While it is clear that conditions of detention on death row may violate Article 10(1) or Article 7 in the same way as conditions of detention elsewhere,139
most members of the HRC have consistently denied that the “death row phenomenon” per se violates these provisions. The Committee expanded on this
position in Errol Johnson v Jamaica.140 It reiterated that imposition of the death
penalty is permitted in narrow circumstances under Article 6 ICCPR. Detention on death row may be a necessary consequence of imposing the death penalty, and so cannot, of itself, be regarded as a violation of Articles 7 and 10(1)
ICCPR.141 Furthermore, making the length of time one waits for execution the
determining factor for a violation of Articles 7 and 10(1) would convey a message to States parties that they should carry out the death penalty as quickly as
possible after its imposition. As international law requires that the Covenant
be interpreted in light of its objects and purposes,142 which include reducing
recourse to the death penalty,143 the Committee rejected this interpretation.144
Therefore, in Errol Johnson v Jamaica the HRC, while conceding that keeping
prisoners on death row for many years is not acceptable, nonetheless declined
to find a violation of Articles 7 and 10(1) for pragmatic reasons.
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UN TREATY BODIES
factors regarding the author, the specific conditions of detention on death row, and
whether the proposed method of execution is particularly abhorrent.”136 Thus, the
Committee has held that execution by gas asphyxiation would constitute cruel
and inhuman treatment in violation of Article 7,137 whereas execution by lethal
injection may not.138
In particular cases, aggravating factors may render detention on death row a
violation of Articles 7 or 10(1). In this regard, “each case must be considered on
its own merits, bearing in mind the imputability of delays in the administration of
Kindler v Canada, HRC Communication No. 470/1991, 30 July 1993, §15.3.
Ng v Canada, HRC Communication No. 469/1991, 5 November 1993, §16.4. The case involved
extradition of Mr. Ng by Canada to the USA.
138
Kindler v Canada (1993), op. cit. See also Cox v Canada, HRC Communication No. 539/1993,
31 October 1994, §17.3.
139
See, for example, Freemantle v Jamaica, HRC Communication No. 625/1995, 24 March 2000,
§7.3
140
Errol Johnson v Jamaica (1996), op. cit. §§8.2-8.6.
141
See also Earl Pratt and Ivan Morgan v Jamaica, Nos. 210/1986 and 225/1987, 6 April 1989, §13.6;
Barrett and Sutcliffe v Jamaica, HRC Communication Nos. 270/1988 and 271/1988, 30 March
1992, §8.4;
142
Article 31, Vienna Convention on the Law of Treaties.
143
To support this position, the HRC referred to its General Comment No. 20, 1992, §16 and the
Preamble to the Second Optional Protocol to the Covenant Aiming at the Abolition of the
Death Penalty.
144
Errol Johnson v Jamaica (1996), op. cit., §8.2, 8.4.
136
137
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