Arbitrariness and the Death Penalty

Arbitrariness and the Death Penalty

A number of human rights instruments provide that a state may not take a person’s life “arbitrarily.”1 The text of these articles does not make clear what would constitute an arbitrary deprivation of life, but the Human Rights Committee (HRC) has held that “arbitrariness” encompasses “elements of inappropriateness, injustice and lack of predictability.”2 The HRC has not directly addressed the stickier issue of arbitrariness in the application of an otherwise legal capital sentence.

The Inter-American Court of Human Rights, however, has addressed the meaning of “arbitrary” executions in an advisory opinion regarding the interpretation of the Vienna Convention on Consular Relations.3 The court observed that states may impose the death penalty only if they rigorously adhere to the due process rights set forth in the ICCPR. The court concluded that the execution of a foreign national after his consular notification rights have been violated would constitute an “arbitrary deprivation of life” in violation of international law.4 By analogy, one could argue the execution of an individual is prohibited as “arbitrary” if a state violates any of the principles contained in the ICCPR.5

In jurisdictions where there is evidence of racial, ethnic, geographic, economic, or other disparities in the application of the death penalty, a strong argument can be made that the death penalty is imposed “arbitrarily” in violation of the above-cited treaty provisions. In the United States, for example, decisions to seek the death penalty are made by individual prosecutors. This results in substantial regional variations in the frequency with which the death penalty is sought. In California, for example, the prosecutor in San Francisco long opposed the death penalty and refused to seek it in any case, regardless of the facts of the crime. Less than 200 miles away, in Visalia, California, prosecutors regularly sought the death penalty in aggravated murder cases. This resulted in a geographic disparity that had nothing to do with the culpability of the offender, the facts of the crime, or the purported penological justifications for the death penalty (deterrence and retribution), and everything to do with the political whims of the prosecution.


Mary K. Newcomer, Arbitrariness and the Death Penalty in an International Context, 45 Duke L. J. 611, 1995.

Last updated on October 30, 2011.

1 ICCPR, art. 6, 999 U.N.T.S. 171, Dec. 16, 1966. American Convention on Human Rights, art. 4. African Charter on Human and Peoples’ Rights, art. 4.

2 Van Alphen v. The Netherlands, p. 108, para 5.8, Communication No. 305/1988, Report of the Human Rights Committee, U.N. Doc. A/45/40, Vol. II, Oct. 4, 1990.

3 Advisory Opinion OC-16/99, Inter-Am. Ct. H.R. Oct.1, 1999.

4 Advisory Opinion OC-16/99, p. 76, Inter-Am. Ct. H.R. Oct.1, 1999.

5 Daniel Nsereko, Arbitrary Deprivation of Life: Controls on Permissible Deprivations, in The Right to Life in International Law, Bertrand Ramcharan, 1985 (deprivation of life is arbitrary if it is done in conflict with international human rights standards or international humanitarian law).