both the female
condition and the human condition.
Article 24 of the American Convention affirms that all persons are
equal before the law, and consequently, they are entitled, without
discrimination, to equal protection of the law.
Although that Convention does not define discrimination, the IACHR
understands that discrimination includes distinction, exclusion,
restriction or preference which has the purpose or effect of nullifying or
impairing the recognition of human rights and fundamental freedoms in the
political, economic, social cultural or any other field of public life
(Manual on the Preparation of Reports on Human Rights, International
Covenant on Civil and Political Rights, Article 26.)
It is also important to note that Article 37(a) of the Convention
on the Rights of the Child prohibits the imposition of the death penalty
on minors under 18 years of age.
The above-mentioned Convention is considered a universal legal
instrument in the area of human rights.
(Only the United States and Somalia have failed to ratify it.)
Article 37 of the Convention on the Rights of Child states: “No child shall be subjected to torture or other cruel,
inhuman or degrading treatment or punishment.
Neither capital punishment nor life imprisonment without
possibility of release shall be imposed for offences committed by persons
below eighteen years of age.”
Although the U.S. has not ratified the Convention on the Rights of
the Child, it became a signatory to the Convention in February 1995, and
has thus accepted its legal obligations.
Article 18 of the Vienna Convention on the Law of Treaties
establishes that the States that have signed a treaty, but not ratified
it, shall refrain from engaging in any act that is contrary to its purpose
until it has decided to announce its intention of not becoming part of
that treaty. Despite the fact
that the U.S. has not ratified the Convention, the U.S. State Department
has already recognized that the Vienna Convention on the Law of Treaties
serves as a precedent for international treaty proceedings. The U.S. State Department considers the Convention a
declaration of customary law based on the Vienna Convention on the Law of
Treaties, which establishes the importance of treaties as sources of
international law as well as a method of peaceful development and
cooperation between nations, no matter what their Constitutions and social
As mentioned above, the imposition of the death penalty against
women, is not a case in which positive discrimination could be applied
because Article 37(a) of the Convention on the Rights of the Child aims to
preserve rights that are created not only for children
but for all human beings.
If that is the case, then Article 4 of the American Convention has
lost its previous meaning. Therefore
States that have signed and ratified it as well as other international
instruments cannot impose the death penalty upon any person, regardless of
gender or any other personal condition.
The issue will be examined under legal hermeneutics of positive
law. International law presupposes [normative] dispositions that are above
[the] State [law]. As set
forth by the illustrious Italian jurist, Norberto Bobbio, universalism–which
international law attempts to embody–reappears today, specially after
the end of WWII and the creation of the UN, no longer as a belief in an
eternal natural law [order], but as the will to constitute, in the end, a
single body of positive law of the social and historical development (as
natural law and the state of nature).
He also ponders that the idea of the single global State is the
final limit of the idea of the contemporary juridical universalism, that
is the establishment of a universal positive law (Cf. Teoria
do Ordenamento Jurídico, Universidade de Brasília,
1991, p. 164).
In the present case, we cannot allow a previous law with the same
content of a new law to supersede the new law.
That would be considered as antinomy, and therefore it has to be
solved. What are the rules
that should prevail? There is no doubt that they are incompatible.
But how could we solve the problem?
According to Mr. Bobbio, the criteria to solve an antinomy are the
following: a) chronological criteria, b) hierarchical criteria, c)
According to the chronological criteria the new law prevails over
the previous law–lex posteriori derogat priori. According to the hierarchy criteria,
international law prevails over national law.
Lastly, the specialty criteria could also apply in this case, since
it is a specific law with a specific purpose.
It is impossible to argue that death penalty as described in the
Section 2 of Article 4 of the American Convention is a specific law as
opposed to general law of the right to life.
It is also not possible to accept the idea that death penalty is
considered a particular penalty that does not entail a violation of right
to life or torture or any other cruel or inhumane treatment.
The Inter-American Court of Human Rights affirms that the
imposition of restrictions on the death penalty should be effected by
setting up a limit through an irreversible and gradual process, which
would be applied both in countries that have not abolished the death
penalty and in those that have done so.
(Advisory Opinion – OC-3/83)
The Court also understands that the American Convention is
progressive to the extent that, without deciding to abolish the death
penalty, it adopts certain measures to limit it and diminish its
application until it is no longer applicable.
It is worth reviewing the preparatory work of the American
Convention that illustrates the interpretation of Article 4.
The proposal to outlaw the death penalty made by several
delegations did not receive any opposing vote, despite the fact that the
majority of votes had not been reached.
The development of negotiations in the Conference can be reviewed
in the following declaration presented before the Plenary Session of
Completion and signed by 14 of 19 participants (Argentina, Costa Rica,
Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras,
Mexico, Nicaragua, Panama, Paraguay, Uruguay and Venezuela):
The delegations that sign below, participants of the Specialized Inter-American Conference on Human Rights, taking into consideration the highly prevailing feeling, expressed in the course of the debates on the abolishment of the death penalty, in accordance with the purest humanistic traditions of our peoples, solemnly declare our firm aspiration of seeing the application of the death penalty in the American context eradicated as of now, and our indeclinable purpose of effecting all possible efforts so that, in the short term, an additional protocol to the American Convention on Human Rights “Pact of San Jose, Costa Rica” might be adopted, consecrating the definitive abolition of the death penalty, and putting America once more in the forefront of the protection of fundamental human rights. (author’s translation from the original in Spanish, Acts and documents, OAS-serv. K-XVI-I2, Washington – DC, 1973, hereafter Acts and Documents, repr. 1978, Spanish version, p. 161, 195, 296 and 449/441).
In agreement with these assertions, the Commission’s Rapporteur
made clear, on this article, his firm tendency towards the abolition of
this penalty. (Acts and
documents, supra, n.296)
Moreover, the rule of law (Estado de derecho) implies, when punishment is
imposed, the knowledge of what the penalty actually means.
When the purpose of the punishment applied is not only retribution,
but the recuperation or rehabilitation of the convict, he or she knows
what will happen in his or her future.
If the punishment is purely retributive, as in a sentence imposing
imprisonment for life, the convict still envisages his future.
But if the convict is sentenced to death, the State does not point
to what the elimination of his being will bring him.
Science, with all its developments, has not managed, up to now, to
unveil the after-death: future life, with prize or punishment? Pure and
In this sense, the rule of law forbids the imposition of a penalty
whose consequences cannot be unveiled.
In truth, all punishment enacted by the legislator constitutes species
of sanctions, distributed according to a rational scale that attempts to
take into consideration a series of factors specific to each hypothesis of
The right and obligation to punish which belongs to the State
expresses itself in a variety of figures and measures, according to
gradual solutions, measurable in money or in amounts of time.
This gradual order is essential to criminal justice, for it would
not be realized without a superior criterion of equality and
proportionality in the distribution of punishment, for transgressors would
then receive more than their just deserts.
With the imposition of the death penalty, however, the
aforementioned serial harmony is abruptly and violently shattered; one
jumps from the temporal sphere into the non-time of death.
With what objective criterion or with what rational measure (for ratio
means reason and measure) does one shift from a penalty of 30 years
imprisonment or a life sentence to a death penalty? Where and how is
proportion maintained? What is the scale that ensures proportionality?
It could be argued that there is also a qualitative difference
between a fine and detention, but the calculus of the former can be
reduced to chronological criteria, being determined, for instance, in
terms of work days lost, so that it has a meaning of punishment and
suffering to the perpetrator, linked to his patrimonial situation.
In any circumstance, these are rational criteria of convenience,
susceptible to contrast with experience, that govern the passage from one
type of punishment to the other, whereas the notion of “proportion” is
submerged in face of death.
Summing up, the option for the death penalty is of such order that,
as Simmel affirmed, it emphasizes all
contents of the human life, and it could be said that it is inseparable
from a halo of enigma and mystery, of shadows that cannot be dissipated by
the light of reason: to attempt to fit it into the scheme of penal
solutions is equal to depriving it from its essential meaning to reduce it
to the violent physical degradation of a body (quoted by Miguel Reale, in O
Direito como experiencia).
Hence, the conclusion of the eminent philosopher and jurist Miguel
Reale: Analyzed according to its semantic values, the concept of
punishment and the concept of death are logically and ontologically
impossible to reconcile and that, therefore the “death penalty” is a “contradictio
in terminis” (cf. O Direito
como Experiencia, 2nd edition, Saraiva, São Paulo, Brazil)
The jurist Hector Faundez Ledesma writes on this topic: “as the
rights consecrated in the Convention are minimum rights, it cannot
restrict their exercise in a larger measure than the one permitted by
other international instruments. Therefore,
any other international obligation assumed by the State in other
international instruments on human rights is of utmost importance, and its
coexistence with the obligations derived from the Convention must be taken
into consideration insofar as it might be more favorable to the
“The same understanding”, continues the jurist, “is extensive
to any other conventional provision that protects the individual in a more
favorable way, be it contained in a bilateral or multilateral treaty, and
independently of its main purpose” (El Sistema Interamericano de
Protección de los Derechos Humanos, 1996, pp. 92-93).
Moreover, Article 29(b) of the American Convention establishes, in
the same line of thought, that no disposition of the Convention may be
interpreted in the sense of “restricting the enjoyment or exercise of
any right or freedom recognized by virtue of the laws of any State
Party”. In this sense, it
is opportune to refer to the IACHR report on Suriname, and the Advisory
Opinions 8 and 9 (of the Inter-American Court of Human Rights, 1987)
On this opportunity, the IACHR affirmed that the prohibition of
imposing the death penalty in cases where the offender was a minor at the
time of the crime was an emerging principle of international law.
Twelve years later there is no doubt that this principle is totally
ratification of the Convention on the Rights of the Child by 192 States,
where the death penalty of minor offenders is prohibited, is a irrefutable
proof of the consolidation of the principle (Cf. Report presented by
Amnesty International to the IACHR, in Washington, on March 5th,
It is true that the Universal Declaration on Human Rights does not
refer specifically to the prohibition of the death penalty, but
consecrates in its Article 3 the right of every person to his life,
liberty and security (the same provision can be found on Article I of the
American Declaration of the Rights and Duties of Man).
Adopted by the General Assembly of the United Nations in 1948,
under the guise of a recommendatory resolution, the Universal Declaration
is held–by many important scholars–to be a part of the body of
international customary law and a binding norm (jus cogens)–as defined in Article 53 of the Vienna Convention on
the Law of Treaties. Mutatis
Mutandi, it would be lawful to affirm that the Convention on the
Rights of the Child, by reason of its breadth and binding character, must
also be observed by the only two States that have not ratified it, as has
already been said, and has been recognized by the Department of State of
the United States of America.
It is convenient to observe, furthermore, that the European Court
of Human Rights, in its decision in the Soering Case–Jens Soering,
born in Germany, in detention in England and submitted to an extradition
procedure on behalf of the government of the United States pending charges
of murder committed in Virginia, a State that punishes this crime with the
death penalty–made opportune comments regarding Article 3 of the
European Convention, which establishes the interdiction of torture,
inhuman, cruel or degrading treatment or punishment.
The Court considered that the request could not be granted unless
the person subject to extradition would be guaranteed his or her rights
under Article 3 of the Convention (cf. Jurisprudence
de la Cour europeenne des droits de l’homme, 6th ed.
1998, Sirey, Paris, pp. 18 and ff.).
The Court concluded that the extradition to a country that applied
the death penalty did not constitute a breach of the right to life or to
the right to personal integrity since the death penalty is not, in itself,
explicitly prohibited by the European Convention. Nonetheless, the
possibility that the condemned could spend years waiting for the
moment–totally unpredictable, by the way–of the execution of the
punishment, the so called “death row syndrome”, was considered by the
Court as constituting a cruel treatment and, therefore, a breach of the
right to personal integrity.
It is, doubtlessly, an ambiguity: if there is a delay in imposing
the penalty, there is violation of the right; if the sentence is carried
out immediately, the State’s action will not be considered a breach of
the fundamental right to life.
This decision gives rise to the conclusion that little by little,
the traditional vision, the positivistic application of the law, is being
abandoned. Instead of a
literal interpretation of the texts in discussion, a teleological
hermeneutics is searched, in this case, of the European Convention, to
achieve the major conclusion that the death penalty should not be
permitted in any hypothesis.
Therefore, the absolute prohibition, in the European Convention, of
the practice of torture or of inhuman or degrading treatment or punishment
shows that article 3, referred to above, proclaims one of the fundamental
values of democratic societies. The
judgment underlines that provisions in the same sense can be found in the
International Covenant on Civil and Political Rights of 1966, and in the
American Convention on Human Rights of 1969, protecting, in all its
extension and depth, the right of the human person. The Court concludes
that it is an internationally approved norm.
It is true that the concept of inhuman or degrading treatment or
punishment depends upon a whole set of circumstances.
It is not for any other reason that one should have utmost care to
ensure the fair balance between the requirements of the communities’
general interest and the higher imperatives of the protection of the
fundamental rights of the individual, that take form in the principles
inherent to the European Convention taken as a whole.
Amnesty International has affirmed that the evolution of the norms
in Western Europe concerning the death penalty leads to the conclusion
that it is an inhuman punishment, within the meaning of Article 3 of the
European Convention. It is in
this sense that the judgment of the court in the Soering case
should be understood.
For its part, the Inter-American Court of Human rights has already
affirmed that “The right to life and
the guarantee and respect thereof by States cannot be conceived in a
restrictive manner. That
right does not merely imply that no person may be arbitrarily deprived of
his or her life (negative obligation).
It also demands of the States that they take all appropriate
measures to protect and preserve it (positive obligation).” (Cf. Repertorio
de Jurisprudencia del Sistema Interamericano de Derechos Humanos,
1998, Washington College of Law, American University, 1/102)
It was for the same reason that the European Court, in the
aforementioned Soering decision, considered that “Certainly,
‘the Convention is a living instrument which ... must be interpreted in
the light of present-day conditions"; and, in assessing whether a
given treatment or punishment is to be regarded as inhuman or degrading
for the purposes of Article 3 (art. 3), "the Court cannot but be
influenced by the developments and commonly accepted standards in the
penal policy of the Member States of the Council of Europe in this
field” (par. 102).
In fact, to determine whether the death penalty, because of current
modifications of both domestic and international law, constitutes a
treatment prohibited by Article 3, it is necessary to take into
consideration the principles that govern the interpretation of that
Convention. In this case,
both in the European Convention and in the American Convention, “No one
shall be subjected to torture or to inhuman or degrading treatment or
punishment” (Article 3 of the European Convention); “No one shall be
subjected to torture or to cruel, inhuman, or degrading punishment or
treatment.” (Article 5(2) of the American Convention on Human Rights).
In the same line of thought, in the case between Ireland and the
United Kingdom, the European Court had already decided that “The
Convention prohibits in absolute terms torture and inhuman or degrading
treatment or punishment, irrespective of the victim's conduct (…)
Article 3 (art. 3) makes no provision for exceptions (…)the only
relevant concepts are "torture" and "inhuman or degrading
treatment", to the exclusion of "inhuman or degrading
More recently, in its Advisory Opinion OC-16, of October 1st,
1999, requested by Mexico, the Inter-American Court of Human Rights
considered it opportune to state that, as regards the right to information
about consular assistance, as part of the due process guarantees, that
“in a previous examination of Article 4 of the American Convention, the
Court observed that the application and imposition of capital punishment
are governed by the principle that 'no one shall be arbitrarily deprived
of his life'. Both Article 6
of the International Covenant on Civil and Political Rights and Article 4
of the Convention require strict observance of legal procedure and limit
application of this penalty to "the most serious crimes." In
both instruments, therefore, there is a marked tendency toward restricting
application of the death penalty and ultimately abolishing it.” (par.
It is reasonable to ask what is still lacking for the universal
elimination of the death penalty? Simply the total recognition of the
rights emanated from the treaties.
In support of this idea, we find the concurring vote, in the
above-mentioned Advisory Opinion requested by Mexico, of Judge Cançado
Trindade, wherein relevant assertions are made concerning the hermeneutics
of law in face of the new protection demands.
In his concurring vote, the illustrious international legal scholar
and current President of the Court (1999/2001) underlines that “The very
emergence and consolidation of the corpus
juris of the International Law of Human Rights are due to the reaction
of the universal juridical conscience
to the recurrent abuses committed against human beings, often warranted by
positive law: with that, the Law (el
Derecho) came to the encounter of the human being, the ultimate
addressee of its norms of protection.” (Concurring vote, par.4)
The author of the concurring vote also warns that “In the same
sense the case-law of the two international tribunals of human rights in
operation to date has oriented itself, as it could not have been
otherwise, since human rights treaties are, in fact, living instruments,
which accompany the evolution of times and of the social milieu in which
the protected rights are exercised” (ibid,
In this sense the European Court on Human Rights, in its Tyrer
vs. United Kingdom Case (1978), when determining the unlawfulness of
physical punishment applied to teenagers in the Isle of Man, affirmed that
the European Convention on Human Rights is “a living instrument which
... must be interpreted in the light of present-day conditions”.
Finally, with the demystification of the postulates of the
voluntarist legal positivism, it has become clear that the answer to the
problem of the basis and the validity of general international law can
only be found in the universal legal consciousness, from the affirmation
of an idea of objective justice.
Furthermore, in a meeting of representatives of the human rights
treaty bodies, it was emphasized that conventional procedures are part of
a broad international system of human rights protection, which has–as a
basic postulate–the indivisibility of human rights (civil, political,
economic, social and cultural). To
ensure in practice the universalization of human rights, the meeting
recommended the universal ratification, up to the year 2000, of the six
core human rights treaties of the United Nations (the two International
Covenants of 1966; the conventions on the elimination of racial
discrimination and discrimination against women; the UN Convention against
Torture; and the Convention on the Rights of the Child), of the three
regional conventions on human rights (European, American and African), and
the ILO Conventions that concern basic human rights.
The representatives at the meeting warned that the non-compliance
by the states in respect of their obligation to ratify constituted a
breach of conventional international obligations and that the invocation
of state immunity, in this context, would result in a “double
standard” that would punish the States that duly complied with their
obligations. (Cançado Trindade, Tratado
de Direito Internacional dos Direitos Humanos, vol 1, Fabris Ed. 1997,
Article 27 of the Vienna Convention on the Law of Treaties of 1969
forbids the invocation of domestic law to justify the non-compliance of an
international obligation. Moreover, according to Article 31 of the Vienna
Convention: “A treaty shall be interpreted in good faith in accordance
with the ordinary meaning to be given to the terms of the treaty in their
context and in light of its object and purpose”.
It follows also that, according to the doctrine of “effet
utile”, the interpreter must not deny any term of a normative provision
its value in the text: no provision can be interpreted as not having been
In effect, the Inter-American Court, in its Advisory opinion
OC-14/94, has held that: “Pursuant to international law, all obligations
imposed by it must be fulfilled in good faith; domestic law may not be
invoked to justify nonfulfillment. These rules may be deemed to be general principles of law and
have been applied by the Permanent Court of International Justice and the
International Court of Justice even in cases involving constitutional
provisions [Greco-Bulgarian “Communities”, Advisory Opinion, 1930,
P.C.I.J., Series B, Nº 17, p.32; Treatment of Polish Nationals and Other
Persons of Polish Origin or Speech in the Danzig Territory, Advisory
Opinion, 1932, P.C.I.J., Series A/B, Nº 44, p. 24; Free Zones of Upper
Savoy and the District of Gex, Judgment, 1932, P.C.I.J., Series A/B, Nº
46, p. 167; and, I.C.J. Pleadings, Applicability of the Obligation to
Arbitrate under Section 21 of the United Nations Headquarters Agreement of
26 June 1947 (Case of the PLO Mission) (1988) 12, at 31-2, para. 47].”
In view of the considerations presented here, it can be said that
the norm of Article 4, section 2 of the American Convention, has been
superseded by the aforementioned conventional provisions, following the
best hermeneutic of the International Law of Human Rights, with the result
that it is prohibitive, for domestic law – even if older than the
American Convention–to apply cruel punishment, such as the death
This result also follows from the principle of the International
Law of Human Rights that all action must have as its basic goal the
protection of victims.
In light of these considerations, provisions such as Article 4(2)
of the American Convention on Human Rights should be disregarded, in favor
of legal instruments that better protect the interests of the victims of
violations of human rights.
Done and signed in the city of Santiago, Chile, April 4, 2001.
(Signed): Hélio Bicudo.
Press Release Nº 9/00, Washington, D.C. June 28, 2000:
Inter-American Commission on Human Rights deplores the execution of
Shaka Sankofa, formerly known as Gary Graham, in the state of Texas on
June 22, 2000. Mr. Sankofa was executed, despite formal requests by
the Commission for the United States to ensure a suspension of Mr.
Sankofa's execution pending the determination of a complaint lodged on
his behalf before the Commission.
1993, the Commission received a complaint on behalf of Mr. Sankofa,
alleging that the United States, as a Member State of the Organization
of American States, had violated Mr. Sankofa's human rights under the
American Declaration of the Rights and Duties of Man, including his
right to life under Article I of that instrument. In particular, it
was contended that Mr. Sankofa was sentenced to death for a crime that
he was alleged to have committed when he was 17 years of age, that he
was innocent of that crime, and that he had been subjected to legal
proceedings that did not comply with international due process
August 11, 1993, the Commission opened Case Nº 11.193 in respect of
Mr. Sankofa's complaint. Following a hearing on the matter on October
4, 1993, the Commission transmitted to the United States on October
27, 1993 a formal request for precautionary measures under Article
29(2) of the Commission's Regulations, asking that the United States
ensure that Mr. Sankofa's death sentence was not carried out, in light
of his pending case before the Commission. At that time, Mr. Sankofa's
execution, which had previously been scheduled for August 17, 1993,
was postponed pending the completion of domestic judicial procedures.
February 2000, the Commission was informed that Mr. Sankofa's domestic
proceedings were nearly completed, and that the issuance of a new
warrant of execution was imminent. Accordingly, in a February 4, 2000
letter to the United States, the Commission reiterated its October
1993 request for precautionary measures. Subsequently, in May 2000,
the Commission received information that Mr. Sankofa's petition before
the U.S. Supreme Court had been dismissed and that his execution was
scheduled for June 22, 2000. Accordingly, on June 15, 2000, during its
107th Period of Sessions, the Commission adopted Report Nº
51/00, in which it found Mr. Sankofa's petition to be admissible and
decided that it would proceed to examine the merits of his case. Also
in this report, the Commission again reiterated its request that the
United States suspend Mr. Sankofa's death sentence pending the
Commission's final determination of his case.
communication dated June 21, 2000, the United States acknowledged the
receipt of the Commission's February 4, 2000 communication and
indicated that it had forwarded the same to the Governor and Attorney
General of Texas. On June 22, 2000, however, the Commission received
information that the Texas Board of Pardons and Paroles declined to
recommend that Mr. Sankofa be granted a reprieve, commutation or
pardon, and that his execution was to proceed on the evening of June
22, 2000. Consequently, by communication of the same date, the
Commission requested that the United States provide an urgent response
to its previous request for precautionary measures. Regrettably, the
United States did not respond to the Commission's June 22, 2000
request, and Mr. Sankofa's execution proceeded as scheduled.
The Commission is gravely concerned that, despite the fact that Mr. Sankofa's case had been admitted for consideration by a competent international human rights body, the United States failed to respect the Commission's requests to preserve Mr. Sankofa's life so that his case could be properly and effectively reviewed in the context of the United States' international human rights obligations. In light of the irreparable damage caused by such circumstances, the Commission calls upon the United States and other OAS Member States to comply with the Commission's requests for precautionary measures, particularly in those cases involving the most fundamental right to life.”
Op.cit 2, p.92.