Japan’s legal obligations on the use of the death penalty
3. Capital punishment cannot be imposed on people who were under 18 at the time the crime was committed. It cannot be carried out on pregnant women.
4.Tere must be a right to seek pardon or commutation before the sentence is executed (see below at page 13 for commentary on Article 6(4)).
Te case law of the HRC identifies when capital punishment and other deprivations of life is considered contrary to other provisions of the ICCPR. Tese include a breach of the fair trial provisions or where imposition of the death penalty can be considered as a form of inhuman or degrading treatment. Tese provisions cannot be read in isolation as a complete code. Under the ICCPR, as well as the regional Conventions, there are Optional Protocols to abolish the death penalty without reservation. As stated above, international human rights scholars agree that this indicates the direction of travel; the death penalty should be restricted in its application until its final abolition.
Whilst retention of the death penalty is permitted, its use cannot by itself constitute cruel or unusual punishment or torture or inhuman treatment and punishment. However, use of the death penalty may become an arbitrary violation of the right to life if capital punishment is imposed in circumstances that breach other rights under the ICCPR and, for present purposes, those other rights are most significantly the right to a fair trial and the prohibition on torture.
The scope of the death penalty
Article 6(2) of the ICCPR restricts the imposition of the death penalty to the ‘most serious crimes’. Te first of the Safeguards Guaranteeing Protection of the Rights of those Facing the Death Penalty14 emphasises that the death penalty may only be imposed for ‘intentional crimes with lethal or other extremely grave consequences’.
According to the recent case law of the Human Rights Committee, the definition of the ‘most serious crimes’ should be interpreted as narrowly as possible. Tere is a strong argument that capital punishment should [pending abolition] only be imposed for the most serious offences of intentional homicide, but it may not be mandatory for such crimes. Te Committee has said that the death penalty should not be enforced for crimes that do not result in the loss of human life, such as drug- related or economic crimes, which is contrary to the ICCPR. In order to clarify the vaguely defined term ‘the most serious crimes’ and to give effect to its contemporary meaning, Professor Roger Hood has suggested that the first of the Safeguards should be re-written to limit the death penalty ‘to intentional murder, but only of the gravest kind, and ensure that it is never mandatorily enforced’.15
Japanese law and practice
In Japan as of 2012, 19 crimes are eligible for capital punishment, including the following seven crimes for which a death sentence is possible, even if the offence does not result in the loss of life.16 • Insurrection (Penal Code Article 77)
14 15 16
Note 6 above, Article 3
See Roger Hood, Statement to the International Commission against the Death Penalty, October 2010 Te other 12 capital offences involve murder or criminal conduct resulting in death
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