A/67/279 children and would therefore amount to a violation of the prohibition of torture and cruel, inhuman and degrading treatment. 63. The death penalty may also not be carried out on pregnant women and, according to the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa and the safeguards approved by the Economic and Social Council in its resolution 1984/50, recent mothers. Article 4, paragraph 5, of the American Convention on Human Rights prohibits the imposition of capital punishment on persons who, at the time the crime was committed, were over 70 years of age. In its resolution 1989/64, on the implementation of the aforementioned safeguards, the Economic and Social Council recommended that States strengthen further the protection of the rights of those facing the death penalty by eliminating it for persons suffering from mental retardation or extremely limited mental competence, whether at the stage of sentence or execution. The Commission on Human Rights also adopted several resolutions urging all States not to impose the death penalty on, or to execute, any person suffering from any form of mental disorder (e.g., Commission resolution 2003/67). The Human Rights Committee has stated that the reading of a death warrant for the execution of a mentally incompetent person is a violation of article 7 of the Covenant. In Atkins v. Virginia (2002), the United States Supreme Court ruled that executing mentally disabled individuals violated the ban on cruel and unusual punishment and that the prohibition of such punishment should be interpreted in the light of the evolving standard of decency that marked the progress of a maturing society. 49 The reasoning for the prohibition of the death penalty in these cases is the same as that for juveniles and children. It is inherently cruel to execute pregnant women, nursing mothers, elderly persons and persons with mental disabilities and it leads to a violation of the prohibition of torture and cruel, inhuman and degrading treatment. 64. Not only is the enforcement of the death penalty in these cases considered a violation per se of the prohibition of torture and cruel, inhuman and degrading treatment and punishment but the related State practice has led to the emergence of a jus cogens provision regarding the execution of juveniles. B. Possible emergence of a customary norm 65. Some fundamental human rights standards, such as the prohibition of torture, are a norm of customary international law. The prohibition is non-derogable even in times of emergency and, in addition, is an imperative norm in international law that no State is allowed to ignore (jus cogens). The Statute of the International Court of Justice defines international customary law as evidence of a general practice accepted as law (Art. 38, para. 1b). This is generally determined through two factors: the general practice of States and what States have accepted as law (opinio juris). States are typically bound by international customary law regardless of whether they have codified such law domestically or through treaties. Evidence for both aspects, State practice and opinio juris, is found in the signature and ratification of treaties, in public statement of policy, in votes on resolutions of political organs etc. Discussed below is whether a customary rule against the death penalty is emerging or has emerged. __________________ 49 12-45812 United States Supreme Court, Atkins v. Virginia, 536 U.S. 304 (2002). 17