article 6 of the Covenant. The question of whether the
fact that Canada had abolished capital punishment except
for certain military offences required its authorities to
refuse extradition or request assurances from the United
States to the effect that the death penalty would not be
imposed on Mr. Charles Chitat Ng, must, in my view,
receive an affirmative answer.
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. The State party had the opportunity to
refute these allegations on the facts; it has failed to
do so. Rather, the State party has confined itself to
arguing that in the absence of a norm of
international law which expressly prohibits
asphyxiation by cyanide gas, "it would be
interfering to an unwarranted degree with the
internal laws and practices of the United States to
refuse to extradite a fugitive to face the possible
imposition of the death penalty by cyanide gas
asphyxiation".
Regarding the death penalty, it must be recalled
that, although article 6 of the Covenant does not prescribe
categorically the abolition of capital punishment, it
imposes a set of obligations on States parties that have not
yet abolished it. As the Committee pointed out in its
general comment 6 (16), "the article also refers generally
to abolition in terms which strongly suggest that abolition
is desirable". Furthermore, the wording of paragraphs 2
and 6 clearly indicates that article 6 tolerates – within
certain limits and in view of future abolition – the
existence of capital punishment in States parties that have
not yet abolished it, but may by no means be interpreted as
implying for any State party an authorization to delay its
abolition or, a fortiori, to enlarge its scope or to introduce
or reintroduce it. Accordingly, a State party that has
abolished the death penalty is, in my view, under the legal
obligation, under article 6 of the Covenant, not to
reintroduce it. This obligation must refer both to a direct
reintroduction within the State party's jurisdiction, as well
as to an indirect one, as is the case when the State acts –
through extradition, expulsion or compulsory return – in
such a way that an individual within its territory and
subject to its jurisdiction may be exposed to capital
punishment in another State. I therefore conclude that in
the present case there has been a violation of article 6 of
the Covenant.
16.4 In the instant case and on the basis of the
information before it, the Committee concludes that
execution by gas asphyxiation, should the death
penalty be imposed on the author, would not meet the
test of "least possible physical and mental suffering",
and constitutes cruel and inhuman treatment, in
violation of article 7 of the Covenant. Accordingly,
Canada, which could reasonably foresee that Mr. Ng,
if sentenced to death, would be executed in a way
that amounts to a violation of article 7, failed to
comply with its obligations under the Covenant, by
extraditing Mr. Ng without having sought and
received assurances that he would not be executed.
16.5 The Committee need not pronounce itself on
the compatibility with article 7 of methods of
execution other than that which is at issue in this
case.
Regarding the claim under article 7, I agree with
the Committee that there has been a violation of the
Covenant, but on different grounds. I subscribe to the
observation of the Committee that "by definition, every
execution of a sentence of death may be considered to
constitute cruel and inhuman treatment within the
meaning of article 7 of the Covenant". Consequently, a
violation of the provisions of article 6 that may make
such treatment, in certain circumstances, permissible,
entails necessarily, and irrespective of the way in which
the execution may be carried out, a violation of article 7
of the Covenant. It is for these reasons that I conclude in
the present case that there has been a violation of
article 7 of the Covenant.
17. The Human Rights Committee, acting under
article 5, paragraph 4, of the International Covenant
on Civil and Political Rights, is of the view that the
facts as found by the Committee reveal a violation
by Canada of article 7 of the Covenant.
18. The Human Rights Committee requests the
State party to make such representations as might
still be possible to avoid the imposition of the death
penalty and appeals to the State party to ensure that a
similar situation does not arise in the future.
[English original]
* The texts of eight individual opinions, submitted by
nine Committee members, are appended.
B. INDIVIDUAL OPINION SUBMITTED
BY MESSRS. A. MAVROMMATIS AND W. SADI (DISSENTING)
APPENDIX
Individual opinions submitted under rule 94,
paragraph 3, of the rules of procedure
of the Human Rights Committee
We do not believe that, on the basis of the material
before us, execution by gas asphyxiation could constitute
cruel and inhuman treatment within the meaning of article
7 of the Covenant. A method of execution such as death
by stoning, which is intended to and actually inflicts
prolonged pain and suffering, is contrary to article 7.
A. INDIVIDUAL OPINION SUBMITTED BY MR. FAUSTO
POCAR (PARTLY DISSENTING, PARTLY CONCURRING AND
ELABORATING)
Every known method of judicial execution in use
today, including execution by lethal injection, has come
under criticism for causing prolonged pain or the necessity
I cannot agree with the finding of the Committee
that in the present case, there has been no violation of
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