OPINION OF COMMISSIONER HELIO
Although I endorse the findings, reasoning and motives of my
fellow commissioners in this report, I would like to take the matter
further and express my understanding concerning the lawfulness of the
death penalty in the Inter-American System.
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, 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 1) 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 2).
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. The
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, the death penalty is accepted by 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
In June 2000, Shaka Sankofa, formerly known as Gary Graham, was
executed 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 execution 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
The Inter-American Convention on the Prevention, Punishment and
Eradication of Violence against Women (hereinafter Convention of Belem
do Para), approved in Belem do Para, 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 Para 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 Para
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.)
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 systems entail.
As in the case of the death penalty for women above mentioned,
this 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
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
International law entails mechanisms that are above the State.
According to the distinguished Italian jurist Norberto Bobbio, the
universal character of international
law emerges nowadays-after the Second World War and the creation of the
United Nations (UN)–no longer as eternal natural law, but as a means
of constituting positive law
of social and historic development (as natural law and the state of
nature). Mr. Bobbio defends
the idea of a global State and the idea-limit of legal and contemporary
universality, that is, a universal positive law.
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 an 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
It is impossible to argue that the 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 the 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):
In agreement with these assertions, the Commission’s Rapporteur
made clear, in 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 simple elimination?
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 unlawfulness.
The right and obligation to punish that 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
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 "death penalty" is
a "contradictio in terminis"
(cf. O Direito como Experiencia,
2nd edition, Saraiva, Sao Paulo, Brasil)
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 individual."
"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.
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 the 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 on Human Rights, 1987).
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 consolidated. The
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
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
is convenient to observe, furthermore, that the European Court of Human
Rights, in its decision in the Soering Case–ens 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.).
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.
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.
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.
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.
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.
its part, the Inter-American Court on 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,
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).
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).
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
punishment". (par. 163-164).
recently, in its Advisory Opinion OC-16, of October 1st,
1999, requested by Mexico, the Inter-American Court of Human Rights
considered it instructive to state, 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. 134).
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.
support of this idea, we find the concurring vote, in the
above-mentioned Advisory Opinion requested by Mexico, of Judge Cancado
Trindade, wherein relevant assertions are made concerning the
hermeneutics of law in face of the new protection demands.
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).
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, par. 10).
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
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
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 meeting warned that
the non-compliance of states respecting 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. (Cancado Trindade, Tratado
de Direito Internacional dos Direitos Humanos, vol 1, Fabris Ed.
1997, pp. 199-200).
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
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]. (par. 35).
view of the considerations here presented, 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
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
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.
When the preliminary merits report in this matter was approved
pursuant to Article 50 of the Convention, the Commission’s
composition included Prof. Hélio Bicudo, who at that time adopted a
separate opinion. Accordingly, Prof. Bicudo’s separate opinion has
been included with the final report in this case approved under
Article 51 of the Convention, even though Prof. Bicudo’s term as a
Commission Member expired on December 31, 2001.
Press Release Nº 9/00, Washington, D.C. June 28, 2000: "The
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 standards.
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
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".
Teoria do Ordenamento
Juridico, Universidade de Brasilia, 1991, p. 64.
Op. cit 2, p.92.