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Content notice: this article contains mention of death and sexual abuse. 

We have certainly come a long way from the enthralling public displays of boiling, burning and beheading criminals, but perhaps the death penalty hasn’t actually evolved as much as we’d like to think. While the deed itself, for the most part and in most places, has become more or less ‘humane’, one could argue that it remains equally as barbaric in principle and practice. 

Currently, Article 6 of the International Covenant on Civil and Political Rights (ICCPR) remains the authority on the death penalty. With the introduction of the auxiliary General Comment 36 and the ICCPR’s Second Optional Protocol, a global desire for abolishment has been made clear. However, uprooting such a contentious practice that is so deeply enshrined in society (while respecting state sovereignty) is, as always, a colossal and exceedingly complex challenge for the United Nations (UN) and international human rights law in general.

So, while global abolishment remains just out of reach thanks to a few stubborn retentionist states, this article aims to challenge the inherent iniquities of capital punishment and highlight the ways in which the death penalty enables states to target minorities and abuse human rights through gross miscarriages of justice. 

Minorities

While this issue is not unique to the death penalty, it must be appreciated that by continuing to legalise it, we give states the opportunity to exploit legal systems in order to target minority groups – be it a disproportionate representation of them on death row or their outright persecution.

Women 

It is commonly known that women make up only a very small portion of the inmates on death row. However, what is less known is that women are uniquely targeted by the death penalty in practice when compared to men.

Perhaps nothing demonstrates this better than the rather disconcerting example of ‘sorcery’. To this day, a number of countries like Saudi Arabia, Iran and Nigeria have not only criminalised sorcery or ‘witchcraft’, but have also made it punishable by death. While the relevant legislation does not substantively discriminate based on gender, it nonetheless does so in effect; ‘routinely operat[ing] in a manner that discriminates against women’, and not only women, but young girls as well. Moreover, sorcery laws have and continue to be used by executing states as an alternative avenue to punish other transgressive and condemnatory behaviours – a common phenomenon in places like Saudi Arabia. These behaviours are of course, typically concerning sexuality and the corresponding sociocultural norms about what is befitting of a woman. 

Extramarital sex or ‘adultery’ is another issue in its own right. This is particularly pertinent in Islamic nations where criminalisation of Zina (unlawful sexual intercouse as defined in the Quran) has made its way into domestic law. We’ve seen cases as recent as 2018 and 2022, where women have been stoned to death on charges of extramarital sex in Iran and Sudan, respectively. 

Ethno-Religious Minorities

In some parts of the world, the death penalty has become a tool in which people from ethnic or religious minority groups can be rooted out. Blasphemy (disrespect for God or religion) and apostasy (abandonment or renunciation of religious beliefs) remain the only two religious offences punishable by death. Pakistan is currently the most prolific executor for these crimes, and rather clearly exemplifies how capital punishment can be disproportionately exploited against minorities. Despite accounting for less than 5% of their total population, individuals from religious minority groups make up 50% of those on death row for blasphemy. Most notably are the Ahmadi Muslims, who represent a mere 0.2% of the population, but 33% of those on death row.

As was the case with sorcery and women, states have cleverly manoeuvred around legal constraints to persecute and ultimately execute ethno-religious minorities in other duplicitous ways. We see this in places like Iran for instance, where Kurds account for more than half of political prisoners and Baluchi’s making up majority of drug-related death sentences. Under the guise of security related, political or any other crimes really, states can enact the death penalty against these vulnerable populations at will and without the international criticism and condemnation that typically follows.

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Extrajudicial Killings

Amongst all the discourse surrounding the death penalty, we seem to avoid considering it beyond its textbook meaning and direct practice. Namely, there is an insufficient acknowledgement of the way in which the death penalty and extrajudicial killings (deliberate killing without the lawful authority granted by judicial proceedings) are inextricably tied. This condemnable practice is arguably the direct result of legalising the death penalty, and while these practices are indeed not legally equivalent, they are functional counterparts.  

To understand this better, consider the ‘brutalisation effect’. This is the idea that state sanctioned killing (i.e., the death penalty) subconsciously promotes a culture of violence, empowering people to take justice into their own hands. This leads to both condoning and justifying violence against people who have been associated with behaviour deemed punishable by death. The ramifications of this are most problematic for the treatment of minority groups, further encouraging the gross public violence and damnation they are so often subjected to. The full effect of the death penalty simply cannot be understood without considering extrajudicial killings, whether by state or non-state actors. In terms of non-state actors, this encompasses everything from extremist groups to ‘honour killings’, where people will murder members of their own family in order to restore honour – a practice typically suffered by women and sexual minorities. It should be noted that states typically turn a blind eye to these ‘non-state’ acts of violence, and can be said at times to even encourage them.

Human Rights Violations

Along with facing persecution, and ultimately the execution block, minorities will also commonly endure gross violations of human rights. In saying that, these injustices are most certainly not limited to minorities, and in some places is the reality for all alleged offenders.

At its core, the death penalty is a show of force commonly called upon to push political agendas and to do so with impact. It should be appreciated, therefore, that as a by-product states are willing to perhaps overlook the safeguards which supposedly ensure the death penalty’s proper use and maintain human rights. Of course, when a leader wants to send a message, and quickly, these so-called safeguards, or due processes, aren’t exactly at the top of the priority list.

Take the war on drugs for example; a movement that has taken an aggressive hold around the world, particularly across Asia. One of the most infamous players in this ‘war’ is former Philippine President Rodrigo Duterte. Certainly no stranger to controversy, Duterte was a fervent supporter of the death penalty, with a slew of absurd quotes to prove it. Indeed, he said “I don’t care about human rights, believe me…there is no due process in my mouth”. And so, while Duterte failed to reintroduce the death penalty, his words (while extremely animated) ring true for a number of retentionist states who are willing to overlook basic human rights if it means getting things done. Ultimately, these attitudes work to expose the fragility of the protections which are supposed to prevent rights violations from occuring while sentencing people to death. 

From a different angle, let’s now consider Iran. Iran is perhaps one of, if not the, most notorious and controversial executors. One of the more recent examples of this was in 2022 with the execution of four young men following the murder of a government official during the Mahsa Amini protests. Among them was 22 year old Mohammad Mehdi Karami. After his arrest, Karami was subjected to unimaginable abuse during his so-called interrogation process. He spoke of the guards who “touched his genitals everyday and threatened to rape him” as well as being beaten unconscious and left for dead. 

Torture, be it psychological, physical or sexual, run rampant in the interrogation rooms and is standard practice amongst a number of retentionist states. Forced and false confessions are anything but rare as states continue to put on these shows of ‘due process’ and justice to masquerade as fairness. In reality, violations of human rights like those found in Article 14 (the right to a fair trial) and Article 7 (the right of freedom from torture) of the ICCPR are regularly contravened during processing of death penalty cases and to such a degree that we can no longer overlook the way in which it inherently enables such abuses.

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Indeed, the sham trial that followed Karami’s arrest was an affront to due process. After his state appointed attorney interrogated as opposed to defending him, Karami was left with 15 minutes to defend himself instead.

It is worth mentioning that while Iran bears the brunt of the bad press, it is certainly not alone. Bahrain is just one other recent example of governments putting on a ‘trial’ show to justify the execution of likely innocent people. And to those who say, there’s always a few bad apples in the bunch, that simply is not the issue here. 

“No judiciary, anywhere in the world, is so robust that it can guarantee that innocent life will not be taken, and there is an alarming body of evidence to indicate that even well-functioning legal systems have sentenced to death men and women who were subsequently proven innocent.” – Zeid Ra’ad Al Hussein, UN High Commissioner for Human RIghts. 

Again, these sorts of violations are not unique to the death penalty, however they have in some places become inextricable with its use. Perhaps it may be easier to think of this dilemma in terms of ‘herd immunity’. In order to ‘protect’ the immunocompromised (in this case the morally compromised) from exploiting the death penalty, we must first remove the disease (the death penalty) altogether. 

Conclusion

The question now becomes; how can we continue justifying the use of the death penalty when we know the ways in which it systematically exploits vulnerable populations and abuses the basic human rights of all? The idea of reciprocal justice that the death penalty supposedly champions is aged and simply ineffective. More often than not, the ‘justice’ it achieves is only shrouded in more injustices, leaving in its wake a culture of violence and brutality, typically aimed in the wrong direction. 

With the plethora of alternative sentencing which removes actually dangerous individuals from society while prioritising rehabilitation and indeed mercy, any argument for its functional purpose is likely now redundant. As these arguments are scrutinised and the mask falls away, we see the true foundation for the death penalty’s support – revenge. But we must not forget Gandhi’s words,  ‘an eye for an eye only makes the whole world blind’.