Christopher Alexander | 10 October 2023

International human rights law (IHRL) is yet to absolutely proscribe the death penalty as a violation of the right to life. While some domestic and regional human rights systems have already prohibited capital punishment, the International Covenant on Civil and Political Rights permits countries that are yet to abolish the death penalty to carry out executions within strict limits. Among these is that the death penalty must be implemented in a manner that does not violate the absolute prohibition on torture and ill-treatment.

There is growing consensus that the death penalty will always violate this prohibition. Issues of concern include torture during investigation, the living conditions on death row, and the so-called ‘death row phenomenon’. Here, we canvas the implications of the act of execution itself, arguing that every method of execution violates (or runs the risk of violating) IHRL—a contention that, if accepted, would render the death penalty lawfully unworkable.

Innately cruel, inherently degrading

There is a strong degree of international consensus that certain methods of execution do, by their very nature, violate the prohibition on torture and ill-treatment. Stoning is a case in point. In May 2023, the Deputy Chief Justice of Afghanistan’s de facto Supreme Court announced that courts across the country had sentenced 37 people to death by stoning, and others to being crushed under a falling wall. UN experts condemned the pronouncement, affirming that both modes of execution violate the prohibition on torture and ill-treatment.

Stoning is not unique to Taliban-ruled Afghanistan: it remains on the books in countries such as Brunei, Iran, Mauritania, and Sudan. In 2011, the Human Rights Committee declared stoning to be incompatible with the prohibition on torture and ill-treatment, a position it reiterated in 2019. The same conclusion has been reached by the Committee Against Torture, the Committee on the Rights of the Child, the European Court of Human Rights and the UN Commission on Human Rights.

Such widespread censure at the international level is seen also with respect to public executions. Though uncommon, such executions do persist, having been recorded in Afghanistan, Iran, and North Korea since 2022. The UN Committee Against Torture has opined that public executions ‘raise serious issues’ under the prohibition on torture and ill-treatment. The Human Rights Committee has gone further, confirming that public executions violate the prohibition—a position affirmed by the Inter-American Court of Human Rights, Special Rapporteur on extrajudicial, summary, or arbitrary executions, UN Commission on Human Rights, and UN Human Rights Council.

An invisible torture

The act of execution is often graphic: hanging may result in involuntary urination or defecation; electrocution in the stench of burning flesh; shooting and beheading in bodily mutilation. This may lead some to perceive lethal injection as a more humane method of execution: it is administered in a more clinical setting, often by medical personnel, and the prisoner may appear to peacefully ‘fall asleep’.

But such belief is misplaced. In some cases, lethal injection is a cocktail of three drugs: an anaesthetic, a paralytic, and a drug that stops the prisoner’s heart. Should the anaesthetic wear off too soon, the prisoner will endure immense pain during cardiac arrest. And while the paralytic immobilises the prisoner, masking their suffering from onlookers, it also paralyses their respiratory system, and prisoner autopsies have revealed that those executed by lethal injection often exhibit pulmonary edema—evidence of a slow and painful death during which prisoners were trying to breathe as their lungs filled with fluid, ensuing in a feeling of suffocation or drowning. The Human Rights Committee has explicitly stated that where the death penalty is implemented, it must be carried out in a manner causing ‘the least possible physical and mental suffering’. Given the gravity of medically evidenced harms flowing from lethal injection, serious doubts exist as to how it could possibly meet this threshold.

Lethal injection may alternatively be administered using a single drug or different combination of drugs; however, concerns persist. This is particularly so when the drugs used remain untested: in 2014, the Human Rights Committee opined that executions using untested drugs raise concerns under the prohibition on torture and ill-treatment. The Committee Against Torture has taken a stricter approach, suggesting that lethal injection may always violate the prohibition, regardless of the drugs used.

While IHRL remains unsettled as to the status of lethal injection when administered ‘properly’, the risk of technical failures and botched executions raises irrefutable concerns. Problematic executions by lethal injection are well documented, particularly in the United States. For instance, the 2006 execution of Angel Diaz took 34 minutes, involved the administration of a second round of drugs, and resulted in chemical burns to Diaz's arms.

The risk of human error

The risk of botched executions extends far beyond lethal injection. Hanging is the most widely used method of execution globally: in 2022 alone, executions by hanging were recorded in nine countries. ‘Long drop hanging’ involves the prisoner being dropped from a height calculated to break their neck: unconsciousness immediately ensues, meaning that the prisoner is free from pain during the minutes-long asphyxiation process. However, research indicates that this is not a universal reality: the so-called ‘hangman’s fracture’ is not guaranteed and the speed with which unconsciousness onsets is varied, indicating at least a short window of suffering. Should the rope be too short, the prisoner may remain conscious while being strangled, a process which may take up to 45 minutes. And where the rope is too long, the prisoner may be decapitated. In some cases, the rope may even snap—resulting in the prisoner being hanged a second time.

The precise status of hanging in IHRL is unclear. In 2019, the African Court on Human and Peoples’ Rights held that hanging violates the prohibition on torture and ill-treatment as enshrined in the African Charter. Though not going as far as the African Court, the UN Committee Against Torture has expressed concern regarding hanging as a method of execution, noting in 2022 that it ‘exacerbates the cruelty’ of the death penalty. The Chairperson of the Committee had previously expressed similar concern that hanging was not deemed ‘inhuman’. And though yet to determine the issue, the Inter-American Court has left the door open for a finding that hanging amounts to a violation of the prohibition.

Similar criticisms may be made of electrocution. While there are no scientific studies as to the speed of or pain associated with such executions when carried out without error, botched electrocutions can be far from instantaneous and subject the prisoner to immense pain. In 1990, Florida’s electrocution of Jesse Tafero lasted some seven minutes, during which flames erupted from Tafero’s head. Though no international-level rulings have been identified, certain jurisdictions have outlawed the electric chair at the local/domestic level, on the basis that it violates the prohibition on torture and ill-treatment.

The least painful method

As noted above, the Human Rights Committee has declared that the death penalty must be administered in a way that causes ‘the least possible physical and mental suffering’ to the prisoner. Some have suggested that execution by shooting may be the most appropriate method: death is certainly brought about faster than other methods. But again, executions by shooting carry the inherent risk of human error. For instance, in 1996, a man survived a televised execution by firing squad in Guatemala, requiring one shooter to approach him and execute him with a bullet to the head.

Other speedy methods of execution have been contemplated. Beheading continues to be the favoured method of execution in Saudi Arabia, where prisoners are decapitated by sword. And while the guillotine is now a relic of history, a US judge opined in 2014 that it is ‘probably the best’ method of execution given its speed and efficacy. The same judge did, however, recognise that the efficiency of the guillotine is undermined by the fact that such a mode of killing raises questions of moral and ethics. Likewise, in 2018, the Special Rapporteur on counter-terrorism and human rights termed beheading ‘archaic’ and deemed it a violation of the prohibition on ill-treatment. Jurisprudence from the European Court of Human Rights indicates that such a position may be reflected in IHRL doctrine: it is possible that certain execution methods may violate the prohibition even in the absence of any physical or mental suffering on the basis that they harm the dignity of the executed.

An impossible punishment?

Insofar as the death penalty is concerned, IHRL remains in a state of flux. At times, it is even contradictory: for instance, the Human Rights Committee has declared that executions by gas chamber violate the prohibition on torture and ill-treatment, while remaining unresolved as to the status of lethal injection—despite the latter inducing similar feelings of suffocation and potentially taking even longer.

Nonetheless, the current state of international jurisprudence indicates a promising trend. Certain execution methods are already deemed in law to be of such inherent cruelty as to violate the prohibition on torture and ill-treatment. Others, though yet to be absolutely proscribed, face increasing scrutiny. Indeed, IHRL appears to be encroaching on States’ ability to lawfully execute as part of its shift toward absolute abolition of the death penalty.

As long as retentionist States search for lawful methods of execution, they will continue to encounter resistance from those that already recognise the death penalty as fundamentally and incontrovertibly cruel. At its core, capital punishment involves an act of violence. When construed in this way, the search for a ‘humane’ mode of execution is—as Surendranath observes—a futile one:

The search for the “least painful method” is ultimately an endeavour in how much cruelty we are willing to tolerate. It is about our collective willingness to inflict cruelty on an individual while wanting to appear otherwise.

Christopher Alexander is a researcher at Eleos Justice.