The World Day Against the Death Penalty is observed every Oct. 10. This year, the theme is the relationship between capital punishment and torture. The two have not always been thought of as one and the same, but the world coalition to end the death penalty is spending this year to draw attention to the connection.
Torture or other cruel, inhuman and degrading treatment or punishment (CIDTP) is prohibited under international law and the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In the past two decades, there has been growing international acceptance that torture is built into the death penalty process. While the death penalty is allowed under international law, it is highly regulated with a strict applicability to only the most serious crimes.
The torture of a death-row inmate might take place during interrogation, while awaiting execution or upon execution. The impending fate of execution is not solely borne by the inmate, but also by family and loved ones. In 2019, the UN Human Rights Committee for the first time said that certain methods of execution constitute torture or CIDTP.
The physical and psychological torture of a death-row inmate is manifested throughout their life. This torture is so ubiquitous that it has been categorized as the death-row phenomenon. The death-row phenomenon was first acknowledged in the case of Soering v United Kingdom (1989). The European Court of Human Rights ruled that the death-row living conditions in Virginia were too poor to extradite a German national to stand trial there if there was a possibility of execution.
The phenomenon is no stranger to the 38 death-row prisoners in Taiwan. In testimony collected by the Taiwan Alliance to End the Death Penalty, inmates held in the same facility as Weng Jen-hsien (翁仁賢) — the most recent prisoner in Taiwan to be executed — shared their memories of his final moments.
“Weng Jen-hsien was unwilling to let the prison guards take him out of his cell and resisted strongly. Other prisoners were locked in their cells with the small glass window on the door covered, so that they could not see the condition outside. The guards called for more help to assist them. In the end, Weng Jen-hsien was dragged along the corridor, and the sound of shackles, handcuffs and floor tiles colliding was even more eerily deafening and frightening in the quiet prison in the evening,” they said.
“There was another death-row prisoner, lying beside the door, looking out from the hole where the food was delivered. He just happened to meet the eyes of Weng Jen-hsien, who was being dragged away. Jen-hsien shouted: ‘My brothers, take care. I’ll leave first.’ And then he was taken to the execution ground,” they said.
Taiwan is not isolated from torture, as inmates can attest to, despite Taiwan having ratified the ICCPR in 2009. Article 7 of the ICCPR says: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”
In May, when the International Review Conference for the Republic of China’s Third National Report on the Two Covenants was held, the international panel of human rights experts raised a number of concerns about Taiwan’s laws on death penalty and torture.
During the 2017 Second International Review Conference, the government said it would adopt the Enforcement Act of the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. In 2020, the Cabinet approved a draft bill, which has since been in limbo awaiting the legislature’s review. The government has said that a committee in the Control Yuan has to be established first before anything can move forward.
During this year’s review, non-governmental organizations reported that the death penalty was a form of torture and therefore this sentencing violated Article 7 of ICCPR. In the government’s report, this issue was not addressed.
“We are strongly appealing to the Executive Yuan to immediately declare a moratorium on executions,” Austrian human rights lawyer Manfred Nowak, the UN special rapporteur on torture from 2004 to 2010, announced on behalf of the international human rights experts during the review process.
The “cruel, inhuman and degrading” punishment was in violation of ICCPR’s articles 6 (the right to life) and 7, Nowak said.
The international arena has expanded the definition of torture to constitute capital punishment as a practice of cruel and unusual punishment. Will there be a time that the Ministry of Justice or the Executive Yuan accept it as such? Does associating capital punishment as a form of torture force us to think differently about this type of sentencing? Questions like these are important and need to be raised as we mark the 20th anniversary of the World Day Against the Death Penalty on Monday.
Maria Wilkinson is an English correspondent for the Taiwan Alliance to End the Death Penalty.
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