International humanitarian law

Abstract

In time of war, use of the death penalty generally becomes more frequent and the safeguards surrounding its use less stringent. Even the most advanced international instruments dealing with the death penalty, the abolitionist protocols adopted by the United Nations, the Council of Europe and the Organization of American States, tolerate the death penalty during wartime. In the case of Protocol No. 6 to the European Convention , only abolition in time of peace is envisaged by the instrument, although a draft Protocol Is currently being prepared to provide for abolition in wartime as well. The other protocols outlaw the death penalty in all cases, although they permit States parties, at the time of ratification, to make reservation for the death penalty in time of war. At least seventy-four countries have abolished the death penalty for all crimes, even in exceptional circumstances such as wartime. Of this group, forty-one have ratified the Second Optional Protocol without reservation and are therefore prohibited by international law from imposing the death penalty, even in time of war. Yet even citizens of fully abolitionist States remain exposed to the death penalty in time of war, if they have the misfortune to be confronted with a belligerent that retains capital punishment who is not bound by certain international norms, or if they fall into the hands of an organized group of combatants in the course of a non-international armed conflict.