18.
Apart from the above considerations, which in my
view demonstrate that there is no agreed or scientifically
proven standard to determine that judicial execution by
gas asphyxiation is more cruel and inhuman than other
methods of judicial execution, the plea of the author's
counsel contained in his submission to the Supreme Court
of Canada (prior to Ng's extradition) which was made
available to the Committee, in favour of "lethal injection"
(as opposed to "lethal gas") speaks for itself.
those remarks, the Government of Canada states, inter
alia, the following:
"While it may be that some methods of
execution would clearly violate the Covenant, it is
far from clear from a review of the wording of the
Covenant and the comments and jurisprudence of
the Committee, what point on the spectrum
separates those methods of judicial execution
which violate article 7 and those which do not".
19.
The Committee observes in the present Views
(paragraph 15.3) – and it has also held in the Kindler case
(paragraph 6.4) – that the imposition of the death penalty
(although, if I may add my personal view on this matter,
capital punishment is in itself regrettable under any point
of view and is obviously not in line with fundamental
moral and ethic principles prevailing throughout Europe
and other parts of the world) is still legally permissible
under the Covenant. Logically, therefore, there must be
methods of execution that are compatible with the
Covenant. Although any judicial execution must be
carried out in such a way as to cause the least possible
physical and mental suffering (see the Committee's
general comment 20 (44) on article 7 of the Covenant),
physical and mental suffering will inevitably be one of the
consequences of the imposition of the death penalty and
its execution. To attempt to establish categories of
methods of judicial executions, as long as such methods
are not manifestly arbitrary and grossly contrary to the
moral values of a democratic society and as long as such
methods are based on a uniformly applicable legislation
adopted by democratic processes, is futile, as it is futile to
attempt to quantify the pain and suffering of any human
being subjected to capital punishment. In this connection I
should also like to refer to the considerations advanced in
paragraph 9 of the joint individual opinion submitted by
Mr. Waleed Sadi and myself in the Kindler case (decision
of 30 July 1993, appendix).
15.
This argument is in line with the view of Professor
Cherif Bassiouni, who, in his analysis of what treatment
could constitute "cruel and unusual punishment", comes to
the following conclusion:
"The wide divergence in penological
theories and standards of treatment of offenders
between countries is such that no uniform standard
exists ... the prohibition against cruel and unusual
punishment can be said to constitute a general
principle of international law because it is so
regarded by the legal system of civilized nations,
but that alone does not give it a sufficiently defined
content bearing on identifiable applications
capable of more than general recognition".1
16.
In its submission, the Government of Canada
furthermore stressed that "none of the methods currently
in use in the United States is of such a nature as to
constitute a violation of the Covenant or any other norm of
international law. In particular, there is no indication that
cyanide gas asphyxiation, which is the method of judicial
execution in the State of California, is contrary to the
Covenant or international law". Finally, the Government
of Canada stated that it had examined "the method of
execution for its possible effect on Ng on facts specified to
him" and that it came to the conclusion that "there are no
facts with respect to Ng which take him out of the general
application outlined". In this context, the Government
made explicit reference to the Safeguards Guaranteeing
Protection of Those Facing the Death Penalty adopted by
the Economic and Social Council in its resolution 1984/50
of 25 May 1984 and endorsed by the General Assembly in
resolution 39/118 of 14 December 1984. The Government
of Canada has thus clearly taken into account a number of
important elements in its assessment of whether the
method of execution in California might constitute
inhuman or degrading treatment.
20.
It is therefore only logical that I also agree with the
individual opinion expressed by a number of members of
the Committee and attached to the present Views. Those
members conclude that the Committee should not go into
details in respect of executions as to whether acute pain of
limited duration or less pain of longer duration is
preferable and could be a criterion for the finding of a
violation.
21.
The Committee's finding that the specific method
of judicial execution applied in California is tantamount to
cruel and inhuman treatment and that accordingly Canada
violated article 7 of the Covenant by extraditing Mr. Ng to
the United States, is therefore, in my view, without a
proper basis.
17.
It is also evident from the foregoing that the
defendant State has examined the whole issue in depth and
did not deal with it in the cursory manner suggested in
paragraph 16.3 of the Committee's Views. The author and
his counsel were perfectly aware of this. Already in his
letter of 26 October 1989 addressed to the author's counsel,
the Minister of Justice of Canada stated as follows:
In the present case the defendant State, Canada, has done
its level best to respect its obligations under the Covenant
"You have argued that the method
employed to carry out capital punishment in
California is cruel and inhuman, in itself. I have
given consideration to this issue. The method used
by California has been in place for a number of
years and has found acceptance in the courts of the
United States".
22.
A final word ought to be said as far as Canada's
obligations under the Covenant are concerned.
23.
While recent developments in the jurisprudence of
international organs entrusted with the responsibility of
ensuring that individuals' human rights are fully respected
by State authorities, suggest an expansion of their
monitoring role (see, for example, the judgment of the
European Court of Human Rights in the Soering case,
1
Cherif Bassiouni, International Extradition and
World Public Order (Dobbs Ferry, Leyden, 1974), p. 465.
109
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