OPINION OF COMMISSIONER HÉLIO BICUDO
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 in 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
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 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, 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
There is a contradiction among the aforementioned articles
which repudiate torture, cruel, inhumane or degrading punishment or
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).
10. 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 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 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
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.
15. The Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (hereinafter “Convention of Belém do Pará”), approved in Belém 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 Belém 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 Belém 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,
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
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 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
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 purpose.
28. It is impossible to argue that the death penalty as described in Section 2 of Article 4 of the American Convention is a specific law as opposed to the 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 the 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 –
30. 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,
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 government 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, Sâo
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 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).
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
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 5th, 1999).
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,
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
punishment". (par. 163-164)
More recently, in its Advisory Opinion OC-16, of October 1,st
1999, requested by Mexico, the Inter-American Court on 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."
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 Cancado
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, par.
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
voluntarism 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 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)
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 written.
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]." (par. 35).
In 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 penalty.
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.
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
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