Many states that retain the death penalty continue to impose it and execute people for crimes that do not meet the threshold of “most serious” under international law. The restriction on the use of the death penalty to the “most serious crimes”, as stated in Article 6, paragraph 2 of the International Covenant on Civil and Political Rights (ICCPR), has been interpreted to refer to lethal crimes or crimes with extremely grave consequences. The UN Human Rights Committee has stated: “[T]he expression ‘most serious crimes’ must be read restrictively to mean that the death penalty should be a quite exceptional measure.”

The definition of “most serious crimes” has been further narrowed over time. The Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty adopted by the UN Economic and Social Council and endorsed by the General Assembly by consensus in 1984, state that: “capital punishment may be imposed only for the most serious crimes, it being understood that their scope should not go beyond intentional crimes with lethal or other extremely grave consequences”.

The Commission on Human Rights has detailed the types of crimes that should not carry death sentences, including non-violent financial crimes or non-violent religious practices or expressions of conscience, and “sexual relations between consenting adults”. In 2005, it urged that the death penalty not is imposed as a mandatory sentence.
The UN Human Rights Committee has stated that the following offences cannot be characterised as “most serious crimes”: economic offences (including embezzlement by officials), drug-related offences, political offences, robbery, abduction not resulting in death, and “apostasy, illicit sex […] and theft by force”. The Committee has also raised concerns about death sentencing for a range of vaguely or subjectively defined crimes that relate to internal and external security and political offences.

The UN Special Rapporteur on extrajudicial, summary or arbitrary executions has stated that the death penalty should be eliminated for economic crimes and drug-related offences, and that the restrictions on its use “exclude the possibility of death sentences for so-called victimless offences – including acts of treason, espionage and other vaguely defined acts usually described as ‘crimes against the state’ or ‘disloyalty’”, in addition to “actions primarily related to prevailing moral values, such as adultery and prostitution, as well as matters of sexual orientation.”

Since 2011, people continued to be sentenced to death or executed for crimes that did not involve the intention to kill resulting in the loss of life, therefore not meeting the threshold of “most serious crimes” as defined by Article 6 of the ICCPR. The death penalty was known to have been used to punish drug-related offences in countries such as China, India, Indonesia, Iran, Malaysia, Pakistan, Saudi Arabia, Singapore, Thailand, United Arab Emirates and Yemen.

Hong Kong and Macau are separate jurisdictions under the “one country, two systems” principle, and both of them have now abolished the death penalty.

Capital punishment effectively ceased in Hong Kong before its formal abolition. The last execution took place there in November 1966, when the authorities put a convicted murderer to death.

The Hong Kong government formally abolished the death penalty after the Legislative Council voted in favour of legislative measures to abolish it in 1991 and April 1993. The sentences of all those who had been condemned to death at the time were commuted to life imprisonment. Before its abolition, capital punishment was mandatory in Hong Kong for murder, treason and piracy with violence.

Macau was a Portuguese colony until it was returned to the People’s Republic of China on 20 December 1999. The last execution took place in Macau during the 19th century. The death penalty was abolished in both Portugal and Macau under the 1976 Portuguese constitution. Furthermore, Article 39(1) of the Penal Code of Macau (law 11/95/M), which was adopted in 1995 after consultation with the Chinese government, states that: “There shall not be a death penalty nor perpetual penalties or security measures of unlimited or undefined duration.”

Most of the world’s executions take place in China. The authorities there continued to shroud the country’s use of the death penalty in secrecy during 2011, and they obstructed efforts to verify their claims that the use of capital punishment had been significantly reduced since 2007. In the absence of published official figures, the coverage by state-owned media of several high-profile cases sparked intense discussion in the country during 2011. However, it was impossible to debate the subject adequately without access to all the key facts.

In 2011, the Chinese government eliminated the death penalty for 13 crimes, mainly white-collar offences for which executions were rarely carried out. However, it retained the death penalty for many other non-violent crimes, such as corruption and drug trafficking. The authorities also expanded the scope of capital punishment to include crimes such as forcing or deceiving someone to donate their organs, which in some circumstances can now be classified as intentional wounding or intentional killing, both of which are punishable by death. The government also expanded the circumstances under which a death sentence can be imposed for producing and selling fake drugs or poisonous or harmful foodstuffs.

People facing the death penalty in China continued not to receive fair trials in 2011. The accused were not presumed innocent – they had to prove it – and police often extracted confessions through torture or other forms of ill-treatment. Under Chinese legislation, prisoners under sentence of death do not have the right to seek pardon or commutation of their sentence from the executive branch. Severe procedural flaws continued to expose thousands of people to the risk of arbitrary deprivation of life.

Foreign nationals continued to be sentenced to death in China, particularly for crimes that did not meet the threshold of “most serious crimes”. A Pakistani man, Syed Zahid Hussain Shah, was executed by lethal injection on 21 September 2011, after the Supreme People’s Court in Beijing had approved his death sentence. He had been sentenced to death in Shanghai in March 2010 for drug trafficking, although he claimed he was innocent. His family stated he had not received adequate consular assistance during his detention, and that they had sent letters to Pakistani Prime Minister Yousaf Raza Gilani and President Asif Ali Zardari to ask for help. Pakistan’s Advisor for Human Rights told Amnesty International that he had asked Pakistan’s President to intervene in the matter and to request that his Chinese counterpart delay the execution.

Amendments to China’s Criminal Procedure Law were being drafted and debated during 2011. Provisions in the draft circulated for public consultation last year included significantly enhanced procedures for suspects and defendants in capital cases, and they provide some clarification of the role of lawyers in the final review process. Furthermore, the revisions propose that interrogations of all suspects may be recorded or videoed, and that they should be recorded in full for suspects facing a potential death sentence or life imprisonment (new Article 120). They require a court of second instance to hold hearings in all capital cases and other cases where the defence and prosecution disagree on the facts or evidence (amended Article 222). Concerning the procedure for final approval of the death sentence by the Supreme People’s Court (SPC), the revisions (amended Article 238) broaden the SPC’s powers so that, in addition to remanding a case for retrial if it does not approve a death sentence, it may also, in all cases, hold a hearing itself and revise the sentence (tishen yu gaipan). The proposed revisions require the SPC to question the defendant during the review process, and also to listen to the arguments of the defence lawyer if requested to do so by the lawyer (amended Article 239).

The scope of the proposed amendments is limited, but they are welcome enhancements to the procedures in capital cases, which international standards demand must incorporate the most stringent safeguards.

The community of nations has adopted four international treaties providing for the abolition of the death penalty. One is of worldwide scope; the other three are regional. Following are short descriptions of the four treaties and lists of the states that have signed but not become parties to them, as of 31 December 2011. Signing a treaty indicates an intention to become a party to it at a later date. States become a party to an international treaty either by acceding to it or by ratifying it. They are bound under international law to respect the provisions of the treaties to which they are a party, and to do nothing to defeat the object and purpose of the treaties they have signed.

 SECOND OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 

The Second Optional Protocol to the International Covenant on Civil and Political Rights was adopted by the UN General Assembly in 1989. Worldwide in scope, it provides for the total abolition of the death penalty. However, states that are parties to it may retain the death penalty in time of war, provided they make a reservation to that effect when they ratify or accede to the Protocol. Any state that is a party to the International Covenant on Civil and Political Rights may become a party to the Protocol.

 PROTOCOL TO THE AMERICAN CONVENTION ON HUMAN RIGHTS ON THE ABOLITION OF THE DEATH PENALTY 

The Protocol to the American Convention on Human Rights to Abolish the Death Penalty was adopted by the General Assembly of the Organization of American States in 1990. It provides for the total abolition of the death penalty but allows states that are parties to it to retain the death penalty in wartime if they make a reservation to that effect at the time of ratifying or acceding to the Protocol. Any state that is a party to the American Convention on Human Rights may become a party to the Protocol.

 PROTOCOL NO. 6 TO THE EUROPEAN CONVENTION ON HUMAN RIGHTS 

Protocol No. 6 to the European Convention for the Protection of Human Rights and Fundamental Freedoms [European Convention on Human Rights] concerning the abolition of the death penalty was adopted by the Council of Europe in 1982. It provides for the abolition of the death penalty in peacetime, although states that are parties to it may retain the death penalty for crimes “in the time of war or of imminent threat of war”. Any state that is a party to the European Convention on Human Rights may become a party to the Protocol.

 PROTOCOL NO. 13 TO THE EUROPEAN CONVENTION ON HUMAN RIGHTS 

Protocol No. 13 to the European Convention on Human Rights concerning the abolition of the death penalty in all circumstances was adopted by the Council of Europe in 2002. It provides for the abolition of the death penalty in all circumstances, including in time of war or of imminent threat of war. Any state that is a party to the European Convention on Human Rights may become a party to the Protocol.