At the same time, most OSCE countries have abolished the death penalty. In 49 OSCE participating States, the death penalty has been abolished for all crimes. In two states — Latvia and Kazakhstan — the death penalty has been abolished for crimes committed in peacetime, but is retained for crimes committed in wartime. In two states — the Russian Federation and Tajikistan — the death penalty is retained for crimes committed in peacetime, but executions are not carried out. Belarus, the United States of America and Uzbekistan are the only OSCE participating States where the death penalty is retained for crimes committed in peacetime, and where legally sanctioned executions are carried out. In the context of counter-terrorism, the following observations have been made in regard to the death penalty: • In its General Comment No. 29 on states of emergency, the Human Rights Committee reiterated its view that, “as [ICCPR] Article 6 is non-derogable in its entirety, any trial leading to the imposition of the death penalty during a state of emergency must conform to the provisions of the Covenant […]”295; • In one set of concluding observations, the Committee has expressed disapproval of the mandatory imposition of the death penalty for a number of crimes, including terrorism.296 The key points in relation to the death penalty under international law can be summarized as follows: • The death penalty is not outlawed under international law. Its existence is acknowledged by both Article 2(1) ECHR and Article 6(2) ICCPR. • Article 6(2) ICCPR says that the death penalty must be restricted to the most serious crimes. A crime of “terrorism” per se is unlikely to be sufficiently clearly defined to permit the death penalty. • If imposed, there must be procedural safeguards. These would include provision for a sentencing hearing, guided discretion in its imposition, provision for appellate review, and provision for pardon or mercy. The UN Human Rights Committee has held that “the provision that a sentence of death may be imposed only in accordance with the law and not contrary to the provisions of the Covenant implies that the procedural guarantees therein including the right to a fair trial before an independent tribunal, the presumption of innocence, the minimum guarantees for the defence and the right to review by a higher court.”297 If the initial trial was unfair in relation to the highest standards of fairness, it is never appropriate to apply the death penalty. • There are restrictions to protect certain citizens from the death penalty. In accordance with Article 6(5) of the ICCPR, the death penalty must not be imposed on persons below eighteen years of age and shall not be carried out on pregnant women. Further to these two categories of persons, the ECOSOC Safeguards extend this restriction to the elderly, mothers with dependent infants, the insane and the mentally disabled.298 • Right to seek pardon or commutation is also envisaged by the ICCPR (Article 6(4), and has been reaffirmed by General Comment No. 6, the ECOSOC Safeguards, and Resolution 2005/59 of the UN Commission on Human Rights. • The manner of execution of the death penalty must not involve the infliction of unnecessary suffering over and above that necessary to end life. On this basis, it was held that death by 295 Op. cit., note 221, HRC, General Comment No. 29, para. 15. 296 HRC, Concluding observations: Uganda, doc. CCPR/CO/80/UGA, 4 May 2004, para. 13. 297 HRC, Carlton Reid v. Jamaica, Communication no. 250/1987, doc. CCPR/C/39/D/250/1987, 20 July 1990, para. 11.5. See also op. cit., note 237, HRC, General Comment 6, para. 7. 298 ECOSOC, Resolution 1984/50 “Safeguards guaranteeing protection of the rights of those facing the death penalty”, 25 May 1984, para. 3. 112 Countering Terrorism, Protecting Human Rights