A/HRC/4/20
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dealing with the host of concrete situations discussed above, and a review of its jurisprudence
today suggests more precise conclusions. First, the Committee has thus far only found cases
involving murder not to raise concerns under the most serious crimes provision.131 Second, it
has consistently rejected the imposition of a death sentence for offences that do not result in the
loss of life.132 Third, the Committee’s conclusion that the death penalty may not be mandatory
even for murder suggests that a most serious offence must involve, at a minimum, intentional
acts of violence resulting in the death of a person.133 Indeed, the Committee and the
Commission have rejected nearly every imaginable category of offence other than murder as
falling outside the ambit of the most serious crimes.
53.
The conclusion to be drawn from a thorough and systematic review of the jurisprudence
of all of the principal United Nations bodies charged with interpreting these provisions is that the
death penalty can only be imposed in such a way that it complies with the stricture that it must be
limited to the most serious crimes, in cases where it can be shown that there was an intention to
kill which resulted in the loss of life.
D. The prohibition of the mandatory death penalty
54.
The Special Rapporteur has addressed communications to a number of Governments
noting that legislation dictating the mandatory imposition of the death penalty is prohibited under
international human rights law. This section more fully elaborates the law underpinning that
prohibition.134 The view of the Special Rapporteur has been informed by, and is generally
consistent with, the approach adopted by almost every judicial or quasi-judicial human rights
body in the world. This includes, in particular, the Commission on Human Rights135 and the
Human Rights Committee. In addition, the same approach has been adopted by a wide range of
national courts and other judicial bodies such as the Privy Council.136 The legal reasoning
underpinning these views is thus highly persuasive when it comes to interpreting international
human rights norms, whether they be based on treaty or customary law.137
55.
The intuitive argument against the mandatory death penalty is strong - surely, a human
facing death merits a chance to present reasons why he or she should be allowed to live - but
some still contend that this opportunity may be denied. The principal argument that has been
advanced in favour of the compatibility of mandatory death sentences with international
human rights law has been that, insofar as an offence carrying such a penalty covers only the
“most serious crimes”, all of the facts legally relevant to the permissibility of such a sentence
will be considered in the course of obtaining a conviction. To this it has been added that other
factors relevant to a sense of justice will be considered should the convict exercise his or her
“right to seek pardon or commutation of the sentence”.138 However, the key insight that has
emerged from the approach adopted by the world’s human rights bodies has been that the
proper application of human rights law - especially of its provisions that “[n]o one shall be
arbitrarily deprived of his life”139 and that “[n]o one shall be subjected to … cruel, inhuman or
degrading … punishment”140 - requires weighing factors that will not be taken into account in the
process of determining whether a defendant is guilty of committing a “most serious crime”.141
As a result, these factors can only be taken into account in the context of individualized
sentencing by the judiciary in death penalty cases.142
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