Second Optional Protocol: An irreversible mechanism for abolishing the death penalty” – Denys Robiliard

on 7 September 2020

What is the importance and particularity of the Second Optional Protocol in terms of international law ?

To start with, it is the only international instrument with universal authority that abolishes the death penalty. There is a possible reservation but it is limited to both military crimes and crimes committed during war (1). This reservation is more significant than the one in Protocol 6 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (2). The other main feature of Protocol 2 is that, following the example of the ICCPR, the Protocol cannot be denounced; once it has been ratified by a state party, the position cannot be reversed. It is an irreversible mechanism for abolishing the death penalty.

The 3rd World Congress was an opportunity to observe the current situation as regards ratification of Protocol 2 in a number of countries. What lessons can we learn from Cambodia’s situation (3) for instance ?

Firstly, the ratification issue is specific to each country. The work done by the Cambodian League for the Promotion and Defence of Human Rights in preparation for the Congress was very interesting in terms of the methods it used. It carried out a comprehensive analysis of all the possible obstacles to ratification at both government and parliamentary levels. One of its conclusions was that the relationship between Cambodia and the international community is presently dominated by a quasi-power struggle over the trial of former Khmer Rouge members, making any measure which promotes international law to a greater or lesser degree difficult.

However, identifying the obstacles is a first step towards finding ways to overcome them. We now have to identify the people and arguments that will convince Cambodia that the trial of Khmer Rouge members is not connected to the issue of the death penalty. Cambodia is an abolitionist country and there is no reason why a dispute regarding international criminal law should delay ratification of Protocol 2.

Liberia has abolished the death penalty through ratification of Protocol 2. Following their example, would it not be desirable to focus diplomatic efforts on signing Protocol 2 rather than promoting a moratorium ?

Firstly, there are countries where it is difficult to see why a moratorium would be called for since they are already de facto abolitionists. In many African countries for instance, the death penalty is provided for in the criminal codes, which are inspired from the old colonial codes, but not applied. Protocol 2 perfectly suits their situation: if they do not plan to re-establish the death penalty in practice, why not ask them to make an international commitment not to do so? For abolition activists like us, it is obviously a precious tool. De facto abolition is a dangerous situation for those condemned to death by the countries concerned who remain on death row and whose situation can change radically overnight.

Why is ratification of Protocol 2 important in countries which have already abolished the death penalty ?

It is a similar situation. Why do we campaign for ratification of Protocol 2? Because it is essential to have a safety net at international level. It is very easy to re-establish the death penalty: one law can undo another. We know that in a crisis situation the death penalty can be re-introduced. Members of parliament in abolitionist countries must be convinced that, even if capital punishment has already been outlawed in domestic law, they must make an international, irreversible commitment to abolition.

France recently revised its Constitution to allow for ratification of Protocol 2. What do you think of this decision ?

The French attitude is even more important. Over and above making it possible to ratify Protocol 2, enshrining the right to life and the prohibition of capital punishment in constitutional law is per se extremely important and exemplary. France should now continue to serve as an example by ratifying Protocol 2.

1. Editor’s note :This reservation is admissible only if the relevant provisions already exist in the national legislation of the state party and if the reservation is taken at the time of ratification or accession.

2. Editor’s note :Protocol n°6 to the ECPHRFF forbids the death penalty “in peacetime” . Protocol n° 13 of 2002 on the other hand abolishes the death penalty “in all circumstances.

3. Cambodia abolished the death penalty in 1989 but has not yet signed Protocol 2. It is one of the countries targeted in the WCADP’s campaign for ratification of Protocol 2.



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