Abstract

Excerpted From: John D. Bessler, International Abolitionist Advocacy: the Rise of Global Networks to Advance Human Rights and the Promise of the Worldwide Campaign to Abolish Capital Punishment, 34 Minnesota Journal of International Law 1 (Spring, 2025) (643 Footnotes) (Full Document)

The modern international human rights movement began after the Holocaust and World War II when that war and grotesque Nazi atrocities, leading to the killing of six million Jews and millions of others, galvanized support for the founding of the United Nations. “The prolonged, bloody horror of World War II and the Holocaust,” Professor Harold Koh of Yale Law School observes, “triggered a global revulsion against death that helped prompt the rise of the international human rights movement.” Even before the U.N.'s creation in 1945, various human rights were shaped by transnational movements and nongovernmental organizations (“NGOs”) of an international character. For example, in 1888, American suffragists started the International Council of Women (“ICW”) to celebrate the fortieth anniversary of the first women's rights convention in Seneca Falls, New York, in 1848.

NGOs have played a key role in advancing human rights around the world. “[T]he first international NGOs,” one source recalls, “were the Christian churches and their spiritual orders.” “Other examples for 'early’ NGOs,” that source notes, “are the British and Foreign Anti-Slavery Society (1823), the International Committee of the Red Cross (1863), the International Worker's Association (1864), the International Peace Bureau (1892), and the Union of International Associations (1907).” Scholars Margaret Keck and Kathryn Sikkink discuss how international activism shaped both the anti-slavery and women's suffrage movements. “The international campaign,” they observe of the latter movement, “is a key part of the explanation of how votes for women moved from unimaginable to imaginable and then to standard state behavior.” In 2023, William Schabas, a leading advocate for the death penalty's global abolition, summarized the remarkable rise of NGOs: “Today, many of the major human rights organizations active on the international scene are headquartered in the capital cities of Europe and North America. These organizations did not exist in the 1940s.” “Then,” Schabas emphasized of the post-war period, “it was African American organizations that took the lead in bringing human rights petitions and campaigns to the doors of the United Nations.” The NAACP's co-founder, W.E.B. Du Bois, and Walter White and Mary McLeod Bethune represented the NACCP--a leading American civil rights organization--at the 1945 San Francisco Conference that led to the United Nations Charter, with one scholar emphasizing that “the NAACP had surveyed 151 African American organizations for their views and those organizations had urged the NAACP to push for an end to racial discrimination and the abolition of colonialism.”

Some countries, such as Saudi Arabia, continue to use executions and gruesome corporal punishments, including flogging and amputation of limbs. “In many countries such as Saudi Arabia, Sudan, Yemen, Mali, and Iran, amputation is used as a form of punishment,” one academic has written, adding that, “[i]n 2011, Amnesty International reported at least six cross-amputations (right hand and left foot) for highway robbery in Saudi Arabia, and, in 2012, it reported seven amputations in Mali for theft and robbery.” “In interpreting Sharia,” another scholar writes, “Indonesia, Iran, Libya, Nigeria, Pakistan, Saudi Arabia, Yemen and several other States have regarded corporal punishment as a normal penalty for a wide variety of offences, including flogging and whipping for adultery and drinking alcohol, and the amputation of limbs for theft.”

Western penal systems, however, have abandoned public executions and various non-lethal corporal punishments, with many countries also abolishing the death penalty or significantly restricting its use. “[S]ince 1997, through Italy's initiative, and since 1999 through the EU's endeavor,” scholars Christian Behrmann and Jon Yorke explain in their article about the death penalty's abolition in the European Union, “the United Nations Commission on Human Rights ('UNCHR’) approved a resolution calling for a moratorium on executions with a view to completely abolishing the death penalty.” A 2011 report of the Inter-American Commission on Human Rights, a 2015 U.N. publication titled Moving Away from the Death Penalty, and ongoing academic efforts to have the death penalty declared a violation of international law show the resolve of U.N. officials and abolitionists to eliminate the death penalty's use, with two-thirds of the world's countries now abolitionist de jure or de facto.

On December 17, 2024, the United Nations General Assembly adopted its tenth resolution calling for a global moratorium on the death penalty. The vote: 130 votes in favor out of 193 U.N. member states (five more than in a 2022 vote), 32 votes against (five fewer than in 2022), 22 abstentions, and 9 absent. After the landmark vote, Chiara Sangiorgio--an Amnesty International expert--observed: “This vote marks a major turning point for countries around the world and proves that UN member states are steadily moving closer to rejecting the death penalty as a lawful punishment under international human rights law.” As Sangiorgio emphasized: “The support from states for the death penalty looks very different from when international treaties allowing for its retention were first adopted. The unprecedented support for this resolution shows that the global journey towards abolition is unstoppable.” It was in 1994--thirty years earlier--that the Italian government first presented a resolution to the U.N. General Assembly calling for a global moratorium on the death penalty. That resolution, originating from Hands Off Cain, an NGO, lost by eight votes.

Although an international movement to halt executions worldwide and to abolish the death penalty has gained considerable momentum in recent decades, executions are still carried out in a dwindling number of countries and a declining number of American states. Official figures are not reported by either country, but the People's Republic of China and the Islamic Republic of Iran are widely believed to be the nations where the most executions take place. Amnesty International estimates that China carried out “thousands” of executions in 2023, and Iran executed at least 901 people in 2024. Indeed, public executions still occur in some locales. Methods of execution used in 2023 were beheading (Saudi Arabia), hanging (Bangladesh, Egypt, Iran, Iraq, Kuwait, Singapore, and Syria), lethal injection (China, United States, and Vietnam), and shooting (Afghanistan, China, North Korea, Palestine, Somalia, and Yemen).

When the U.N. General Assembly adopted the now widely-ratified International Covenant on Civil and Political Rights (“ICCPR”) in 1966, its sixth article prohibited the death penalty for juvenile offenders and pregnant women but nonetheless provided: “In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime ....” In the United States, which entered a reservation to the ICCPR when ratifying it, the annual number of death sentences and executions have declined substantially in the past few decades. After a seventeen-year pause at the federal level, thirteen federal executions took place during the first Trump Administration, but no federal executions took place during the Biden Administration and, near the end of his term in office, President Biden commuted more than thirty death sentences. At times, American executions-- now conducted predominantly but not exclusively by lethal injection and regularly botched been carried out using lethal gas, the method Nazis used to commit mass murder during the Holocaust.

The anti-death penalty movement has made tremendous strides since the adoption of the Universal Declaration of Human Rights (“UDHR”), with the world recently celebrating the UDHR's 75th anniversary. Four minutes before midnight on December 10, 1948, the U.N. General Assembly voted forty-eight to zero, with eight abstentions, for the UDHR. The UDHR's preamble recites “that human rights should be protected by the rule of law,” while Article 3 of the UDHR protects “the right to life, liberty and security of person.” And that article did so without mentioning the death penalty as an exception--an intentional drafting choice. The UDHR's drafting committee had initially considered a proposal in 1947 that would have recognized the death penalty as an exception to the right to life. That draft provision, modeled on the U.S. Constitution's Fifth Amendment, read: “Everyone has the right to life. This right can be denied only to persons who have been convicted under general law of some crime to which the death penalty is attached.”

Despite Article 3's broadly worded protection, an active abolitionist movement in proximity to the UDHR's promulgation, and the fact that a number of countries, including Germany, abolished the death penalty in the post-World War II period, capital punishment has stubbornly persisted in various nations. It persists even though multiple U.N. secretary-generals and other U.N. officials have repeatedly called for the death penalty's abolition. For example, U.N. Secretary-General Kofi Annan (1938-2018) once asked: “Can the state, which represents the whole of society and has the duty of protecting society, fulfill that duty by lowering itself to the level of the murderer, and treating him as he treated others?” Annan's clear answer: “The forfeiture of life is too absolute, too irreversible, for one human being to inflict it on another, even when backed by legal process. And I believe that future generations, throughout the world, will come to agree.”

With capital punishment dating back centuries and 1,153 documented executions taking place worldwide in 2023, a figure that, notably, does not include numerous Chinese executions, the death penalty is still inflicted in scattered locales across the globe despite substantial opposition by many U.N. member states and NGOs. Highly coordinated anti-death penalty efforts began in earnest at the U.N. in the early 1970s, then progressed in the 1980s and in the decades thereafter, country by country, through collective action, as civic leaders, lawmakers, and NGOs spoke out against the practice.

Both individuals and NGOs contributed to the effort. In 1970, Arthur Goldberg, a former Associate Justice of the U.S. Supreme Court and U.S. Ambassador to the U.N., and his former law clerk, Alan Dershowitz, argued that the death penalty should be declared a cruel and unusual punishment. Just a year later, in 1971, the U.N. General Assembly passed the following resolution: “In order to guarantee fully the right to life, provided for in Article 3 of the Universal Declaration of Human Rights, the main objective to be pursued is that of progressively restricting the number of offenses for which capital punishment may be imposed, with a view to the desirability of abolishing this punishment in all countries.” Not long thereafter, in the 5-4 Furman v. Georgia (1972) decision, a six-sentence per curiam opinion with all nine justices writing separately, the U.S. Supreme Court declared America's death penalty to be a violation of the U.S. Constitution's Eighth and Fourteenth Amendments holding the Supreme Court retreated from in Gregg v. Georgia (1976), when the Court held that Georgia's death penalty was constitutional.

The abolitionist movement made significant advancements through the 18 and 19 centuries, until war, fascism, and totalitarianism halted, for a time, major global progress in the 20 century. That movement has since achieved widespread and remarkable success in recent decades, with many nations joining the abolitionist column, especially if one tallies global progress toward the objective of total abolition since the 1970s. “It became explicit that there was an international goal toward abolition,” one legal commentator writes, “when in 1971 the United Nations General Assembly declared that the main objective of Article 3 of the UDHR was to progressively restrict the use of the death penalty, 'with a view to ... abolishing this punishment in all countries.”’ Transnational anti-death penalty advocacy networks formed and multiplied, and the continent of Europe coalesced around the death penalty's abolition on the ground that the punishment violated human rights. “The desirability of the total abolition ... has also been reaffirmed on repeated occasions by various United Nations bodies and organs,” Mary Robinson, then the U.N. High Commissioner for Human Rights, observed in 1999. A year later, U.N. Secretary-General Kofi Annan called for a global moratorium on December 18, 2000, after receiving a petition signed by 3.2 million people and delivered by Sister Helen Prejean and representatives of Amnesty International and the Sant'Egidio Community.

Although U.S. jurisdictions are split on capital punishment, with American executions becoming rare and the death penalty becoming dormant in several retentionist states, the U.S.--still clinging to state-sanctioned killing--is now a clear outlier in the international community, especially among highly industrialized countries. The continent of Europe has outlawed the use of death sentences and executions through two protocols to the European Convention on Human Rights, formally known as the Convention for the Protection of Human Rights and Fundamental Freedoms. Protocol No. 6 abolished capital punishment in peacetime, and Protocol No. 13 extended abolition in Europe even in times of war. Many non- European countries and, increasingly, American states have also abolished or abandoned the punishment of death. As USC law professor Mugambi Jouet writes of how the ideas of leading American abolitionists--people advocating for the total rejection of capital punishment--spread and what, as in Europe, undergirded their opposition to capital punishment: “The approach to the death penalty that Anthony Amsterdam, William Brennan, and Thurgood Marshall adopted would crystallize elsewhere in the Western World. In Europe, notably, both national governments and continental governmental bodies stress that the death penalty is a categorical violation of human rights and human dignity.”

In the Inter-American human rights system, a nation's abolition of capital punishment is, by treaty for signatory nations, an irreversible, one-way street because of the wording of the American Convention on Human Rights. Article 4 of that convention, titled “Right to Life,” states in subsection 2 that “[i]n countries that have not abolished the death penalty, it may be imposed only for the most serious crimes,” while subsection 3 reads: “The death penalty shall not be reestablished in states that have abolished it.” Indeed, the ICCPR has itself been interpreted--in General Comment 36, adopted by the U.N. Human Rights Committee after inputs from scores of NGOs and nation-states bar the death penalty's reintroduction in any country that has abolished it.

Unlike in prior centuries, when executions were widely accepted as part and parcel of any legal system, capital punishment is increasingly seen by countries and leading publicists of international law as a blatant violation of fundamental human rights, including the universally proclaimed right to be free from torture and other cruel, inhuman, and degrading treatment (“CIDT”) or punishment. “[T]orture is a label that is 'usually reserved for extreme, deliberate and unusually cruel practices, for example, sustained systematic beating, application of electric currents to sensitive parts of the body, and tying up or hanging in positions that cause extreme pain.”’ There is already an absolute prohibition on torture in international law, with the prohibition against torture considered a jus cogens norm. Jus cogens norms “enjoy the highest status within international law,” and existing jus cogens norms include prohibiting maritime piracy, slavery, war crimes, crimes against humanity, genocide, apartheid, racial discrimination, extrajudicial killing, and torture.

With existing jus cogens norms already barring extrajudicial killings, torture, and summary executions, it is past time to consider capital punishment--like lynchings a violation of jus cogens. In fact, an immutable characteristic of capital punishment is that it involves the use of official death threats, with mock amputations and mock executions--utilizing threats of bodily harm, though not leaving any physical marks on the victim's body appropriately considered to be acts of psychological torture. It has been observed that “forms of torture” include “mock executions by placing a gun in his mouth and pulling the trigger,” with mock executions considered to be “classic examples” of psychological torture. In the non-state actor context, American jurists have previously declared in criminal cases that “the infliction of psychological torture” involves leaving the victim “aware of, but helpless to prevent, impending death.”

This Article raises an important question: if simulated executions are acts of torture (and they are), why not real ones? Death row inmates can obviously appeal from their death sentences, but they are, in fact, utterly helpless to prevent their deaths as their fates lie in the hands of others. Again and again, American courts--sitting in judgment in criminal cases and assessing whether a victim was subjected to psychological torture--have reiterated the common-sense notion that psychological torture is inflicted when one is made aware of one's impending death but that person is helpless to prevent that death. When that exact same definition of psychological torture is applied to those facing capital charges and sentences of death, it is crystal clear that death row inmates--to say nothing of their family members, who also experience severe torment as they anticipate the deaths of loved ones in the years and then final moments before executions occur that definition and suffer severe pain or suffering amounting to torture. Consequently, the systematic use of death threats against those facing capital charges or convicted thereof should, posthaste, be stigmatized not merely as cruel and inhuman treatment or punishment (or as cruel and unusual punishment under American law) but as torture--the aggravated form of cruelty. As the U.N. itself has made clear, torture is “an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment.”

Despite intransigence from some quarters, a record number of countries voted for a global moratorium on executions in 2022 (and then did so again in 2024) as the abolitionist movement has picked up steam. In the past few decades, the American death penalty--as one commentator notes--has been “a subject of diplomacy, international activism, and litigation in international forums,” with countries in the European Union collectively taking a firm stance against capital punishment while simultaneously seeking abolition, through various means, in the United States and elsewhere. In America, some state legislatures and state courts--despite recent U.S. Supreme Court decisions upholding the constitutionality of capital punishment and lethal injection protocols themselves chosen to abolish or declare unconstitutional the punishment of death. For example, the Supreme Court of Washington ruled in State v. Gregory (2018): “The death penalty is invalid because it is imposed in an arbitrary and racially biased manner.” “In concluding that the death penalty is unconstitutional,” Connecticut Supreme Court justices also stressed in State v. Santiago (2015) that they “recognize that the legal and moral legitimacy of any future executions would be undermined by the ever present risk that an innocent person will be wrongly executed.”

Around the world, the death penalty has been regularly in the news for a host of reasons. Along with the ten moratorium resolutions that have been introduced in, and passed by, the U.N. General Assembly, a number of American states have imposed moratoriums on executions. In addition, more and more countries, including Armenia and Mongolia, have explicitly rejected the death penalty's use. As part of abolitionist efforts, several jurisdictions now openly refuse to extradite individuals to other countries if the accused might face the prospect of a capital prosecution and a potential death sentence.

While anti-death penalty advocates urged the United States to vote in favor of the U.N. General Assembly's latest moratorium resolutions in 2022 and 2024, those lobbying efforts failed. Nevertheless, a record 125 nations overwhelmingly adopted the 2022 moratorium resolution--and then 130 countries, another record, chose to vote that way on the more recent December 2024 resolution. These U.N. General Assembly votes signal an even greater promise for abolitionist efforts in the years to come, especially as the number of abolitionist countries continues to rise. Abolitionist countries, such as Italy, have vocally advocated for a worldwide halt to executions for decades, with the next moratorium resolution almost certain to come before the United Nations in 2026.

The death penalty is a centuries-old practice now under siege. This Article highlights the effectiveness of international advocacy against capital punishment since the 1970s, when the U.N. General Assembly, after adopting the ICCPR, called for progressively restricting capital punishment and Amnesty International launched its own global campaign against the punishment of death. Forward progress has been slow at times, but Amnesty International's groundbreaking campaign led to the drafting and promulgation, in 1977, of the Declaration of Stockholm. That Declaration, a significant milestone in which abolitionists from around the globe gathered at a conference in Sweden and called for the death penalty's universal abolition, was produced just months after the U.S. Supreme Court's Gregg v. Georgia (1976) decision declared executions to be constitutional. Gregg was a clear setback for America's abolitionist movement, but one counterbalanced by the Declaration of Stockholm's clear and forceful renunciation of the punishment of death.

This Article also highlights the tension--indeed, the irreconcilable conflict-- between Articles 6 and 7 of the ICCPR, as originally adopted. While Article 6 restricts the death penalty's use for certain categories of offenders, it nonetheless--on its face--permits death sentences for “the most serious” crimes. Meanwhile, Article 7, like the UDHR, absolutely bars, without exception, the use of torture and CIDT. A little historical background illuminates the inherent conflict between those two ICCPR articles, why that conflict arose, and why it now needs to be resolved through the universal adoption of an existing ICCPR protocol aimed at the death penalty's abolition. In 1966, before Amnesty International launched its anti-death penalty campaign, the U.N. General Assembly, in the ICCPR and at a time when capital punishment was still in use by many countries, had set out important restrictions on capital punishment following considerable debate. Article 6 of the ICCPR, plainly contemplating the death penalty's eventual abolition, provided in part: “[i]n countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide.”

Other significant provisions of Article 6 of the ICCPR provided that “[n]o one shall be arbitrarily deprived of his life”; that “[a]nyone sentenced to death shall have the right to seek pardon or commutation of the sentence”; and that “sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.” “Nothing in this article,” another portion of Article 6 of ICCPR made clear, “shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.” Although Article 6 of the ICCPR thus contemplated and strongly encouraged abolition at a time when, as a practical matter, scores of nations were still using capital punishment, Article 7 of the ICCPR, the covenant's very next provision, unequivocally stated that “[n]o one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment.”

By the time it ratified the ICCPR, the United States was--as it continues to be--in the retentionist column, at least when considered as a whole in spite of individual states abolishing capital punishment. The U.S. Supreme Court's Gregg v. Georgia decision, which followed four years after the Court's Furman ruling, represented a big step backwards in the U.S., even as the international community, slowly but surely, moved toward abolition. Following the U.N. General Assembly's adoption of the ICCPR, but before the ICCPR entered into force, the U.S. Supreme Court outlawed capital punishment in Furman. The Court held that American death penalty laws, as then applied, violated the U.S. Constitution's Eighth and Fourteenth Amendments. The former amendment bars ““cruel and unusual punishments,” while the latter one guarantees “equal protection of the laws” and--as interpreted by the U.S. Supreme Court-- incorporates the Eighth Amendment's tripartite prohibitions against excessive bail, excessive fines, and cruel and unusual punishments against the states. Justice William Brennan's lengthy concurrence in Furman refers to “torture,” “tortures,” “torturous punishments,” and “punishments of torture.” Also, the California Supreme Court's earlier ruling in People v. Anderson (1972) observed that “the process of carrying out a verdict of death is often so degrading and brutalizing to the human spirit as to constitute psychological torture.” The terse, per curiam opinion in Furman, however, did not classify the death penalty as torture (instead categorizing the death penalty, as applied, merely as a “cruel and unusual punishment”).

Yet, just a few years later, relying in part on the United Nations' non-binding Declaration on the Protection of All Persons from Being Subjected to Torture (1975), another federal court--the U.S. Court of Appeals for the Second Circuit--forthrightly declared in Filártiga v. Peña-Irala (1980) that “official torture is now prohibited by the law of nations.” Then, in 1984, the U.N. General Assembly adopted the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (known as the Convention Against Torture or CAT), which specifically defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted” on someone for a prohibited purpose. Despite these important legal developments, in the post-Furman era, thirty-five states reenacted capital punishment statutes and Congress passed a law making aircraft piracy resulting in death a capital offense. In this post-Furman context, the U.S. Supreme Court--while renouncing torture as an Eighth Amendment violation-- retreated from Furman and reversed course, upholding the constitutionality of Georgia, Florida, and Texas death penalty statutes in Gregg and two companion cases.

This Article is divided into two parts. Part I traces the growth of the international human rights system and movement, with a specific focus on historic transnational advocacy networks to achieve progress in protecting human rights. Part II then describes the modern international campaign to abolish capital punishment, detailing the role of nation-states and NGOs in leading that effort. In highlighting these activities, Part II also lays out the advocacy and legal framework (i.e., classifying the death penalty under the rubric of torture) for the movement to be successful in barring state-sanctioned killing. In particular, this Article calls for the recognition of a jus cogens norm prohibiting the death penalty's use. This was the outcome sought by a group of more than 20 international law scholars at the 8th World Congress Against the Death Penalty held in Berlin, Germany, in November 2022. In their statement, the scholars emphasized: “[t]he temporary exception in ICCPR article 6(2) which allows for the application of the punishment for the 'most serious crimes,’ is now starkly brought into focus through article 6(6) which states '[n]othing in this article shall be invoked to delay or to prevent the abolition of capital punishment.”’ The printed statement of the scholars also stressed that “[t]his is a time-sensitive feature, which allows us to question the retentionist member states' claims they can justifiably continue to use the death penalty in perpetuity.”

[. . .]

Executions used to be the customary punishment for a wide variety of offenses. England's “Bloody Code” once made more than 200 offenses punishable by death, and the post-World War II tribunals in Nuremberg, Germany, and Tokyo, Japan, both resulted in death sentences and executions. But today, more than two-thirds of the world's countries have either abolished capital punishment or no longer use it in practice, and the Rome Statute, which set up the International Criminal Court for the punishment of the world's most serious crimes (e.g., genocide, crimes of aggression, crimes against humanity, war crimes), does not even authorize the use of capital punishment. In fact, multiple convention protocols and national constitutions and courts already forbid executions along with torture and CIDT. Jettisoning a longstanding German tradition of capital punishment, Germany's Basic Law has barred executions since 1949. And in the landmark case of State v. Makwanyane (1995), South Africa's Constitutional Court declared capital punishment unconstitutional and inconsistent with the rights to life, human dignity, and to be free from cruel and inhuman treatment.

The success of the abolitionist movement over the past few decades is no accident. It is the result of intentional and continuous advocacy as the fight against capital punishment has gone global. “[T]he questioning of the legitimacy of the death penalty dawned in the context of the Enlightenment, at the end of the 18th century,” one commentator explains in the German Law Journal. In the modern era, however, Amnesty International and the NAACP--as well as individuals such as Justices Arthur Goldberg, Thurgood Marshall, and William Brennan--led the way. “Justice Marshall was part of the Court majority that invalidated all existing death penalty statutes in 1972,” Jordan Steiker, one of his former law clerks, writes. “In striking down capital punishment,” Justice Marshall emphasized in his lengthy concurrence in Furman, “this Court does not malign our system of government.” “On the contrary,” Marshall wrote, “it pays homage to it.” As Justice Marshall concluded in the early 1970s: “In recognizing the humanity of our fellow beings, we pay ourselves the highest tribute. We achieve 'a major milestone in the long road up from barbarism’ and join the approximately 70 other jurisdictions in the world which celebrate their regard for civilization and humanity by shunning capital punishment.”

Since then, scores of activists and NGOs have been involved in the abolitionist movement and many more countries have joined the abolitionist bandwagon. “As the United States moved into decades of constitutional trench warfare on capital punishment,” one source notes, looking at the global context, “the anti-death penalty movement made progress elsewhere.” “The transnational advocacy network promoting the abolition of the death penalty,” the source emphasizes, “emerged in the 1970s, accelerating through alliances with existing international institutions such as the Catholic Church and the Council of Europe which increased pressure on governments from above.” In Rome, where the Community of Sant'Egidio was founded in 1968, that charitable and faith-based community runs the Cities of Life campaign against the death penalty and rallies on November 30th every year in Italy's capital, lighting up monuments to show their collective opposition to capital punishment. As two participants in the Cities of Life campaign observe: “More than 2,000 cities light up public buildings in support of the worldwide abolition of the death penalty, with lighting of buildings such as Rome's Coliseum, Cathedral Square in Barcelona, and St. James Cathedral in Toronto.”

In addition to the work of dedicated abolitionist organizations, leading scholars and professional organizations such as the International Bar Association have formally endorsed the abolition of the death penalty. The American Law Institute, for instance, withdrew the death penalty provisions of the Model Penal Code in 2009. Likewise, on December 16, 2015, the Bar of Ireland, the Bar Human Rights Committee of England and Wales, The International Bar Association's Human Rights Institute, and The Paris Bar all joined as amici curiae on behalf of Shonda Walter, a Pennsylvania death row inmate, to ask the U.S. Supreme Court to find the death penalty to be a violation of the Eighth Amendment's Cruel and Unusual Punishments Clause. “Coordinating bodies such as Together Against the Death Penalty (founded in France in 2000), World Coalition Against the Death Penalty (founded in Rome in 2002), and International Commission Against the Death Penalty (founded in Spain 2010) host conferences and facilitate meetings with dignitaries,” one piece of scholarship emphasizes. Each World Congress against the Death Penalty--organized by Ensemble Contre la Peine de Mort (ECPM), the international alliance of abolitionist organizations, and hosted by the likes of the European Union, the Council of Europe, and the European Parliament high-profile political leaders and speakers advocating for the abolition of the death penalty.

In human rights campaigns, whether local, national or international, there is often a turning point Malcolm Gladwell terms a “tipping point.” With so much international coordination seeking the death penalty's abolition, including among government actors in abolitionist states, and with so many NGOs regularly involved in such anti-death penalty advocacy, the world may finally be opening its eyes, at long last, to what Albert Camus had to say about capital punishment's barbarity. As Camus sagely observed decades ago:

Capital punishment is the most premeditated of murders, to which no criminal's deed, however calculated, can be compared. For there to be equivalence, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months. Such a monster is not encountered in private life.

When courts evaluate whether criminal conduct is torturous or not, judges have determined that “causing the victim to anticipate harm or death are sufficient to prove torture.” And the anticipation of an unnatural death is what every capital defendant and every death row inmate must face. Capital charges and death sentences cause those subjected to them to anticipate their deaths at the hands of the state, and once a death warrant is issued for an execution and the execution date approaches, an official threat of death obviously becomes imminent. Although an exoneration, a commutation, or a reprieve may occur in a specific case, halting or pausing the pending threat of death, so long as capital punishment is authorized by law, executions will continue to take place and official death threats will inflict extreme torment and severe pain and suffering on death row inmates and their families. Judges, jurors, and lawyers in capital cases, as well as prison chaplains and guards, are also adversely affected. “Structured interviews with over one thousand Capital Jury Project ex-jurors,” one recent law review article has pointed out, “showed that a great many jurors suffered adverse effects from their trial service, including difficulties with insomnia, nightmares, substance use, flashbacks, interpersonal difficulties, isolation, and strains on their social relationships.”

In the non-state actor context, a murder victim need only anticipate death for a relatively short period of time before the law recognizes the presence of psychological torture. For example, in Mitchell v. State, the Alabama Court of Criminal Appeals held that “the circuit court did not abuse its discretion in finding that at least one of the victims suffered psychological torture” where individuals were in different areas of an inn's lobby when they were shot and the murders “were not accomplished in a rapid-fire manner; there was sufficient time between the ... murders for the next victim to be placed in significant fear for his or her life.” Likewise, in Brown v. State, the Alabama Court of Criminal Appeals held that where the defendant, by his own admission, “was present in the victim's apartment for approximately 30 minutes, and the victim was bound for at least 15 minutes,” and where the defendant “admitted that he threatened the victim's life throughout the assault,” “[t]he evidence establishes that the victim suffered for an appreciable amount of time following the assault and clearly endured extensive psychological torture.” As noted above, death row inmates face threats of death not just for minutes or hours, but for months and years--even decades--at a time.

For too long, capital punishment and torture have been treated separately by the law, with many nations renouncing torture while simultaneously permitting executions. But as the World Coalition Against the Death Penalty and scores of NGOs and legal experts continue to demonstrate that capital punishment should be considered and classified under the rubric of torture and CIDT, that is bound to change over time. The reality of the death penalty's administration is that it has always been inherently cruel and torturous. Ultimately, the death penalty will be classified for what it is--an act of torture--and the practice, like other forms of cruelty and torture, will be prohibited by a jus cogens norm of international law. The use of the death penalty plainly violates human dignity and an array of universal human rights, including the right to life, the right to be free from torture and cruelty, and the right to be treated in a nonarbitrary, nondiscriminatory manner. Indeed, because every death penalty regime makes use of credible death threats--the kind of threats that, if used in military or custodial interrogations, or by offenders who torture or kill, are already prohibited by law-- the only way to eliminate those torturous death threats is to abolish capital punishment. With mock executions, threats of torture, and rape already identified as acts of torture, it seems almost self-evident that capital punishment should be similarly stigmatized using the torture classification.

As people around the world continue to open their eyes to the horrors of state-sanctioned killing, it is time for abolitionists to redouble their efforts in the international community and push harder at the United Nations General Assembly to have the death penalty classified under the rubric of torture. With death threats ordinarily treated as tortious and criminal conduct, and with mock executions already considered a classic example of psychological torture, it is already clear why, in the immigration context, a person facing and proving imminent threats of death in another country has a basis for obtaining withholding of deportation to that country. In criminal cases, what are often called torture-murder cases, jurists already forthrightly define “psychological torture” as occurring when crime victims are made aware of their impending deaths but are helpless to prevent those deaths. For example, the presence of psychological torture has been found in homicide cases where the murder victim “had begged the defendants to cease their behavior,” “was aware that her death was imminent,” and “feared” for her own life and her grandchild's life.

It is disturbing and totally contrary to rule of law principles that, in the same region where lynchings once occurred so frequently, southern jurists have defined “psychological torture” one way in coerced confession and torture-murder cases, but then have totally ignored the concept of psychological torture when it comes to the suffering of death row inmates (and, by extension, their families) subjected to continuous and far longer threats of death. Those found guilty of torture-murders have committed heinous crimes and must be punished, but torture is about what is happening to someone in the moment at the hands of a state official, and under existing law nothing can justify torture--not war, public emergency, or superior orders, and certainly not the fact that someone, in the past, has been found guilty of a crime, no matter how heinous. As the Alabama Supreme Court, in America's Deep South where most American executions now occur, has held: “Psychological torture can be inflicted where the victim is in intense fear and is aware of, but helpless to prevent, impending death.” That legal description of psychological torture--from a court in a death penalty state, as it happens-- describes the very circumstances faced by death row inmates in America and across the globe who now live under continuous threats of death before execution, commutation or reprieve, or exoneration.

Because of the death penalty's continued use, international law is, in substance, quite unprincipled in application. While the U.N. Convention Against Torture absolutely bars torture, including in wartime, the ICCPR--at least as originally conceived in Article 6-- allowed death sentences for the most serious crimes. However, in Europe and in many other locales, and thanks, in part, to the work of NGOs like Amnesty International and ECPM and the ratifications of the ICCPR's Second Optional Protocol, Protocols 6 and 13 to the European Convention on Human Rights, and the Inter-American Protocol to Abolish the Death Penalty, the inherent and irreconcilable conflict between capital punishment and the absolute prohibition of torture is being resolved through the death penalty's abandonment or abolition.

As more international advocacy occurs, it now seems very clear that, in time, death sentences and executions will be found to be totally incompatible with the law's strict prohibition of torture because an immutable characteristic of the death penalty is that it utilizes official and torturous death threats. If the world is to achieve truly universal human rights, then everyone--the innocent and the guilty alike--must be protected from acts of torture and cruelty. The Rule of Law, which requires that governmental officials be subject to the same laws as everyone else, demands no less. As Benjamin Cardozo once observed: “Perhaps the whole business of the retention of the death penalty will seem to the next generation, as it seems to many even now, an anachronism too discordant to be suffered, mocking with grim reproach all our clamorous professions of the sanctity of life.”

Professor of Law, University of Baltimore School of Law; Adjunct Professor, Georgetown University Law Center; Visiting Scholar, Human Rights Center, University of Minnesota Law School; Of Counsel, Stinson LLP.