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The Death Penalty in Japan


the offence and not contrary to the present Covenant…Tis penalty can only be carried out pursuant to a final judgment rendered by a competent court. (emphasis added)


Although an exception to the right to life, Article 6 of the ICCPR lists various safeguards in the application and implementation of the death penalty. It may only be imposed for the most serious crimes, it cannot be pronounced unless rigorous procedural rules are respected and it may not be imposed on pregnant women or to individuals for crimes committed under the age of 18.


Article 6(6) goes on to place the death penalty in its real context and assumes its eventual elimination:


Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.


Professor William A. Schabas, has noted that these ‘important references to abolition’ were added to the draft text of the ICCPR when it was under consideration at the Tird Committee of the UN General Assembly11


. He goes on to explain that the reference in Article 6(2) “indicated not


only the existence of abolitionist countries but also the direction which the evolution of criminal law should take”, while the reference in Article 6(6) “ … set a goal for parties to the covenant. Te travaux préparatoires indicate that these changes were the direct result of efforts to include a fully abolitionist stance in the covenant. Tey represented an intention... to express a desire to abolish the death penalty, and an undertaking by states to develop domestic criminal law progressively towards abolition of the death penalty”.12


Professor Roger Hood has also characterised the exception to the right to life in Article 6(2) of the ICCPR as a creature of its time and in no way a permanent justification for the retention of the death penalty when read alongside Article 6(6) which makes abolition the ultimate goal. With the drafting taking place as early as 1957, when there were still only a very small minority of abolitionist states, Article 6 was a compromise. In order to achieve agreement, an exception had to be made in Article 6(2) allowing for the death penalty for those countries that had not yet abolished it.


In 1971, the United Nations General Assembly endorsed an approach of progressive restriction of the death penalty with a view to its eventual abolition. Furthermore, in its General Comment on Article 6 of the ICCPR, the UN Human Rights Committee stated that Article 6 “refers generally to abolition [of the death penalty] in terms which strongly suggest... that abolition is desirable. Te Committee concluded that all measures of abolition should be considered as progress in the enjoyment of the right to life...”.13


Te following limitation on capital punishment can be noted from Article 6:


1. It must be limited to the gravest of crimes and the possibility of retention shall not be used to delay or prevent eventual abolition.


2. Only courts of competent jurisdiction can impose the death penalty for conduct that was a capital offence at the time of its commission.


11 12 13


Te Tird Committee of the UN General Assembly held 12 meetings between 13 November and 26 November 1957 William A. Schabas, Te Abolition of the Death Penalty in International Law, 3rd ed., Cambridge University Press, 2002, at p. 70 General Comment 6 on Article 6 of the International Covenant on Civil and Political Rights, adopted on 27 July 1982, paragraph 6


6


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