Written by Ionel Zamfir,
The European Union is strongly opposed to the death penalty in all circumstances, and fighting it is a foremost priority of its external human rights policy. While most countries in the world have abolished capital punishment, death sentences continue to be handed down and carried out in a number of countries. The Union uses its diplomatic and political weight to encourage these countries to join the abolitionist ranks, or at the very least to respect international minimum standards. It funds campaigns to increase awareness of the need to end capital punishment, and restricts trade in substances that could be used for executions.
The controversy around capital punishment
In history, the death penalty was applied across the world, in various cultures and religions, for the most serious crimes such as murder, and sometimes also for more trivial ones. For more than two centuries, it has been a matter of vivid philosophical and ethical controversy whether it should be preserved or abolished. Arguments have focused on delivering appropriate retribution and deterring other criminals, among other things. After the end of the Second World War, the abolitionist movement gained momentum, driven by increased public awareness about the value of life and the right to life, the dignity of human beings, the risk of judicial errors and the fact that execution involves torture. A milestone was reached with the adoption by the Council of Europe in 1982 of Protocol No 6 to the European Convention on Human Rights – the first legally binding instrument abolishing the death penalty in peacetime. This protocol has been ratified by 46 of the Council of Europe’s 47 member states; all but Russia. A few years later, in 1989, the first international document aiming at worldwide abolition was adopted by the UN: the Second Optional Protocol to the International Covenant on Civil and Political Rights. To date, it has been ratified by 86 states.
Today, the abolitionist position has prevailed worldwide, with most countries being abolitionist (106 countries for all crimes, plus 8 for ordinary crimes only, as of July 2018). The latest countries to abolish the penalty, in 2017-2018, were Burkina Faso and Guatemala (for ordinary crimes only), and Guinea and Mongolia (for all crimes). In 2018, the Roman Catholic Church decided that the death penalty is inadmissible under all circumstances. A number of countries are considered ‘abolitionist in practice’ (28 according to Amnesty International, but the number could be higher depending on how this is defined). Around 56 states still retain the penalty, but fewer than half of those actually carry out executions (23 in 2016 and 2017). The trend towards abolition is not linear. In the United States, support for capital punishment is growing again, after a sharp decline from 1996 to 2016, with 54 % of persons surveyed in favour in 2018. In India, capital punishment has recently been extended to certain types of rape after a series of cases that shocked public opinion across the country and in the wider world.
European Union position
All EU Member States have abolished the death penalty. They are bound by the European Convention on Human Rights (ECHR), particularly its Article 2, which states that ‘Everyone’s right to life shall be protected by law’, and by its Protocols No 6 and No 13. The European Union is required by its Treaties to respect and promote human rights in all its internal and external policies. The EU Charter of Fundamental Rights echoes the ECHR in underlining the inalienable right to life in its Article 2. The EU institutions are obliged to take this into account, both in internal and external policies.
To this end, the EU pursues the abolition of the death penalty in the world as a matter of the utmost priority. The EU Action Plan on Human Rights and Democracy (2015-2019) includes an objective (No 15) on combatting torture, ill-treatment and the death penalty. In order to streamline all its efforts to fight the death penalty across the world, the Council adopted EU guidelines on death penalty in 1998. These were the first human rights guidelines ever adopted by the Council. They were subsequently updated in 2001, 2008 and 2013. The first point of the guidelines states that, ‘The European Union has a strong and unequivocal opposition to the death penalty in all times and in all circumstances.’ The guidelines set out a list of actions the EU should undertake, such as raising the issue of the death penalty in EU dialogues and consultations with third countries, intervening in legal proceedings on a case-by-case basis (as amicus curiae, or otherwise), encouraging states to ratify the relevant international texts, providing assistance to civil society to promote abolition, and providing assistance in the legal field to enhance the right to a fair and impartial trial. According to these guidelines, in countries that still retain the death penalty, the EU should advocate the establishment of a moratorium, and if this is not possible, for its increasingly restrictive use and for the respect of minimum standards, in line with international law.
In its trade policy, the EU has adopted legislation that prohibits trade in goods that can be used for torture or execution. Such goods include barbiturate agents, used in lethal injections for the execution of human beings. The EU ban caused a shortage of lethal injection materials and considerable hurdles for executions in the United States. The EU contributed to the launch in 2017 of a new global alliance, whose aim is to ban trade in goods that can be used for torture or executions. The Alliance for Torture-Free Trade is an initiative of Argentina, the European Union and Mongolia, bringing together countries from around the world to end the trade in goods used for capital punishment and torture.
The EU also uses its trade policy to encourage countries to comply with their international human rights obligations. The GSP+ system provides trade preferences to countries that ratify and comply with a range of international conventions, including the International Covenant on Civil and Political Rights, which outlines minimum standards on the use of the death penalty. The 2018 European Commission GSP+ report on Pakistan for example highlighted that the application of the death penalty there remains a grave concern.
The EU is the largest donor in the fight against the death penalty worldwide. According to the Commission, from 2008 to 2016, the European Instrument for Democracy and Human Rights (EIDHR) allocated more than €22 million to projects supporting the fight against the death penalty around the world. The instrument funds civil society organisations that advocate abolition and the establishment of moratoria and, where the death penalty still exists, the observance of international minimum standards.
The EU raises its opposition to the death penalty in international fora, where it aims to build alliances to this end. It has supported the adoption in the UN General Assembly of several resolutions on a moratorium on the use of the death penalty (the last one in December 2018, with the support of 121 nations).
European Parliament position
The European Parliament is strongly opposed to the death penalty, a position it has expressed repeatedly in various resolutions, for example in its December 2018 resolution on the annual EU report on human rights and democracy in the world in 2017. In its 2015 resolution on the death penalty, the Parliament expressed its strong opposition to this type of punishment, and condemned its use to suppress opposition, or on grounds of religious belief, homosexuality or adultery. It also expressed its conviction that death sentences fail to deter drug trafficking or to prevent individuals from falling victim to drug abuse. It has also addressed the death penalty in debates and resolutions on individual countries such as on the death penalty in Indonesia (2015) and on executions in Kuwait and Bahrain (2017).
Read this ‘at a glance’ note on ‘The death penalty and the EU’s fight against it‘ on the Think Tank pages of the European Parliament.