paragraph 85; see also, in this context, the remarks on the
expanded notion of "victim", paragraph 6 above), the issue
of the extent to which, in the area of extradition, a State
party to an international human rights treaty must take into
account the situation in a receiving State, still remains an
open question. I should, therefore, like to repeat what I
stated together with Mr. Waleed Sadi in the joint
individual opinion in the Kindler case (decision of 30 July
1993, appendix). The same considerations are applicable
in the present case.
suffering and that every method of execution is bound to
cause some suffering.
However, I must admit that it is impossible for me
to specify which kind of suffering is permitted under
article 7 and what degree of suffering is not permitted
under the same article. I am totally incapable of indicating
any absolute criterion as to the scope of suffering
permissible under article 7. What I can say is that article 7
prohibits any method of execution which is intended for
prolonging suffering of the executed or causing unnecessary pain to him or her. As I do not believe that gas
asphyxiation is so intended, I cannot concur with the
Committee's view that execution by gas asphyxiation
violates article 7 of the Covenant.
24.
We observed in paragraph 5 of the joint individual
opinion that the allegations of the author concerned
hypothetical violations of his rights in the United States
(after the legality of the extradition had been tested in
Canadian Courts, including the Supreme Court of Canada),
and unreasonable responsibility was being placed on
Canada by requiring it to defend, explain or justify before
the Committee the United States system of administration
of justice. I continue to believe that such is indeed
unreasonable. Both at the level of the judiciary as well as at
the level of administrative proceedings, Canada has given
all aspects of Mr. Ng's case the consideration they deserve
in the light of its obligations under the Covenant. It has
done what can reasonably and in good faith be expected
from a State party.
[English original]
G. INDIVIDUAL OPINION SUBMITTED
BY MR. FRANCISCO JOSÉ AGUILAR URBINA (DISSENTING)
Extradition and the protection afforded by the Covenant
1.
In analysing the relationship between the Covenant
and extradition, I cannot agree with the Committee that
"extradition as such is outside the scope of application of
the Covenant" (Views, para. 6.1). I consider that it is
remiss – and even dangerous, as far as the full enjoyment
of the rights set forth in the Covenant is concerned – to
make such a statement. In order to do so, the Committee
relies on the pronouncement in the Kindler case to the
effect that since "it is clear from the travaux préparatoires
that it was not intended that article 13 of the Covenant,
which provides specific rights relating to the expulsion of
aliens lawfully in the territory of a State party, should
detract from normal extradition arrangements",1
extradition would remain outside the scope of the
Covenant. In the first place, we have to note that
extradition, even though in the broad sense it would
amount to expulsion, in a narrow sense would be included
within the procedures regulated by article 14 of the
Covenant. Although the procedures for ordering the
extradition of a person to the requesting State vary from
country to country, they can roughly be grouped into three
general categories: (a) a purely judicial procedure, (b) an
exclusively administrative procedure, or (c) a mixed
procedure involving action by the authorities of two
branches of the State, the judiciary and the executive. This
last procedure is the one followed in Canada. The
important point, however, is that the authorities dealing
with the extradition proceedings constitute, for this
specific case at least, a "tribunal" that applies a procedure
which must conform to the provisions of article 14 of the
Covenant.
[English original]
F. INDIVIDUAL OPINION SUBMITTED BY MR. NISUKE ANDO
(DISSENTING)
I am unable to concur with the Views of the
Committee that "execution by gas asphyxiation ... would
not meet the test of 'least possible physical and mental
suffering' and constitutes cruel and inhuman [punishment]
in violation of article 7 of the Covenant" (paragraph 16.4).
In the view of the Committee "the author has provided
detailed information that execution by gas asphyxiation
may cause prolonged suffering and agony and does not
result in death as swiftly as possible, as asphyxiation by
cyanide gas may take over 10 minutes" (paragraph 16.3).
Thus, the swiftness of death seems to be the very criterion
by which the Committee has concluded that execution by
gas asphyxiation violates article 7.
In many of the States parties to the Covenant
where the death penalty has not been abolished, other
methods of execution such as hanging, shooting,
electrocution or injection of certain materials are used.
Some of them may take a longer time and others shorter
than gas asphyxiation, but I wonder if, irrespective of the
kind and degree of suffering inflicted on the executed, all
those methods that may take over ten minutes are in
violation of article 7 and all others that take less are in
conformity with it. In other words, I consider that the
criteria of permissible suffering under article 7 should not
solely depend on the swiftness of death.
2.1
The fact that the drafters of the International
Covenant on Civil and Political Rights did not include
extradition in article 13 is quite logical, but on that
account alone it cannot be affirmed that their intention
was to leave extradition proceedings outside the protection
The phrase "least possible physical and mental
suffering" comes from the Committee's general
comment 20 (44) on article 7, which states that the death
penalty must be carried out in such a way as to cause the
least possible physical and mental suffering. This
statement, in fact, implies that there is no method of
execution which does not cause any physical or mental
1
Official Records of the General Assembly, Fortyeighth
Session,
Supplement
No. 40
(A/48/40),
annex XII.U, communication No. 470/1991 (Joseph
Kindler v. Canada), Views adopted on 30 July 1993,
para. 6.6.
110
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