CONCURRING 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 at the Ninth International
American Conference, which took place in Santa Fe, Bogota 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, 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.
8. 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 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
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 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.
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):
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 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
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
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, 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
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.
46. 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.).
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.
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
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, 1/102)
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
recently, in its Advisory Opinion OC-16, of October 1st,
1999, requested by Mexico, the Inter-American Court on 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. 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,
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”.
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
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. (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 contest 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.
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 presented here, it can be said that the norm
of article 4, section 2 of the Inter-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
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 by the Inter-American Commission on Human Rights, in the city of Washington, D.C., October 15, 2001. (Signed): Hélio Bicudo.
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:
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.