[64]There was no dissent from that statement. But the International Covenant contains provisions permitting, with some qualifications, the imposition of capital punishment for the most serious crimes. In view of these provisions, the majority of the Committee were of the opinion that the extradition of fugitives to a country which enforces the death sentence in accordance with the requirements of the International Covenant, should not be regarded as a breach of the obligations of the extraditing country. In Ng's case, the method of execution which he faced if extradited was asphyxiation in a gas chamber. This was found by a majority of the Committee to involve unnecessary physical and mental suffering and, notwithstanding the sanction given to capital punishment, to be cruel punishment within the meaning of article 7 of the International Covenant. In Kindler's case, in which the complaint was delivered at the same time as that in the Ng's case, but the decision was given earlier, it was held that the method of execution which was by lethal injection was not a cruel method of execution, and that the extradition did not in the circumstances constitute a breach of Canada's obligations under the International Covenant.[1]
[65]The Committee also held in Kindler's case that prolonged judicial proceedings giving rise to the death row phenomenon does not per se constitute cruel, inhuman or degrading treatment. There were dissents in both cases. Some Commissioners in Ng's case held that asphyxiation was not crueller than other forms of execution. Some in Kindler's case held that the provision of the International Covenant against the arbitrary deprivation of the right to life took priority over the provisions of the International Covenant which allow the death sentence, and that Canada ought not in the circumstances to have extradited Kindler without an assurance that he would not be executed.
[66]It should be mentioned here that although articles 6(2) to (5) of the International Covenant specifically allow the imposition of the death sentence under strict controls "for the most serious crimes" by those countries which have not abolished it, it provides in article 6(6) that "[n]othing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant." The fact that the International Covenant sanctions capital punishment must be seen in this context. It tolerates but does not provide justification for the death penalty.
[67]Despite these differences of opinion, what is clear from the decisions of the Human Rights Committee of the United Nations is that the death penalty is regarded by it as cruel and inhuman punishment within the ordinary meaning of those words, and that it was because of the specific provisions of the International Covenant authorising the imposition of capital punishment by member States in certain circumstances, that the words had to be given a narrow meaning.
The European Convention on Human Rights
[68]Similar issues were debated by the European Court of Human Rights in Soering v United
- ↑ Joseph Kindler v Canada, United Nations Committee on Human Rights, Communication No 470/1991, 30 July 1993.
