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Distinct from diplomatic assurances in death penalty cases

The territories of the member states of the Council of Europe now constitute a “death penalty free zone.”²⁶  Amnesty International, Human Rights Watch and the International Commission of Jurists oppose the death penalty under all circumstances. However, we recognize that, unlike the absolute prohibition of torture and other ill-treatment, the death penalty is not prohibited per se under international law.

Council of Europe standards provide for member states to honour their obligations not to transfer a person to a state where they risk the death penalty by accepting ad hoc and ad personam assurances that he or she will not be subjected to the death penalty upon return.

For example, Guideline XIII(2) of  the Council of Europe Guidelines on Human Rights and the Fight against Terrorism provides:

The extradition of a person to a country where he/she risks being sentenced to the death penalty may not be granted. A requested State may however grant an extradition if it has obtained adequate guarantees that:

(i) the person whose extradition has been requested will not be sentenced to death; or

(ii) in the event of such a sentence being imposed, it will not be carried out.

Additional reasons for making a distinction between seeking and relying on diplomatic assurances against the death penalty and diplomatic assurances that a person will not be subjected to torture or other ill-treatment should be noted.

States that impose the death penalty fully acknowledge this practice, and therefore negotiations on diplomatic assurances in this respect are open and ‘clean’. However states in which there is a pattern of torture or other ill-treatment routinely deny this fact, thus tainting any negotiations and resulting in assurances or understandings that are evasive and perfidious.  

Torture and other ill-treatment, especially when practised by persons adept at hiding their infliction and consequences, are notoriously difficult to ascertain even where systemic, varied and professional visiting or monitoring and other preventive mechanisms are in place, let alone through the sole mechanism of occasional visits. In contrast, in the case of the death penalty, facts such as the contents of charge sheets and sentences handed down by courts are easy to establish in many countries. Thus, in death penalty cases, potential breaches of the assurances can usually be identified and addressed before the sentence is carried out, in contrast to cases involving diplomatic assurances against torture and other ill-treatment, where sending states run the unacceptable risk of being able to identify a breach, if at all, only after torture and other ill-treatment have already occurred.