Aadel Collection
Extrajudicial, summary or arbitrary executions Report of the Special Rapporteur, Philip Alston
UNIItL )
NATIONS
Economic and Social
Council
COMMISSION ON HUMAN RIGHTS
Sixty-ffirst session
Item 11(b) of the provisional agenda
Distr.
GENERAL
E/CN.4/2005/7
22 December 2004
Original: ENGLISH
CIVIL AND POLITICAL RIGHTS, INCLUDING THE QUESTIONS OF
DISAPPEARANCES AND SUMMARY EXECUTIONS
Extrajudicial, summary or arbitrary executions
Report of the Special Rapporteur, Philip Alston
C
GE.05-10134 (E) 310105
E/CN.4/2005/7
page 2
Summary
This report begins with an outline of the Special Rapporteur's terms of reference, legal
framework, and methods of work. In this ffirst report by the new Special Rapporteur, the
emphasis is on continuity in all these respects, although a diLerent approach is adopted in terms
of the focus and format of the report itself
In relation to communications, the report summarizes, in broad categories, the issues
raised and emphasizes the importance of the addendum (E/CN.4/2005/7/Add. 1) containing full
details of correspondence with Governments. Several changes of approach are noted, designed
to improve a governmental response rate of only 54 per cent.
In relation to country visits, details are provided of requests made and a follow-up
procedure is outlined.
The analytical part of the report focuses in depth on a narrow range of issues, with an
overall emphasis on accountability. The four principal topics addressed are: (i) genocide and
crimes against humanity; (ii) violations of the right to life in armed conflict and internal strife;
(iii) capital punishment; and (iv) violations of the right to life by non-State actors.
The report concludes with a succinct set of conclusions and recommendations.
Introduction .
THE MANDATE .
A. Terms of reference
B. Violations of the right to life upon which the
Special Rapporteur takes action
C. Legal fflamework and methods of work
II. ACTIVITIES
A. General remarks
B. Communications
C. Visits
III. OVERVIEW OF SELECTED ISSUES OF CONCERN AND
THE KEY CHALLENGE OF ACCOUNTABILITY
A. Genocide and crimes against humanity
B. Violations of the right to life in armed conflict
and internal strife
C. Capital punishment
D. Violations of the right to life by non-State actors
IV. CONCLUSIONS AND RECOMMENDATIONS
A. Conclusions
B. Recommendations
CONTENTS
E/CN.4/2005/7
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Paragraphs Page
1-4 4
5-12 4
5 -7 4
8 5
9-12 5
13-31 6
13 6
14-24 6
25-31 11
32-76 13
36-40 14
41-54 15
55 -64 17
65 -76 19
77-88 22
77-81 22
82-88 22
E/CN.4/2005/7
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Introduction
1. This is the ffirst report submitted to the Commission on Human Rights by Philip Aiston
subsequent to his appointment as Special Rapporteur on extrajudicial, summary or arbitrary
executions in August 2004. He is the fourth person to hold this mandate since it was
established 22 years ago as the ffirst of the Commission's thematic special rapporteurs.' The
report is submitted pursuant to Commission on Human Rights resolution 2004/37.
2. The report takes account of information received and communications sent in the period
from 1 December 2003 to 30 September 2004. It should be noted, however, that the addendum
to the present report - which contains the details of the communications sent and the replies
received - follows a different chronology, the details of which are explained below. 2
3. In general, this report is intended to ensure continuity within the mandate. It thus follows
the approach taken by the previous Special Rapporteur, Asma Jahangir, as well as by her
predecessors, Amos Wako and Bacre Waly Ndiaye. During her six years as Special Rapporteur,
Ms. Jahangir brought deep commitment, dynamism and extraordinary insight to her role. OEe
new Special Rapporteur considers his task to be twofold: to maintain and build upon the
successful eLorts already undertaken under this mandate, and to contribute in a constructive way
to its future evolution.
4. In that spirit, the present report is structured differently from previous reports. The
assumption is that there is no ffixed formula for such reports and that what matters is the
advancement of the values underpinning the mandate. The best means by which that can be
done will change over time and the Special Rapporteur intends to vary his approach in response
to particular challenges and concerns.
I. THE MANDATE
A. Terms of reference
5. The principal activities foreseen under the Special Rapporteur's mandate are to collect
information from all concerned, to respond effectively to reliable information, to undertake
country visits, to follow up on communications and country visits, to seek the views and
comments of Governments, and to reflect each of those factors in his overall report.
6. The terms of reference of this mandate are not best understood through eLorts to deffine
individually the terms extrajudicial”, summary” or arbitrary”, or to seek to categorize any
given incident accordingly. These terms had important roles to play in the historical evolution of
the mandate but today they tell us relatively little about the real nature of the issues. The broad
coverage of the mandate as it now exists reflects the very real needs perceived over time by the
Commission to be able to respond to a range of contexts in which killings have taken place in
circumstances which contravene international law and which the Commission has determined
require a response. OEus, the most productive focus is on the mandate itself, as it has evolved
over the years through the various resolutions of the General Assembly and the Commission.
E/CN.4/2005/7
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7. On the basis of the agreed legal framework of the mandate, as reflected in the relevant
resolutions of the Commission on Human Rights and the General Assembly, the
Special Rapporteur's terms of reference include the following:
(a) To examine situations of extrajudicial, summary or arbitrary executions and to
submit ffindings, together with conclusions and recommendations, to the Commission;
(b) To respond effectively to information, including situations when an extrajudicial,
summary or arbitrary execution is imminent or seriously threatened, or has occurred;
(c) To engage in a constructive dialogue with Governments, and to follow up on
recommendations made aifier country visits;
(d) To pay special attention to extrajudicial, summary or arbitrary executions of
women and to ensure that a gender perspective is reflected in the work under the mandate;
(e) To pay special attention to extrajudicial, summary or arbitrary executions of
children, and of persons belonging to minorities;
(f) To pay special attention to extrajudicial, summary or arbitrary executions where
the victims are individuals carrying out peaceful activities in defence of human rights, including
those participating in demonstrations and other peaceful public manifestations;
(g) To monitor the implementation of international standards, including safeguards
and restrictions, relating to the imposition of capital punishment, bearing in mind the comments
made by the Human Rights Committee in its interpretation of article 6 of the International
Covenant on Civil and Political Rights, as well as the Second Optional Protocol thereto.
B. Violations of the right to life upon which
the Special Rapporteur takes action
8. The Special Rapporteur follows the guidelines developed by his predecessors, which
were restated most recently in the report to the Commission in 2002 (E/CN.4/2002/74, para. 8).
C. Legal framework and methods of work
9. In addition to, and in conformity with, the relevant resolutions of the Commission and of
the General Assembly, the work of the Special Rapporteur reflects the provisions of the
Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights
(especially articles 6, 14 and 15), and the Convention on the Rights of the Child (especially
article 37), as well as other treaties, resolutions, conventions and declarations adopted by
United Nations bodies relating to violations of the right to life.
10. The legal framework includes principles and guidelines speciffied in:
(a) The Principles on the ELective Prevention and Investigation of Extra-legal,
Arbitrary and Summary Executions;
E/CN.4/2005/7
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(b) The Basic Principles on the Use of Force and Firearms by Law Enforcement
Off cials;
(c) The Rome Statute of the International Criminal Court;
(d) The Declaration of Basic Principles of Justice for Victims of Crime and Abuse
of Power.
11. The Special Rapporteur's principal methods of work are: (i) sending urgent appeals”
requesting action by Governments in response to emergency cases; (ii) responding to individual
complaints by communicating the details to Governments, with a summary of the facts and a
request for clariffication (methods (i) and (H) are pursued only where suffcient information is
available and has been provided by a well-known or credible source); (Hi) issuing press
statements where appropriate to the circumstances; (iv) undertaking country visits designed to
ascertain the facts on a ffirst-hand basis, to situate issues within a broader perspective, and to
work in a spirit of cooperation with Governments; and (v) undertaking general promotional
activities to advance the objectives identiffied by the Commission on Human Rights and the
General Assembly.
12. The Special Rapporteur has been greatly assisted in the conduct of his work by the staL
of the Offfice of the High Commissioner for Human Rights whose expertise and professionalism
are greatly appreciated.
II. ACTIVITIES
A. General remarks
13. Shortly aifier assuming offce, the Special Rapporteur undertook intensive consultations
with diplomats and other governmental representatives, as well as with key civil society actors
who are knowledgeable about the issues dealt with under his mandate. These consultations were
extremely valuable and the shape of the present report reflects some of the suggestions made in
the course of those discussions. A consultative approach will continue to be adopted in relation
to this mandate and the Special Rapporteur welcomes comments, whether critical or otherwise,
in the spirit of discouraging and deterring killings, exposing those that do occur, and holding
Governments to account where they are responsible or have failed to take appropriate steps in
response to the actions of others.
B. Communications
14. The mandate conferred upon the Special Rapporteur to engage in communications with
Governments in response to credible allegations is a part of one of the most signifficant functions
conferred upon the Commission. It is thus of the utmost importance that Governments should
respond in the spirit of a constructive dialogue on matters of concern.
15. It is equally important for the Special Rapporteur to ensure that such exchanges are frank,
productive and focused. For his part the Special Rapporteur has endeavoured to eliminate, or at
least temper, the arcane and oifien impenetrable language traditionally used in communicating
with Governments. He will seek to be precise in relation to the object of his concerns and to
E/CN.4/2005/7
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emphasize tangible results rather than formal outputs. OEus, the sending of fewer but more
detailed, reasoned and targeted communications is preferable to engaging in a larger number of
pro forma exchanges.
16. This report covers communications 3 sent and received by both the present
Special Rapporteur and his predecessor in the course of 2OO4. In their annual reports, previous
Special Rapporteurs have highlighted a wide range of situations brought to their attention
through communications. This year, in part because the Special Rapporteur is new to the post, as
well as to encourage greater attention to the specifficities of the situations detailed in the
addendum to this report and to allow for a more detailed treatment of issues of particular
concern, this report has adopted a diLerent approach.
17. This part of the report begins by summarizing the range of issues dealt with in the
addendum, which pertains to the period covered by the present report. It should be emphasized
that the addendum is an integral, and for some purposes even the most important part of the
report on work done under this mandate. In order to facilitate its use as a reference document a
summary of all actions taken in relation to each State has been introduced at the beginning of this
year's report.
18. In the period under review, the Special Rapporteur transmitted 201 communications
to 63 countries (including 112 urgent appeals and 89 letters of allegations) concerning a
total of 1,799 individuals. A breakdown of the subjects of those appeals shows that they
involved 578 males, 94 females, 1,134 persons of unknown sex, 152 minors, 105 refugees,
some 500 internally displaced persons, 30 members of religious minorities, 270 members of
ethnic or indigenous minorities, 29 human rights defenders, 19 journalists, 19 persons exercising
their right to freedom of opinion and expression, 7 persons (including 1 child) killed in the name
of passion or of honour, 4 persons killed for various discriminatory reasons, including their
sexual orientation, and 3 lawyers and judges.
19. The Special Rapporteur sent communications to the Governments of the following
countries in relation to the situations speciffied:
(a) Non-respect of international standards relating to the imposition of capital
punishment: Afghanistan (1), Barbados (1), China (7, including 1 minor at the time of the
crime), Indonesia (2), Iran (Islamic Republic of) (10, including the cases of 4 minors at the time
of their execution or when the death sentence was handed down), Iraq (1), Japan (1),
Kazakhstan (1), Lebanon (1), Libyan Arab Jamahiriya (1), Myanmar (2), Pakistan (4, including
2 communications for the same individual), Sudan (2), Tajikistan (3), United States of America
(10, including 1 minor at the time of committing the crime), Uzbekistan (2) and Yemen (1);
(b) Death threats and fear of imminent extrajudicial executions by State offcials,
paramilitary groups, or groups cooperating with or tolerated by the Government, as well as
unidentiffied persons who may be linked to the categories mentioned above and when the
Government is failing to take appropriate protection measures: Algeria (1), Azerbaijan (1),
Bangladesh (1), Brazil (1), Cameroon (1), Chile (1), China (1), Colombia (9), C6te d'Ivoire (2),
E/CN.4/2005/7
page 8
Democratic Republic of the Congo (6), Ecuador (3), Equatorial Guinea (1), Honduras
(2, including 1 concerning a human rights defender), India (1), Indonesia (1), Iran (Islamic
Republic of) (1), Malaysia (1), Mexico (1), Pakistan (2), Peru (3), Russian Federation (1),
Sri Lanka (2), Thailand (1), OEe former Yugoslav Republic of Macedonia (1, concerning
2 minors), Turkey (1), Uzbekistan (1), Venezuela (2) and Viet Nam (1);
(c) Deaths in custody due to torture, neglect, or the use of force, or fear of death in
custody due to life-threatening conditions of detention: Brazil (1), Cameroon (1), China (1),
Colombia (1), Democratic Republic of the Congo (2), Egypt (4), Equatorial Guinea (1),
Honduras (1, including 105 minors), India (3), Malaysia (1), Mauritania (1), Mexico (1),
Nepal (2), Pakistan (3), Sri Lanka (2), Sudan (1), Togo (1), Tunisia (1), Turkmenistan (1),
Uganda (1) and Ukraine (1);
(d) Deaths due to the use of force by law enforcement offcials or persons acting in
direct or indirect compliance with the State, when the use of force is inconsistent with the criteria
of absolute necessity and proportionality: Algeria (1), Angola (1), Bangladesh (1),
C6te d'Ivoire (1), Equatorial Guinea (1), Ethiopia (1), Haiti (2), Honduras (1 concerning
2 minors), India (1), Indonesia (1), Jamaica (1), Lao People's Democratic Republic (1),
Lebanon (1), Morocco (1), Mexico (1), Pakistan (2), Sri Lanka (4), Syrian Arab Republic (1),
Thailand (2), The former Yugoslav Republic of Macedonia (1), Venezuela (1), Yemen (1) and
Zimbabwe (1);
(e) Deaths due to attacks or killings by security forces of the State, or by paramilitary
groups, death squads, or other private forces cooperating with or tolerated by the State:
Afghanistan (1), Colombia (4), Democratic Republic of the Congo (2), Myanmar (4), Nepal (3),
Philippines (3), Russian Federation (2) and Viet Nam (1);
(f) Violations of the right to life during armed conflicts, especially of the civilian
population and other non-combatants, contrary to international humanitarian law: Israel (5),
Sudan (1), United Kingdom of Great Britain and Northern Ireland (1) and United States of
America (1);
(g) Expulsion, refoulement, or return of persons to a country or a place where their
lives are in danger: Malaysia (1), Sweden (1), United States of America (1) and Zimbabwe (1);
(h) Impunity, compensation and the rights of victims: Bolivia (1), Pakistan (2),
Thailand (1), The former Yugoslav Republic of Macedonia (1), Togo (1), Turkey (1) and
United Kingdom of Great Britain and Northern Ireland (1).
20. In addition, in the spirit of the resolutions of the Commission dealing with the rights of
women and with the rights of children, the following breakdown indicates the situation in
relation to those categories:
(a) Violations of the right to life of women: Bangladesh (1) death threats; Brazil (1)
death threats; Cameroon (1) death threats; Chile (1) death threats; China (2) death threats;
Colombia (5) death threats, (2) attacks by armed groups tolerated by the State and (1) death in
custody; Democratic Republic of the Congo (1) death threats and (1) attacks by paramilitary
groups tolerated by the State; Equatorial Guinea (1) fear of death in custody; Honduras (1) death
E/CN.4/2005/7
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threats; Indonesia (1) non-respect of international standards relating to the imposition of capital
punishment; han (Islamic Republic of) (3) non-respect of international standards relating to the
imposition of capital punishment and (1) death threats; Israel (1) violation of the right to life
during an armed conflict contrary to international humanitarian law; Lao People's Democratic
Republic (1) death due to excessive use of force; Lebanon (1) death due to excessive use of
force; Libyan Arab Jamahiriya (1) non-respect of standards relating to the imposition of capital
punishment; Mexico (1) death threats; Myanmar (4) death due to attacks or killings by armed
forces; Nepal (2) death due to attacks or killings by armed forces and (1) death in custody;
Pakistan (1) death threats and (2) honour killings; Peru (1) death threats; Philippines (2) death
due to attacks or killings by security forces; Sudan (1) non-respect of international standards
relating to the imposition of capital punishment and (1) violation of the right to life in an
armed conflict contrary to international humanitarian law; The former Yugoslav Republic of
Macedonia (1) death threats; Turkey (1) honour killing and (1) death threats; and Venezuela (1)
death threats. A communication was also sent to the Palestinian Authority (1) violation of the
right to life in an armed conflict contrary to international humanitarian law;
(b) Violations of the right to life of children: Colombia (1) death threats and
(1) ethnic minority; Honduras (1) death in custody and (1) death due to excessive use of force;
Iran (Islamic Republic of) (4) non-respect of international standards relating to the imposition of
capital punishment; Israel (1) violation of the right to life in an armed conflict contrary to
international humanitarian law; Kenya (1) allegedly killed for membership of an ethnic minority;
Lao People's Democratic Republic (1) death due to excessive use of force; Myanmar (2) death
due to attacks or killings by armed forces; Nepal (1) death in custody and fear of death in
custody and (2) death due to attacks or killings by armed forces; Pakistan (1) honour killings;
Philippines (2) death due to attacks or killings by security forces; Syrian Arab Republic (1) death
due to excessive use of force; OEe former Yugoslav Republic of Macedonia (1) death threats;
Turkey (1) death threats; and Venezuela (1) death threats. A communication was also sent to the
Palestinian Authority (1) violation of the right to life in an armed conflict contrary to
international humanitarian law.
21. Overall, the proportion of government replies received to communications sent during the
period under review remains low, on average of 54 per cent. 5 OEis means that almost half of all
communications sent drew no response from the Government concerned within a reasonable
time period.
22. This response rate must be considered problematic, particularly in the case of a
long-established procedure which, for the most part, addresses issues as grave as alleged
violations of the right to life. Several steps are thus being adopted by the Special Rapporteur in
the hope of enhancing the rate of responsiveness on the part of Governments. First,
communications will be more precise in detailing the Special Rapporteur's concerns and the
measures that might be considered by Governments under the circumstances. Second, the
amount of information sought in relation to most cases will be reduced and the questions posed
streamlined. Third, the responses received will be classiffied according to ffive categories
designed to assist the Commission in its task of evaluating the eLectiveness of the mandate.
Those categories are as follows (the ffigure in brackets is the percentage of replies which fell into
each category in 2004):
1. Substantive response” denotes a reply clarifying a case (17 per cent).
2. Partial response” denotes a reply providing some information, or where
additional details have been sought (20 per cent).
3. Allegations denied” denotes a reply denying the allegations made (14 per cent).
4. Acknowledged” denotes an acknowledgement of receipt of a communication,
not followed by the provision of any substantive information (2 per cent).
5. No response” (46 per cent).
6. Awaiting translation” (1 per cent).
23. The information contained in the preceding paragraphs is also reflected in the following
graphs which help to visualize the range of issues dealt with and the types of replies received.
Death due to
attacks or ktlings
by security forces or
paramilitary groups
tolerated by the
State
10%
K
Death due to
excessive use of
force
14%
Violations ofthe
right to life during
armed conflicts
coritraryto
international
humanitarian law
4%
Expulsion,
1 —refoulement
/ 2% lmpun'dy
4%
Non-respect of
international
standards relating
to the imposition of
capital punishment
25.5%
Death threats and
fear for the safety
25.5%
Aknowle d g ed
Awaiting translation
2%
Fi/CN .4/2005/7
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Death in custody
15%
Substantive
responses
17%
Partial responses
20%
No response
46%
Allegations denied
14%
E/CN.4/2005/7
page 11
24. Finally, in relation to communications, the Special Rapporteur notes that a
response submitted by the Government of Ghana and included in the addendum to the report
to the Commission in 2004 should have been, but was not also taken into account in the
Special Rapporteur's report to the General Assembly (E/CN.4/2004/7/Add. 1, para. 155).
C. Visits
1. Requests for visits made in 2004 and responses received
25. As noted above, country visits are an essential part of the mandate and are designed to
ascertain the facts on a ffirst-hand basis, to situate issues within a broader perspective, and to
enable the Special Rapporteur to work in a spirit of cooperation with Governments.
26. During the course of 2004 a number of visits have been requested. Replies have been
received in some but not all of those instances. OEe details are as follows:
(a) Islamic Republic of han: a request was made on 14 January 2004, noting that a
standing invitation has been extended by the Government. OEe following day a reply was
received indicating that a visit would be acceptable in principle but would have to be considered
in the context of missions sought by other special procedures. No further information has been
provided in response to subsequent inquiries;
(b) Nigeria: letters of request were sent on 28 January and 22 May 2003.
On 12 July 2004 a response indicated that the visit would be scheduled in 2005. Further
clariffication is being sought and the Special Rapporteur is optimistic that a visit will take place;
(c) Russian Federation: a request was made on 17 September 2004. OEe
Government replied on 8 October 2004 stating that a reference in the Special Rapporteur's letter
to Commission resolution 2000/58 was OEewildering and inappropriate” because the
Government had never considered [ itself] to be bound” by that resolution. OEe letter added
that, due to a tight schedule of planned visits of international organizations' delegations to the
Northern Caucasus, the consideration of the possibility to extend an invitation to the Special
Rapporteur to visit the Russian Federation is at this stage irrelevant”. OEe Special Rapporteur
notes that a visit by the Special Rapporteur on violence against women is scheduled for
December 2004, and that various other special procedures have made requests in recent years;
(d) Indonesia: a request was made, especially in relation to the province of Aceh,
on 27 September 2004. No reply has yet been received;
(e) Nepal: a request was sent on 27 September 2004. An acknowledgement was sent
two days later indicating that the contents of your letter have been forwarded to Katbmandu
with positive recommendation”;
(f) Sri Lanka: a request was sent on 21 October 2004. No reply has yet been
received;
(g) Thailand: a request was made on 8 November 2004, especially in relation to the
southern provinces of Narathiwat, Pattani and Yala. In a reply of 22 November 2004 the
Government noted its deep regret at the 78 deaths that occurred in relation to the transportation
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of detainees and characterized it as a process which, in hindsight, with greater care and more
scrupulous preparations could have been avoided”. It also noted its commitment to ensuring
that the incident is promptly, independently and thoroughly investigated” and that where
wrongdoing is found, those responsible would be held to account by due process of law”. OEe
Government also indicated that preventive measures would be taken for the future, that redress
and compensation would be paid, and that a dialogue had been launched to promote peace and
harmony in the area. In the Government's view, domestic processes of investigation should be
permitted to pursue their work unperturbed”. OEe view was also expressed that a public request
to visit by the Special Rapporteur could well affect the overall climate under which the
Independent Commission has to work, to the detriment of its eLectiveness and likely to prejudge
its ffindings”. OEe Special Rapporteur greatly appreciates the rapid and detailed reply submitted
by the Government of OEailand. He entirely agrees that a visit by a special rapporteur could
never be a substitute for appropriate domestic processes. In his view such visits are much more
likely to raise conffidence in those procedures, and to demonstrate that a Government is
extending its full cooperation to the special procedures of the Commission on Human Rights.
He looks forward to the outcome of the prompt report which the Government has undertaken to
produce in relation to this matter, and reaffrms his willingness to undertake a visit at an
appropriate time.
27. The Special Rapporteur intends to address in his future reports any concerns he might
have in relation to countries which he has unsuccessfully sought to visit.
2. Visit undertaken in 2004
28. The previous Special Rapporteur undertook one visit during 2004. Her report on her
mission to the Sudan is before the Commission at its present session (E/CN.4/2005/7/Add.2).
3. Follow-up procedure for country visits
29. In conformity with the emphasis placed by the Commission, in its resolution 2004/37, on
the importance of following up on reports and recommendations, and in light of its request to
him to follow up on communications and country visits” and its request to the States that have
been visited to examine carefully the recommendations made ... [ and to report to the Special
Rapporteur on the actions taken on those recommendations”, the Special Rapporteur intends to
pursue an appropriate follow-up procedure of the type already being implemented by other
comparable special procedures.
30. The procedure will involve a report, to be prepared within one to two years of each
country visit, on eLorts made by Governments to consider and implement his recommendations,
while taking into account any constraints relating thereto. OEis analysis will reflect information
provided by the Government and will also take account of information received from other
appropriate sources, including non-governmental organizations and civil society groups.
31. In order to prepare each country visit follow-up report, written information regarding
follow-up measures to each of the recommendations should be submitted by non-State sources
by 1 September of the relevant year. A summary of any such information received will be
forwarded to the Government concerned upon receipt. Submissions from the Government will
be due on 1 November. On the basis of such information, the Special Rapporteur will produce a
E/CN.4/2005/7
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report, to be contained in an addendum to his annual report. This procedure will be instituted in
relation to each visit undertaken by this mandate in the past two years and will thus apply to
the Sudan (E/CN.4/2005/7/Add. 2), Brazil (E/CN. 4/2004/7/Add.3) and Jamaica
(E/CN.4/2004/7/Add.2 and Corr. 1).
III. OVERVIEW OF SELECTED ISSUES OF CONCERN AND
THE KEY CHALLENGE OF ACCOUNTABILITY
32. This part of the report deals only with selected issues. It is not in any sense intended to
be a comprehensive review of all of the speciffic issues dealt with under the mandate. Given the
strict word limit for this report the Special Rapporteur considers that the space available is best
devoted to a more in-depth examination of a limited range of issues each year. OEe focus will
change over time and there will be limited repetition from one report to the next, thus giving
greater cumulative significance to the reports over time.
33. In dealing with the range of killings and executions covered by this mandate there are
two aspects of particular importance. OEey are prevention and accountability. OEe ffirst priority
is to devise means by which to prevent the occurrence of all executions that transgress applicable
international legal norms. Reports submitted by the previous Special Rapporteur have
recommended a variety of preventive measures. For example, in her report to the Commission
in 2004, she called, inter alia, for: early-warning mechanisms in relation to genocide and crimes
against humanity, human rights training for law enforcement off cials, measures to ensure
respect for the rights to freedom of association and expression, legislative changes to ensure that
OEonour killings” are treated with the full force of the law, and training of the judiciary to
promote greater sensitivity to gender issues (E/CN.4/2004/7, para. 96). Recognition of the
importance of prevention also inspired the appointment by the Secretary-General of a Special
Adviser on the Prevention of Genocide (see paragraph 38 below).
34. The principal emphasis of the present report is, however, on the second of the two
approaches: accountability. OEe essential thrust of international human rights law is to establish
and uphold the principle of accountability for measures both to protect human rights and to
respond fully and appropriately to violations of those rights. If measures are not in place to
prevent and to respond to extrajudicial, summary, and arbitrary executions, they are unlikely to
be eLective in responding to other human rights violations either.
35. Like the challenge of ensuring respect for human rights, accountability begins at home.
By far the most important mechanisms are domestic and the role of international mechanisms is
appropriately seen as secondary. OEat role includes supporting domestic initiatives, acting as a
catalyst to promote appropriate action, monitoring the eLectiveness of such measures, and
recommending appropriate measures to the Commission when Governments clearly fail in their
responsibilities. This is not to suggest, however, that in his own role the Special Rapporteur can
abdicate from his responsibility to promote accountability, or that he can or should postpone the
steps that the Commission has mandated him to take solely because a national initiative of some
sort is announced. Where executions and killings are concerned there is always an urgency
involved and, as noted below, all too high a proportion of the accountability measures set in
motion by Governments in response to serious allegations end up producing precious little.
E/CN.4/2005/7
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A. Genocide and crimes against humanity
36. The way in which individual States and the international community as a whole deal with
the most serious human rights violations of all - those involving genocide or crimes against
humanity - tells us a lot about the priorities involved and about the current state of human rights
protection. The overall picture is too oifien characterized by outright denial, refusal to address
the issue, or positive undermining of initiatives designed to respond in some way to these most
serious of all allegations. One continuing trend over the past year has been an excessive legalism
which manifests itself in deffinitional arguments over whether a chronic and desperate situation
has risen to the level of genocide or not. In the meantime, while some insist that the term is
clearly applicable and others vigorously deny that characterization, all too little is done to put an
end to the ongoing violations. 6 At the end of the day the international community must be
judged on the basis of its action, not on its choice of terminology.
37. At the same time opposition has escalated in some quarters to the International Criminal
Court, despite the fact that it is the only mechanism that has ever been established in order to
determine systematically and objectively when the crime of genocide has been committed, and
thus to lay down guidelines which will reduce the likelihood of legalistic arguments masking
inaction in the future.
38. Nevertheless, there have been several encouraging developments in the past year. One of
those was the appointment by the Secretary-General of Juan M&ndez as his Special Adviser on
the Prevention of Genocide. Another was the appointment of an independent International
Commission of Inquiry in order immediately to investigate reports of violations of
international humanitarian law and human rights law in Darfur by all parties, to determine also
whether or not acts of genocide have occurred, and to identify the perpetrators of such violations
with a view to ensuring that those responsible are held accountable” (Security Council
resolution 1564 (2004), para. 12). OEis step followed the report of a country visit undertaken by
the then Special Rapporteur, whose report is currently before the Commission. One of the
conclusions of her report was that there are strong indications that the scale of violations of the
right to life in Darfur could constitute crimes against humanity for which the Government of the
Sudan must bear responsibility” (E/CN.4/2005/7/Add.2, para. 57). In terms of action as opposed
to inquiries, however, the High-level Panel on OEreats, Challenges and Change commented in
December 2004 on the glacial speed at which our institutions have responded to massive human
rights violations in Darfur”. 7
39. A third positive development in 2004 was the High-level Panel's emphasis on more
concerted action against genocide, which included calling upon the Security Council to authorize
military intervention as a last resort, in the event of genocide and other large-scale killing,
ethnic cleansing or serious violations of international humanitarian law which sovereign
Governments have proved powerless or unwilling to prevent”. 8 OEe Panel also asked the
permanent members [ of the Security Councifl, in their individual capacities, to pledge
themselves to refrain from the use of the veto in cases of genocide and large-scale human rights
abuses”. 9 Lthe latter proposal were to have a serious prospect of being adopted, there would be
a role for the Commission on Human Rights in suggesting when such situations exist.
E/CN.4/2005/7
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40. The Special Rapporteur has already met with the Special Adviser on the Prevention of
Genocide and the two experts have agreed that they will work closely together whenever the
desired outcome would be facilitated thereby.
B. Violations of the right to life in armed conifet and internal strife
41. Recent years have seen a growing number of civilians and persons hors de combat killed
in situations of armed conflict and internal strife. One result has been a general lessening of
respect for established and clearly binding international norms. OEis is manifested in part by the
proliferation of proposals that seek to justify illegal executions. Thus, it is increasingly common
to read arguments along the lines that targeting and eliminating known terrorists is more
effcient and costs fewer lives than waging conventional war”. 10 While there are a great many
empirical arguments that might be made in order to show that such strategies will be
counterproductive, the point is that such proposals directly undermine the essential foundations
of human rights law. Empowering Governments to identify and kill lcnown terrorists” places no
veriffiable obligation upon them to demonstrate in any way that those against whom lethal force
is used are indeed terrorists, or to demonstrate that every other alternative had been exhausted.
While it is portrayed as a limited exception” to international norms, it actually creates the
potential for an endless expansion of the relevant category to include any enemies of the State,
social misffits, political opponents, or others. And it makes a mockery of whatever accountability
mechanisms may have otherwise constrained or exposed such illegal action under either
humanitarian or human rights law.
42. There are several responses which need to be made to recent developments, and the
Commission can contribute signifficantly to this effort through its work. OEe ffirst is to reject
unequivocally the killing of all innocent civilians and non-combatants by no matter whom and in
no matter what circumstances. OEis includes those struggling against foreign occupation, for
whom an exception is sometimes claimed. But, as the High-level Panel on OEreats, Challenges
and Change concluded at the end of a detailed analysis of the issue, the central point is that
there is nothing in the fact of occupation that justiffies the targeting and killing of civilians”.”
43. The second response is to underscore the fact that eLorts to eradicate terrorism must be
undertaken within a framework clearly governed by human rights law as well as international
humanitarian law, and that executions occurring in the context of armed conflict that violate that
framework fall squarely within the remit of the Special Rapporteur. OEese issues have assumed
particular salience in the past couple of years because they have been contested by some
Governments. OEe most important responses in this regard have come from the Government of
the United States in relation to two sets of allegations. OEe ffirst concerned the alleged killing of
six men by a U.S.-controlled Predator drone aircraifi” when they were travelling in a car in
Yemen. At least one of those killed was said to have been a suspected senior ffigure of Al-Qaida.
While there was no armed conflict in Yemen at the time, the United States pointed out that since
Al-Qaida was waging war unlawfully against it, the situation constituted an armed conflict and
thus international humanitarian law is the applicable law”. In its view, allegations stemming
from any military operations conducted during the course” of such an armed conflict do not fall
within the mandate of the Special Rapporteur”, or of the Commission itself (E/CN.4/2003/G/80,
annex).
E/CN.4/2005/7
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44. The second set of allegations concerned reports that United States military personnel had
used excessive force against civilians in the city of Fallujah, Iraq, in 2003.12 In a subsequent
communication the Special Rapporteur expressed concern about reports that United States
soldiers had been given orders to shoot on sight” persons suspected of looting property in Iraq.
In reply, the United States Government stated that inquiries related to military operations
conducted by the United States do not fall within the mandate of the Special Rapporteur, which
does not extend to the laws and customs of war”, and requested that consideration of the
incidents raised be discontinued.' 3
45. These responses raise a number of matters which warrant clariffication. OEe ffirst
concerns the place of humanitarian law within the Special Rapporteur's mandate. OEe fact is
that it falls squarely within the mandate. All major relevant resolutions in recent years have
referred explicitly to that body of law. Most recently, the General Assembly, in
resolution 59/197 of 20 December 2004, dealing with the mandate of the Special Rapporteur,
urged Governments to take all necessary and possible measures, in conformity with
international human rights law and international humanitarian law, to prevent loss of life ...
during ... armed conflicts” (para. 8 (b)). Consistent with this approach, every single annual
report of the Special Rapporteur since at least 1992 has dealt with violations of the right to life in
the context of international and non-international armed conflicts.' 4
46. The second matter concerns the applicability of the right to life in a situation such as that
under which United States troops were operating in Iraq in 2003. The right to life in article 6 of
the International Covenant on Civil and Political Rights, to which both the United States and Iraq
are parties, is non-derogable. OEus, the existence of an armed conflict does not per se render the
Covenant inapplicable in the territory of a State party. The Human Rights Committee has held
that a State party can be held responsible for violations of rights under the Covenant where the
violations are perpetrated by authorized agents of the State on foreign territory, whether with
the acquiescence of the Government of [ the foreign Statel or in opposition to it”. 15
47. In 2004 in an Advisory Opinion the International Court of Justice approved of the Human
Rights Committee's reasoning and held that the Covenant is applicable in respect of acts done
by a State in the exercise of its jurisdiction outside its own territory”.' 6 It follows that any case
involving the arbitrary deprivation of life of Iraqi or other nationals by United States military
personnel (or other authorized government agents) may amount to a violation of the Covenant
and would thus fall squarely within the Special Rapporteur's mandate.
48. The third matter concerns the relationship between human rights law and humanitarian
law. The implications of the United States position in this regard would appear to be twofold:
(i) extrajudicial, summary or arbitrary executions, falling within the Special Rapporteur's
mandate, can take place only in situations where international human rights law applies; and
(ii) where humanitarian law is applicable, it operates to exclude human rights law.
49. Acceptance of this analysis would dramatically reduce the mandate of the Special
Rapporteur since so many of the executions brought to his attention take place in contexts of
armed conflict. It would mean that in many situations in which a Government declares itself to
be under attack and argues that the resulting conflict is governed by the laws of armed conflict,
the applicability of human rights law would be entirely excluded.
E/CN.4/2005/7
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50. This proposition is not supported by general principles of international law. It is now
well recognized that the protection oLered by international human rights law and international
humanitarian law are coextensive, and that both bodies of law apply simultaneously unless there
is a conflict between them. In the case of a conflict, the lex special /s should be applied but only
to the extent that the situation at hand involves a conflict between the principles applicable under
the two international legal regimes. The International Court of Justice has explicitly rejected the
argument that the International Covenant on Civil and Political Rights was directed only to the
protection of human rights in peacetime:
... [ Tihe protection of the International Covenant of Civil and Political Rights does not
cease in times of war, except by operation of Article 4 [ derogation in a time of national
emergency . Respect for the right to life is not, however, such a provision. In principle,
the right not arbitrarily to be deprived of one's life applies also in hostilities. The test of
what is an arbitrary deprivation of life, however, then falls to be determined by the
applicable lex specialis, namely, the law applicable in armed conflict which is designed
to regulate the conduct of hostilities.' 7
51. The Court repeated and approved of this passage in its 2004 Advisory Opinion.' 8
52. It follows that the application of international humanitarian law to an international or
non-international armed conflict does not exclude the application of human rights law. The two
bodies of law are in fact complementary and not mutually exclusive.
53. One additional matter warrants particular attention in this context. Governments which
are criticized for violating the right to life under human rights law or for failing to respect
humanitarian law by killing civilians who are not directly taking part in hostilities sometimes
announce that they have initiated an investigation into the relevant incidents. In such cases it is
essential that the results of the investigation be published, including details of how and by whom
it was carried out, the findings, and any prosecutions subsequently undertaken. Broad, general
statements of findings, or non-disaggregated information as to the number of investigations and
prosecutions, are inadequate to satisfy the requirements of accountability in such contexts.
Formalistic investigations are almost always the precursors of a degree of impunity.
54. Remedial proposals to inculcate higher ethical” standards or to develop a greater
moral” sensibility in the oLending military personnel are also inadequate. Respect for human
rights and humanitarian law are legally required and the relevant standards of conduct are spelled
out in considerable detail. Remedial measures must be based squarely on those standards.
C. Capital punishment
55. The Commission on Human Rights has consistently requested the Special Rapporteur to
monitor the implementation of all standards relating to the imposition of capital punishment.
Previous Special Rapporteurs have recalled that the death penalty must under all circumstances
be regarded as an extreme exception to the right to life, and that the standards pertaining to its
use must therefore be interpreted in the most restrictive manner possible. Similarly, full respect
for fair trial standards is particularly indispensable in proceedings relating to capital oLences.
E/CN.4/2005/7
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56. In the present report the focus is on three dimensions of the use of the death penalty: the
need for transparency, the importance of regular reviews of the implementation of the death
penalty, and the mandatory death penalty.
1. Transparency
57. In a considerable number of countries information concerning the death penalty is
cloaked in secrecy. No statistics are available as to executions, or as to the numbers or identities
of those detained on death row, and little if any information is provided to those who are to be
executed or to their families. Such secrecy is incompatible with human rights standards in
various respects. It undermines many of the safeguards which might operate to prevent errors or
abuses and to ensure fair and just procedures at all stages. It denies the human dignity of those
sentenced, many of whom are still eligible to appeal, and it denies the rights of family members
to know the fate of their closest relatives.
58. Moreover, secrecy prevents any informed public debate about capital punishment within
the relevant society. In a reply to the Special Rapporteur in 2003 the Government of China
observed that the ultimate worldwide abolition [ of the death penalty will be the inevitable
consequence of historical development”, and that [ eIach country should decide whether to
retain or abolish the death sentence on the basis of its own actual circumstances and the
aspirations of its people”.' 9 It is clear, however, that such decisions and aspirations cannot be
formed in a state of ignorance about the facts.
59. Countries that have maintained the death penalty are not prohibited by international law
from making that choice, but they have a clear obligation to disclose the details of their
application of the penalty. For a Government to insist on a principled defence of the death
penalty but to refuse to divulge to its own population the extent to which, and the reasons for
which, it is being applied is unacceptable. The Commission should, as a matter of priority, insist
that every country that uses capital punishment undertake full and accurate reporting of all
instances thereof, and should publish a consolidated report prepared on at least an annual basis.
2. Periodic reviews
60. Experience shows that even in the most sophisticated legal systems, mistakes occur
which result in wrongful executions. This is a constant risk and no country's legal system can
comprehensively and reliably ensure that such errors do not occur. In relation to lesser
punishments, the penalty is neither so severe nor so ffinal, and mistakes can always be rectiffied.
Capital punishment, however, is in a class all of its own and the appropriate legal regime
governing it cannot be compared to that relating to other sentences.
61. It is therefore incumbent upon those countries that retain the death penalty to undertake
regular periodic reviews, staLed by persons independent of the criminal justice apparatus, to
evaluate the extent to which international standards have been complied with and to consider any
evidence (such as DNA) that might be available which casts doubt upon the guilt of an executed
person.
62. The Commission should call upon all retentionist countries to undertake such reviews
and to report to it on the outcome thereof
E/CN.4/2005/7
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3. Mandatory death sentences
63. The legislation of a signifficant number of States provides for the death penalty to be
mandatory in certain circumstances. The result is that a judge is unable to take account of even
the most compelling circumstances to sentence an oLender to a lesser punishment, even
including life imprisonment. Nor is it possible for the sentence to reflect dramatically diThering
degrees of moral reprehensibility of such capital crimes. Moreover, in some States even the
exercise of clemency is automatically precluded in relation to certain crimes, including those
that do not involve violence. It is appropriate, therefore, to note a recent judgement of the
Privy Council in response to a ruling by the Court of Appeals of Barbados. OEe relevance of
such a case in the present context is that it was decided on the basis of a careful review of
international legal standards. OEe majority of the Court observed that the maintenance of the
mandatory death penalty will ... not be consistent with the current interpretation of various
human rights treaties to which Barbados is a party”. 20
64. On that issue, the minority judgement reached the same conclusion, but went into greater
detail:
[ TIhe jurisprudence of the Human Rights Committee, the Inter-American Commission
and the Inter-American Court has been wholly consistent in holding the mandatory death
penalty to be inconsistent with the prohibition of cruel, inhuman or degrading treatment
or punishment. ... OEe appellants submitted that No international human rights tribunal
anywhere in the world has ever found a mandatory death penalty regime compatible with
international human rights norms', and this assertion has not been contradicted.” 2 '
D. Violations of the right to life by non-State actors
65. One of the more complex issues arising especially under this mandate concerns killings
by non-State actors. OEe fact that this category is not readily susceptible of a clear deffinition
increases the complexity. Indeed, in recent years the term non-State actors”, which was
long used primarily to describe groups whose purposes are essentially benign such as
non-governmental organizations, religious groups and corporations, has increasingly come to
be associated with groups whose agendas include wreaking havoc and terror upon innocent
civilians. 22
66. Although it has not yet come, there will be a time when the international community
decides that this category has outlived its usefulness and that it should instead be looking at
diTherent ways of dealing with very diTherent actors.
67. Various non-State actors have featured in the reports of previous Special Rapporteurs.
Thus, for example, in her 2004 report to the Commission (E/CN.4/2004/7) the Special
Rapporteur addressed members of this group under the following three sections of the report:
(i) deaths due to attacks or killings by security forces of the State, or by paramilitary groups,
death squads or other private forces cooperating with or tolerated by the State”; (ii) violations of
the right to life of women”; and (iii) impunity, compensation and the rights of victims”.
E/CN.4/2005/7
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68. For understandable reasons, the focus on killings carried out by individuals or groups
occupying no offcial position, and whose actions might even be condemned by the Government,
has given rise to some controversy within the Commission. It thus seems desirable to seek to
clarify the basis upon which such matters are dealt with in these reports.
69. The most important category of non-State actor within the context of this mandate are
those groups which, although not government oLicials as such, nonetheless operate at the behest
of the Government, or with its knowledge or acquiescence, and as a result are not subject to
eLective investigation, prosecution, or punishment. Paramilitary groups, militias, death squads,
irregulars and other comparable groups are well known to the readers of the Special
Rapporteur's reports. OEere is no legal complexity in relation to this group because insofar as
the Government is directly implicated its legal responsibility is engaged.
70. A second group, which is becoming far more numerous and very much a part of the
landscape in many of the situations brought to the attention of the Special Rapporteur, is private
contractors or consultants who, although not government off cials in any way, are nonetheless
exercising functions which would otherwise have been carried out by the State. OEis might
include prison management, law enforcement, interrogation, etc. In dealing with such cases the
Human Rights Committee has made clear, in relation to torture for example, that States parties to
the International Covenant on Civil and Political Rights should report on the provisions of their
criminal law not only in relation to acts committed by public oLicials or persons acting on behalf
of the State, but also by private persons. 23 In ffinal Views adopted in 2003 the Committee
concluded that the contracting out to the private commercial sector of core State activities
which involve the use of force and the detention of persons does not absolve a State party of its
obligations under the Covenant”. 24 While there may be some debate over what constitutes a
core State activity”, it is clear that actions carried out by contractors and consultants which
attract the attention of the Special Rapporteur may well engage the responsibility of the State
concerned.
71. Criminal actions might also evolve into a third, and very important, category of non-State
actors of relevance to this mandate. Crimes, including murder, carried out by individuals can
also give rise to State responsibility in instances in which the State has failed to take all
appropriate measures to deter, prevent and punish the perpetrators as well as to address any
attitudes or conditions within society which encourage or facilitate such crimes. Two sometimes
contested examples include honour killings (as deffined in previous reports) and killings directed
at groups such as homosexuals and members of minority groups. Other examples which have
drawn attention in recent times include sustained attacks on trade unionists, so-called social
cleansing of undesirable” elements, or repeated attacks on professional groups such as doctors
who are subjected to extortion demands. Also included in this category would be the activities
of any of the groups described in the ffirst category above insofar as it can be shown that there is
no element of governmental involvement or complicity in their activities.
72. Inmost situations, the isolated killing of individuals will constitute a simple crime and
not give rise to any governmental responsibility. But once a pattern becomes clear in which the
response of the Government is clearly inadequate, its responsibility under international human
rights law becomes applicable. OErough its inaction the Government confers a degree of
impunity upon the killers.
E/CN.4/2005/7
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73. The term most frequently used in international legal instruments to characterize the
State's obligations in such contexts is due diligence”. Its substance was formulated in
considerable detail more than 25 years ago in a report to the General Assembly by
Abdoulaye Dieye of Senegal in his capacity as an expert in relation to the situation in Chile
(A134/5 83/Add. 1, para. 124). He examined in depth the responsibility of States for acts such as
disappearances which are not committed by government offcials or their agents. He observed
that a State is responsible in international law for a range of acts or omissions in relation to
disappearances if, inter alia, the authorities do not react promptly to reliable reports, the relevant
legal remedies are ineLective or non-existent, the State does not act to clarify the situation in the
face of reliable evidence, or it takes no action to establish individual responsibility within the
national framework.
74. This approach was endorsed by the Inter-American Court of Human Rights in a landmark
case almost a decade later, 25 and the concept of due diligence has since been further developed
in a variety of United Nations contexts, especially in relation to violence against women
(see, e.g., E/CN.4/2000/68, para. 53).
75. Thus, in taking up the types of issues noted above, the Special Rapporteur is following
clearly established principles of international law, and is raising with Governments matters
which engage State responsibility, as opposed to the responsibility of individual murderers or
other criminals.
76. The fourth major group of non-State actors relevant to the Special Rapporteur's mandate
is armed opposition groups. The traditional approach of international law is that only
Governments can violate human rights and thus, such armed groups are simply committing
criminal acts. And indeed this may be an accurate characterization. In reality, however, that is
oifien not the end of the matter and in some contexts it may be desirable to address the activities
of such groups within some part of the human rights equation. 26 This could mean addressing
complaints to them about executions and calling for respect of the relevant norms. 27 This may be
both appropriate and feasible where the group exercises signifficant control over territory and
population and has an identiffiable political structure (which is oifien not the case for classic
terrorist groups”). In cases in which such groups are willing to affrm their adherence to human
rights principles and to eschew executions it may be appropriate to encourage the adoption of
formal statements to that eLect. And in reporting on violations committed by Governments it
may be appropriate to provide details of the atrocities perpetrated by their opponents in order to
provide the Commission with an accurate and complete picture of the situation. It goes without
saying that any such approaches would in no way diminish the central human rights
responsibilities of Governments, nor does it seek to give legitimacy to opposition groups. OEe
condemnation of such groups and insisting that they respect international human rights law
should not be taken as equating them with States. On the other hand, in an era when non-State
actors are becoming ever more important in world aLairs, the Commission risks handicapping
itself signifficantly if it does not respond in a realistic but principled manner.
E/CN.4/2005/7
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IV. CONCLUSIONS AND RECOMMENDATIONS
A. Conclusions
77. Executions involving violations of international humanitarian law fall squarely
within the mandate of the Special Rapporteur.
78. The application of international humanitarian law to an international or
non-international armed conffct does not exclude the application of human rights law.
The two bodies of law are thus complementary and not mutuafty exclusive.
79. A State can be held responsible for violations of human rights that are perpetrated
by authorized agents of the State on foreign territory.
80. The mandatory death penalty which precludes the possibifty of a lesser sentence
being imposed regardless of the circumstances, is inconsistent with the prohibition of cruel,
inhuman or degrading treatment or punishment.
81. International human rights law clearly indicates that killings undertaken by
non-State actors can engage State responsibility in a number of diLerent circumstances.
The obligation upon Governments to show due diligence in such contexts is of the utmost
importance.
B. Recommendations
82. The International Criminal Court represents an essential element in the struggle to
prevent genocide and crimes against humanity. In order to promote those objectives all
States should ratify its Statute.
83. The permanent members of the Security Council should pledge themselves not to
use the veto in cases involving genocide and large-scale human rights abuses. The
Commission should consider how it can faciftate progress towards this goal.
84. Proposals seeking to justify or rationalize the arbitrary execution or targeted
assassination of individuals alleged to have committed crimes or to be linked to terrorism
involve a fundamental undermining of international human rights law and should be
condenmed without reservation.
85. The Commission should reject unequivocafty the intentional killing of aft civilians
and non-combatants, no matter by whom and no matter what the circumstances.
86. National-level investigation of afteged violations of international law by the armed
or security forces are indispensable. To be credible and acceptable, however, the results
must be made public, including details of how and by whom the investigation was carried
out, the findings, and any prosecutions subsequently undertaken.
E/CN.4/2005/7
page 23
87. Transparency is essential wherever the death penalty is applied. Secrecy as to those
executed violates human rights standards. Full and accurate reporting of aft executions
should be published, and a consolidated version prepared on at least an annual basis.
88. Because it is impossible to ensure that wrongful executions do not occur, countries
applying the death penalty should undertake regular, independent, periodic reviews of the
extent to which international standards have been complied with and to consider any
evidence of wrongful execution. The Commission should ask those States to report to it on
the outcome of their reviews.
Notes
1 The mandate was established by Economic and Social Council resolution 1982/35.
2 See note 4 below.
The focus on communications based exclusively on allegations and reports brought to the
Special Rapporteur's attention means that there is very little, and sometimes no, information
from countries where civil society is unable to function eLectively. As a result this report is far
from being comprehensive in terms of the occurrence of violations of the right to life worldwide.
In order to comply with strict reporting deadlines, and to give Governments a minimum of
two months to reply, the present report reflects communications sent between 1 December 2003
and 30 September 2004, and responses received from Governments between 1 December 2003
and 1 December 2004. A comprehensive account of communications sent to Governments up
to 1 December 2004, along with replies received up to the end of January 2005, and the relevant
observations of the Special Rapporteur, are reflected in addendum ito this report.
This ffigure also includes government replies received in 2004 to some communications sent
in 2003, which actually represent 14 per cent of all the responses received in 2004.
6 In this respect it is relevant to recall the situation of Rwanda in 1994 when United Nations
offcials did not use the term until one month aifier massive killings had begun and some
Security Council members continued to resist use of the term for a considerable time thereafter.
A More Secure World: Our Shared Responsibility, report of the Secretary-General's
High-level Panel on OEreats, Challenges and Change (United Nations, 2004), para. 42.
8 Ibid., para. 203.
Ibid., para. 256.
10 A variant of this argument is that the United Nations itself should approve targeted killings of
dangerous dictators”. Anne-Marie Slaughter, Mercy killings: why the United Nations should
issue death warrants against dangerous dictators”, Foreign Policy, 1 May 2003.
A More Secure World, op. cit., para. 160.
E/CN.4/2005/7
page 24
12 Letter from the Special Rapporteur of 12 May 2003.
13 Letter of 8 April 2004.
14 See: E/CN.4/1993/46, paras. 60-61; E/CN.4/1994/7, paras. 10 (l)-(m)and 11(d);
E/CN.4/1995/61, paras. 7(d) and 8; E/CN.4/1996/4, para. 10 (f); E/CN.4/1997/60, paras. 9 (f)
and 38-41; E/CN.4/1998/68, paras. 8 (f) and 42-43; E/CN.4/1999/39, paras. 6 (f) and 27;
E/CN.4/2000/3, paras. 6 (f) and 30; E/CN.4/2002/74, paras. 8 (b) and 66-71; E/CN.4/2003/3,
paras. 8 (b) and 3 5-44; E/CN.4/2004/7, paras. 9 (c) and 26-29.
Lopez v. Uruguay, communication No. 52/1979, CCPRIC/OP/1 at 88(1984), paras. 12.1-12.3.
16 Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory (9 July 2004), paras. 108-111.
17 Advisory Opinion on the Legality of the OEreat or Use of Nuclear Weapons (8 July 1996),
para. 25.
18 Lopez v. Uruguay, op. cit., para. 105.
19 Reply to a communication dated 9 December 2002.
20 Boyce and Joseph v. The Queen, Privy Council Appeal No. 99 of 2002, Judgement
of 7 July 2004, para. 6.
21 Ibid., para. 81(3).
22 A More Secure World, for example, focuses extensively on non-State actors but exclusively in
terms of the nuclear threat they pose.
23
General comment No. 20 (1992) on art. 7, para. 13.
24 Cabal and Pasini Bertran v. Australia, case No. 1020/2001, decision of 7 August 2003
(CCPR/C/78/D/1020/2001), para. 7.2.
25 Vel6squez Rodriguez v. Honduras, Annual Report of the Inter-American Court of Human
Rights, OAS/Ser. l./V./III.19, doc. 13(1988), 28 ILM (1989) 291.
26 See, e.g., the approach of the United States State Department: [ wIe have made every effort
to identify those groups (for example, government forces or terrorists) that are believed ... to
have committed human rights abuses”. United States Department of State, Country Reports on
Human Rights Practices 2003 (2004), appendix A.
27 A similar result is achieved in relation to international humanitarian law through the
application of common article 3 of the Geneva Conventions of 1949.
