UNIItL )
NATIONS
Economic and Social Distr.
Council
GENERAL
E/CN.4/2006/53
8 March 2006
Original: ENGLISH
COMMISSION ON HUMAN RIGHTS
Sixty-second session
Item 11(b) of the provisional agenda
CIVIL AND POLITICAL RIGHTS, INCLUDING THE QUESTIONS
OF DISAPPEARANCES AND SUMMARY EXECUTIONS
Extrajudicial, summary or arbitrary executions
Report of the Special Rapporteur, Philip Alston*
* The present report is submitted late so as to reflect the most recent information.
C
GE.06-11684 (E) 150306
E/CN.4/2006/53
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Sununary
OEis report is submitted pursuant to Commission resolution 2005/34, and should be read
in conjunction with its various addenda. OEey provide the following: a detailed analysis of
communications sent to Governments which describe alleged cases of extrajudicial executions;
reports on country missions to Nigeria and Sri Lanka during 2005; a report on the principle of
transparency in relation to the death penalty; and several reports aimed at following up on earlier
country missions to the Sudan, Brazil, Honduras and Jamaica.
OEe report notes that the establishment of the Human Rights Council represents a
singular opportunity to develop a more credible human rights system. Accordingly, the report
highlights opportunities to make the special procedures system more eLective. Prominent
among these is the need to ensure that the system of country visits undertaken by special
procedure mandate-holders is able to function eLectively. The report calls upon the
Human Rights Council to establish a procedure whereby speciffic cases of persistent or especially
problematic non-cooperation with mandate-holders are automatically flagged and taken up by
the Council. It is neither fair nor a credit to the system that some of the countries with the most
serious human rights problems are also those that are the least likely to be visited.
Attention is also given to the principle of transparency, which is closely related to eLorts
to ensure the right to life. Transparency allows considerable light to be shed on the causes of
extrajudicial executions and helps in the development of potential remedial measures. The right
to political participation, itself a principal driver of reform, cannot be fully realized without the
information provided by transparent governmental processes. OEis report addresses several key
areas in which transparency is oifien lacking: commissions of inquiry for investigating
extrajudicial executions, the administration of the death penalty, and violations committed during
armed conflict. In light of the legal and empirical analysis of governance processes in these
areas, the report makes recommendations for measures that would increase transparency and
reduce extrajudicial executions:
. States employing the death penalty should, on at least an annual basis, disclose
detailed information on persons at every stage of the capital punishment process: the
number of persons sentenced to death; the number of executions actually carried out;
the number of death sentences reversed or commuted on appeal; the number of
instances in which clemency has been granted; and each of the above broken down
according to the oLence for which the condemned person was convicted;
. Persons sentenced to death, their families and their lawyers should be provided with
timely and reliable information on the procedures and timing of appeals, clemency
petitions and executions;
. States must comply with human rights law obligations during armed conflict. OEese
include the obligation to investigate alleged violations of the right to life promptly,
thoroughly and eLectively through independent and impartial bodies, and the
obligation to punish those individuals responsible for violations in a manner
commensurate with the gravity of their crimes.
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Various events in 2005 demonstrated that shoot-to-ki11” policies pose a very real risk to
the right to life. OEis report attempts to analyse these policies in a manner that acknowledges the
challenges to be met but also respects long-established human rights principles. Various threats,
including widespread looting, armed robbery, drug dealing and, most importantly, the
phenomenon of suicide bombers, challenge the adequacy of traditional law enforcement
measures. However, it is important to affrm that the use of lethal force by law enforcement
off cers must be regulated within the framework of human rights law and its standard of strict
necessity. OEe rhetoric of shoot-to-kill should never be used. It risks conveying the message
that clear legal standards have been replaced with a vaguely deffined licence to kill.
The report systematically applies the human rights framework to the threats posed in such
situations and concludes that when States adopt policies permitting the use of lethal force
without prior warnings, a prior graduated use of force or clear signs of an imminent threat, they
must provide alternative safeguards to ensure the right to life. The reliance on intelligence
information in such contexts means that States must develop legal frameworks to properly
incorporate intelligence information and analysis into both the operational planning and
post-incident accountability phases of State responsibility, and instruct offcers that there is no
legal basis for shooting to kill for any reason other than near certainty that to do otherwise will
lead to loss of life.
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CONTENTS
Paragraphs Page
Introduction 1 - 7 5
ACTIVITIES 8 - 19 6
A. Communications 8 - 12 6
B. Visits 13 - 19 7
1. The need to ensure a response to requests for
visits: a challenge for the Council 13 - 16 7
2. Requests for visits made in 2005 and
responses received 17 8
3. Visits undertaken in 2005 18 10
4. Follow-up procedure for country visits 19 10
II. OVERVIEW OF SELECTED ISSUES OF CONCERN
ANDROLEOFTRANSPARENCY 20-54 11
A. The principle of transparency 23 - 24 11
B. Transparency in investigating violations:
commissions of inquiry 25 - 27 12
C. Transparency in relation to the death penalty 28 - 32 13
D. Transparency in armed conflict: accountability
for violations of the right to life in armed conflict
and occupation 33 - 43 14
E. Shoot-to-kill policies 44 - 54 17
III. RECOMMENDATIONS 55 - 62 20
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Introduction
1. There is much to be said for following the same recipe” each year in reporting to an
intergovernmental body such as the Commission on Human Rights. Predictability and respect
for precedent make reports easier to read and the content seems less likely to convey any novel
or unexpected messages. But there are also downsides. Repetition of the same material in each
annual report is a persuasive reason not to look too closely at a report which seems all too
familiar. And a tendency to accord equal importance to both routine procedural matters and to
important substantive issues makes it diffcult to work out what is signifficant and what is not.
Linked to this is oifien a reluctance to clearly identify the key issues on which the relevant
debates within the Commission should focus, or to spell out the matters on which action is
explicitly recommended.
2. This report departs from the traditional formula. Since it is being submitted to the ffinal
session of the Commission, some reflection on the strengths and weaknesses of the procedures
used in carrying out the mandate entrusted to the Special Rapporteur is especially apposite. And
because much of the effort of the new Human Rights Council which is to succeed the
Commission will initially be devoted to identifying improved procedures, it is important to
draw attention to some of the more important considerations that should be taken into
account.
3. The present report thus seeks to achieve three objectives: to outline the key measures
taken in 2005 in relation to the goal of eliminating extrajudicial executions;' to identify ways in
which the relevant procedures might be developed more eLectively to achieve the goals set by
the Commission; and to shed light on some of the central issues that arise at the national level in
dealing with extrajudicial executions. In particular, the report focuses on the notion of
transparency as a key component of the concept of accountability which underpins the
international human rights system.
4. The report is submitted pursuant to Commission resolution 2005/34.
5. The report takes account of information received and communications sent in the
period 1 December 2004 to 30 September 2005. 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
6. An overview of the Special Rapporteur's terms of reference, a list of the speciffic types of
violations of the right to life upon which the Special Rapporteur takes action, and a description
of the legal framework and methods of work used in implementing this mandate can be found in
his report E/CN.4/2005/7, paragraphs 5-12.
7. The Special Rapporteur is grateful to the staff of the Offfice of the High Commissioner for
Human Rights for their assistance in the conduct of his work, and to Mr. William Abresch of
New York University School of Law, who has provided expert assistance and advice.
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I. ACTIVITIES
A. Communications
8. An indispensable aspect of the Special Rapporteur's mandate involves engaging in a
productive and meaningful dialogue with Governments in response to credible allegations of
violations relating to extrajudicial executions. OEis is done in part through the sending of
communications that might request the taking of urgent action of some kind or the preparation of
a detailed and systematic response to the allegations. In order to ensure that such exchanges are
frank, productive and focused, the Special Rapporteur has sought to use straightforward
language, to spell out his concerns clearly, and to identify the steps which he believes would
appropriately be taken. Pro forma exchanges with Governments are not helpful and he has
sought to avoid them.
9. This report covers communications 3 sent and replies received over the past year. 4 The
details of the Special Rapporteur's concerns and the information provided in response by
Governments are reflected in considerable detail in addendum ito this report. That addendum is
an integral, and for some purposes even the most important, part of the report on work done
under this mandate. The Special Rapporteur has thus sought to make the information more
accessible and better ordered than in previous years and has included his own observations in
response to each set of exchanges with a Government.
iO. OEe responses received have been classiffied according to the following ffive categories
designed to assist the Commission in its task of evaluating the eLectiveness of the mandate:
(a) Largely satisfactory response” denotes a reply that is responsive to the
allegations and that substantially clariffies the facts. It does not, however, imply that the action
taken necessarily complies with international human rights law;
(b) Cooperative but incomplete response” denotes a reply that provides some
clariffication of the allegations but that contains limited factual substantiation or that fails to
address some issues;
(c) Allegations rejected but without adequate substantiation” denotes a reply
denying the allegations but which is not supported by documentation or analysis that can be
considered satisfactory under the circumstances;
(d) Receipt acknowledged” denotes a reply acknowledging that the communication
was received but without providing any substantive information;
(e) No response”.
ii. The very brief statistical details of the communications sent during the period
under review indicate that i i7 communications were sent to 55 countries and 3 other
actors (including 57 urgent appeals and 60 letters of allegations) concerning a total of
more than 800 individuals. A breakdown of the subjects of those appeals shows that they
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involved 373 males, 76 females, more than 350 persons of whose sex was unknown, 56 minors,
75 members of religious, ethnic or indigenous minorities, 29 human rights
defenders, 6 journalists, more than 200 persons exercising their right to freedom of opinion
and expression, 18 persons killed in the name of passion or of honour, 2 persons killed for
various discriminatory reasons, including their sexual orientation, and 9 migrants.
12. Overall, the proportion of Government replies received to communications sent during
the period under review remains low at an average of 46 per cent (however, if Government
replies received under the period under review but relating to communications sent during the
previous period are included, the proportion of communications to which replies were received
rises to 57 per cent). OEis means that roughly half of all communications sent drew no response
from the Government concerned within a reasonable time period. As indicated in the Special
Rapporteur's previous report this response rate must be considered problematic, particularly in
the case of a long-established procedure that addresses an issue as grave as the alleged violations
of the right to life.
B. Visits
1. The need to ensure a response to requests for visits:
a challenge for the Council
13. Much of the focus in the recent discussions surrounding the creation of the Human Rights
Council has been upon the obligation of all States, and especially those seeking election to the
Commission or the Council, to cooperate with the special procedures. The importance of this
obligation has long been a constant refrain of the Commission in its various resolutions 5 and
some of the Governments which have refused to cooperate have drawn considerable criticism as
a result. The most important aspect of this obligation concerns the provision of positive
responses to a request for a visit by a Special Rapporteur or other mandate-holder.
14. It was in recognition of the importance of this component of fulffilling the Charter of the
United Nations-based obligation to cooperate in promoting universal respect for human rights
(Arts. 55 and 56), that the Commission established the practice of standing invitations”,
whereby an open invitation is extended by a Government to all thematic special procedures. In
addition to the 53 Governments that have registered a commitment of this type, many others
have systematically responded affrmatively to speciffic requests.
15. Nonetheless, the almost universally acknowledged loss of credibility by the Commission
on Human Rights in recent years had much to do with its failure to take up cases in which
particular Governments failed to invite or permit appropriate access to special procedures. OEus
one of the major challenges confronting the Council will be to devise a procedure for recording
the number of requests addressed to each Government, noting cases involving outright refusals
or the use of delaying tactics, and taking appropriate action once a certain threshold of
seriousness is reached in each instance. Any such procedure is unlikely to work if it remains
ad hoc and dependent upon one or more Governments taking the initiative. Instead, the Council
should mandate a procedure whereby speciffic cases of persistent or especially problematic
non-cooperation are automatically flagged and taken up by the Council.
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16. It is clear that not every Government is obligated to immediately accept every request for
a visit. OEere might, for example, be cases in which too many requests have been made or where
the proposed timing is genuinely problematic. But in general, if the Council is to build a credible
system of special procedures, it has to operate on a general assumption that visits will be
facilitated and that it will take appropriate action in cases of clear non-cooperation.
2. Requests for visits made in 2005 and responses received
17. During the course of 2005 a number of visits were requested. The details of those, as
well as of some prior but still outstanding requests, are as follows: 6
(a) China: an invitation was requested on 24 March 2005. While no written reply
was received, the Special Rapporteur met with the permanent representative of China in Geneva
on 24 June 2005 and was assured that the request was being considered in Beijing. No further
reply has been received;
(b) India: in October 2000 the then Special Rapporteur requested an invitation,
which was not forthcoming. A follow-up request, on 1 December 2005, drew an immediate
response from the Permanent Mission indicating that they are conveying your request to the
authorities in India for their consideration, and will revert to you upon hearing from them”;
(c) Indonesia: a request was made, especially in relation to the province of Aceh, on
27 September 2004. No reply has been received;
(d) Islamic Republic of Iran: a request was made on 14 January 2004, noting that a
standing invitation had 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. A follow-up letter was sent on
11 February 2005 to the Permanent Mission. On 4 April 2005 a meeting took place at the
Special Rapporteur's request with the permanent representative, at which speciffic dates for a
visit were discussed. These dates and the terms of reference of the visit were conffirmed in a
letter of 18 April 2005. A follow-up letter was sent on 9 August 2005. A further meeting was
sought with the permanent representative, which took place on 14 October 2005. A follow-up
letter, again specifying possible dates as requested, was sent on 17 October 2005. No reply has
been received;
(e) Nepal: a visit was requested on 27 September 2004. OEe Permanent Mission
replied that it had forwarded the request to Kathmandu with positive recommendation”. No
reply has been received;
(f) Pakistan: in October 2000 the then Special Rapporteur requested an invitation,
which was not forthcoming. A follow-up request, on 1 December 2005, has not yet drawn a
reply;
(g) Peru: a letter of 30 November 2005 welcomed Peru's standing invitation and
requested a visit in 2006. In January 2006 the Permanent Mission conveyed an afffirmative
response to the request;
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(h) Russian Federation: in 2003 the then Special Rapporteur requested an invitation,
which was not forthcoming. A follow-up request, sent on 17 September 2004, drew a negative
response. A further request, draified in diLerent terms, was sent on 14 June 2005. On 28 June
the Permanent Mission replied that the Russian Federation is willing to continue the
constructive cooperation with the Special Rapporteur and, in this regard, is ready to consider
positively his request to undertake a visit to Russia. However, taking into account a tight
schedule of planned visits for the nearest future, the issue of when such [ al mission is to be
performed could be discussed at a later stage”;
(i) Saudi Arabia: A request was made on 11 May 2005. The Permanent Mission
replied on 27 July 2005 that in light of consultations, meetings and discussions that are
currently being held in the United Nations forums relating to the reform of the Commission on
Human Rights, and in view of the prior commitments of some of the off cials responsible for
matters within your Excellency's mandate during the time-frame speciffied, the Kingdom's
Government is regrettably unable to extend an invitation to the Special Rapporteur during the
ffirst semester of 2006”. A follow-up letter to the Government indicated that the reform
discussions should not be taken as providing an impediment to the visit going ahead as soon as
possible”, and renewed the request. No further reply has been received;
(j) Thailand: a request made on 8 November 2004 led to the correspondence
reported in detail in the Special Rapporteur's previous report. On 31 January and 8 March 2005
the Government provided written information on the establishment and the report of an
independent fact-ffinding commission. In separate letters dated 30 August 2005 and
10 November 2005 the Special Rapporteur notiffied the Government of his continuing interest
in undertaking a visit. No reply has been received;
(k) Togo: a request for a visit sent on 11 May 2005 was accepted on
26 October 2005;
(1) Uzbekistan: on 19 May 2005 the Special Rapporteur requested a visit, including
to Andijan. In a press statement on 20 May 2005 he indicated his grave concern about reported
killings and proposed that an independent commission of inquiry into the incident be established.
On the same day the Permanent Mission replied that the request is under consideration” but also
expressed its concern over prejudgment and preconception of the Special Rapporteur about the
facts without visiting the places of events in Andijan and without proper study of substance of
issues”. The Mission suggested that the Special Rapporteur's statement was politically biased
and clearly indicates an excess of power and mandate by the Special Rapporteur”. OEere has
been no further response. OEe Special Rapporteur wishes to draw the particular attention of the
Commission to the problems experienced in relation to his repeated requests to the
Islamic Republic of han, despite the existence of a standing invitation. The situation is
considerably exacerbated by a series of credible reports indicating that the execution ofjuveniles
(persons under the age of 18 when they committed the crime in question) has become
commonplace during 2005. OEis is especially troubling given that it amounts to a clear breach of
Iran's obligations under the Convention on the Rights of the Child and the International
Covenant on Civil and Political Rights. This is a situation which warrants a clear response by
the Commission.
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3. Visits undertaken in 2005
18. During the course of 2005, the Special Rapporteur undertook two visits:
(a) Nigeria: OEe Special Rapporteur visited from 27 June to 8 July 2005. His report
(E/CN.4/2006/53/Add.4) identiffies problems in the administration of the death penalty and the
problems of policing. With respect to the death penalty, there are widespread procedural
irregularities; an unacceptable average twenty-year stay on death row; and the imposition of
death by stoning for adultery or sodomy in 12 States. OEe Nigerian police force is seriously
under-resourced while confronted with a high violent crime rate; abuses, including excessive use
of force and executions are common. Police rely on pretexts, including armed robbery” and
attempted escape”, to justify extrajudicial executions. Resorting to these pretexts is facilitated
by the domestic legal framework, which provides close to carte blanche to the police to shoot
and kill at will. It is encouraging that, in August 2005, President Obasanjo acknowledged that
extrajudicial executions are widespread and made a clear commitment to rooting out and
punishing those responsible. To that end, the report identiffies measures required to improve the
situation;
(b) Sri Lanka: the Special Rapporteur visited from 28 November to
6 December 2005. He found that killings were symptomatic of the widespread use of police
torture, of the failure to rein in abuses committed or tolerated by the military, and of the
systematic eLorts by various armed groups, and particularly the Liberation Tigers of
Tamil Eelam (LTTE), to kill Tamils who refuse to support the LTTE and to provoke military
retaliation. This visit proved timely, inasmuch as the ceaseffire agreement of February 2002
between the Government and the LTTE came under unprecedented stress in December 2005.
Until then, the ceaseffire between the parties' armed forces had been largely respected, with only
few exceptions. In contrast, the ceaseffire in relation to civilians had been repeatedly broken by a
series of so-called political killings”. The Special Rapporteur deplores the recent attacks on
Government personnel and reiterates that peace is necessary to fully ensure the right to life in
Sri Lanka. He also wishes to emphasize, however, that political killings” were not halted by the
ceaseffire and appear set to continue regardless of how the conflict develops. OEe report
(E/CN.4/2006/53/Add.5) identiffies measures to improve the situation.
4. Fofrow-up procedure for country visits
19. 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. As indicated in his previous report to the Commission
(E/CN.4/2005/7, para. 30), for the purposes of following up on his predecessor's
recommendations the Special Rapporteur sought information from appropriate sources, including
intergovernmental organizations, non-governmental organizations and civil society groups. In
September 2005 he addressed the four Governments concerned and sought information on the
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eLorts they had made to consider and implement the recommendations of the respective
reports, as well as on the constraints relating thereto. Letters were sent to Honduras on
1 September 2005, Jamaica on 19 September 2005, Sudan on 21 September 2005, and Brazil
on 30 September 2005. These letters included summaries of the information received with
respect to each country from the other sources mentioned above. Initially, the Special
Rapporteur requested Governments to submit their observations by 1 November 2005. Upon
request, he extended this deadline to 15 December 2005, and in one case to 10 January 2006.
Regrettably, none of the four Governments submitted any observations. The relevant addendum
is thus based entirely on the information received from other sources.
II. OVERVIEW OF SELECTED ISSUES OF CONCERN
AND THE ROLE OF TRANSPARENCY
20. The engines that generate the information for this report consist of the country missions
undertaken each year, the extensive number of communications received, and the detailed
analytical reports provided by civil society groups and experts. OEe resulting mission reports
and the compilation of communications sent to Governments speak largely for themselves, but
they are also case-speciffic and are thus not, in themselves, an adequate vehicle for exploring
some of the most important normative issues that arise in the eLort to put an end to extrajudicial
executions.
21. This part of the report thus seeks to track evolving understandings of the normative
content of speciffic rights and of the ways in which they apply in specific contexts, and to
highlight the interrelationships between the key right to life norm and other parts of the human
rights framework. Much lip service is paid to the interdependence and interrelatedness of all of
the various rights but all too oifien that does not prevent them from being treated in isolation from
one another. As a result, insuffficient regard is paid to the linkages and to the potentially
reinforcing and synergetic relationships among them. In the Special Rapporteur's ffirst report he
emphasized the umbrella role played by the concept of accountability within the overall
framework of human rights. In the present report the focus is on the notion of transparency,
which can be considered a vital dimension of accountability. 7 Following a brief note on the
normative importance of transparency the report focuses on three speciffic contexts in which it is
of particular importance to the issues arising under this mandate. OEey are: in relation to
commissions of inquiry set up to investigate large-scale or especially serious violations; in
relation to the death penalty; and in situations of armed conflict and occupation.
22. In addition, consideration is also given to a growing problem of so-called shoot-to-kill”
policies, either in response to the threat of terrorism or to signal that Governments intend to
crack down on a troubling problem such as looting, drug use or armed robbery.
A. The principle of transparency
23. The principal of transparency is central to the elimination of extrajudicial executions in
two respects. First, the right to political participation is a human right in itself as well as a
critical attribute of notions of good governance. In this regard it has been noted that a right to
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information or to appropriate transparency has now OEeen recognized as a prerequisite for the
legitimate exercise of public authority”. It has thus become a constitutive principle' of
governance within the nation state”. 8 Other commentators have observed that decisional
transparency and access to information are important foundations for the eLective exercise of
participation rights and rights of review. They also promote accountability directly by exposing
administrative decisions and relevant documents to public and peer scrutiny”. 9
24. Second, transparency is crucial in relation to various techniques used to reduce the
occurrence of extrajudicial executions and to inquire into their causes and potential remedial
measures. OEe issues identiffied in the following parts of this report illustrate this dimension.
B. Transparency in investigating violations: conunissions of inquiry
25. One of the recommendations contained in the Special Rapporteur's report to the
Commission in 2005 was that national-level investigations of alleged 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 ffindings, and any prosecutions subsequently undertaken.' 0
26. OEis recommendation is closely related to the question of impunity which has long been a
major focus of the work of the Special Rapporteur on extrajudicial executions. OEe problem is
typically manifested by a failure to investigate, a failure to report eLectively and openly
following investigations, or a failure to punish (commensurately) those responsible. An
important role in this regard has been played by commissions of inquiry established at the
national level. When such initiatives are launched, which is frequently the case following
massacres, deaths in custody, police or military shootings, or other extrajudicial forms of
execution, they are all too oifien designed mainly to blunt outrage rather than to establish the
truth. Some such commissions are undertaken in good faith and result in published reports
which contribute signifficantly to the promotion of respect for human rights. An excellent
example is that established in 2005 by the Government of Nigeria to investigate the killing of the
so-called Apo 6.” In other cases, however, the procedures, results and responses are much less
satisfactory. Some commissions are close to being pro forma activities, in others they are
undertaken in good faith but the results are never released, and in still others Governments do
eventually release the reports but there is no follow-up of any type.
27. In principle, commissions of inquiry may be perfectly appropriate measures for achieving
justice and accountability in response to human rights abuses involving extrajudicial executions.
OEe challenge is to establish accepted standards against which the design of commissions of
inquiry can be assessed. In view of the importance of this issue, as illustrated by the many
occasions on which the Special Rapporteur has encountered problems linked to inquiries that
have been set up, he plans to undertake a study on commissions of inquiry which will be
presented to the Human Rights Council in the course of 2007. OEe study will focus on
identifying the principal problems that have been experienced in the past in relation to the
conduct of and follow-up to such inquiries and on recommending best practices which might be
taken into account by Governments in the future.
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C. Transparency in relation to the death penalty
28. In his 2005 report to the Commission on Human Rights (E/CN.4/2005/7) the
Special Rapporteur drew attention to the problem of a lack of transparency in relation to the
death penalty. In particular, he observed that 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”.' 2 He observed that such secrecy is
incompatible with human rights standards in various respects, and concluded that 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”.' 3 In an addendum to the present report the Special Rapporteur analyses in detail the
legal basis of the obligation to be transparent in such matters. Consideration is also given to a
range of case studies that illustrate the major problems that exist in this area.
29. Transparency is among the fundamental due process safeguards that prevent the arbitrary
deprivation of life. As the Universal Declaration of Human Rights and the International
Covenant on Civil and Political Rights (ICCPR) state, everyone has the right for criminal
charges against him or her to be adjudicated in view of the public. The report looks in detail at
article 14, paragraph 1, of the ICCPR, which narrowly limits the scope for secrecy at trial, and
provides a powerful transparency requirement thereaifier. Secrecy throughout the
post-conviction process is also limited by State obligations to ensure due process rights and to
respect the right to freedom from cruel, inhuman or degrading treatment or punishment.
30. Two key conclusions result from this analysis. First, the public is unable to make an
informed evaluation as to the death penalty in the absence of key pieces of information. In
particular, any meaningful public debate must take place in the light of detailed disclosure by the
State of information relating to: the number of persons sentenced to death; the number of
executions actually carried out; the number of death sentences reversed or commuted on appeal;
the number of instances in which clemency has been granted; and each of the above broken
down according to the offence for which the condemned person was convicted. Notwithstanding
the critical role of this information in any informed decision-making process, many States
choose secrecy over transparency, but still claim that capital punishment is retained in part
because it attracts widespread public support.
31. Second, condemned persons, their families, and their lawyers should be provided with
timely and reliable information on the procedures and timing of appeals, clemency petitions, and
executions. Experience demonstrates that to do otherwise is highly likely to lead to violations of
due process rights and to inhuman and degrading treatment.
32. The case studies demonstrate that non-compliance with these transparency obligations is
of considerable practical relevance. Although the death penalty is not prohibited by international
law, its use is potentially inconsistent with respect for the right to life when its administration is
cloaked in secrecy.
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D. Transparency in armed conflict: accountability for violations
of the right to life in armed conffct and occupation
33. It is of continuing concern that States oifien fail to comply with their obligation to
eLectively investigate, prosecute, and punish violations of the right to life in situations of armed
conflict and occupation. OEis failure has taken a number of forms. Policies on investigating
deaths have permitted unjustiffiable exceptions and have oifien failed to provide for impartiality
and independence. During armed conflicts, even grave crimes such as murder are oifien leniently
punished when committed by members of the armed forces. Trends in the investigation,
prosecution, and punishment of commanding offcers have been even less encouraging.
Impunity for individuals has not been the only failure. In some cases, a strategic reluctance to
engage in OEody counts” may have impeded full consideration of how the impact of armed
conflict on civilian populations can be minimized. ELorts at monitoring the consequences of
choices of weapons and tactics on the incidental loss of civilian life generally remain ad hoc,
leaving compliance with requirements of proportionality and precautionary measures
under-examined.' 4
34. OEese practices threaten to roll back 50 years of progress in subjecting armed conflict to
the rule of law. OEe Geneva Conventions of 12 August 1949 ffirst established the legal obligation
of States to investigate alleged unlawful killings and to prosecute their perpetrators. Elaborating
the general obligation to respect and to ensure respect” for humanitarian law,' 5 the Geneva
Conventions mandated the penal repression of violations. In particular, when a State receives
allegations that someone has committed or ordered a grave breach - such as the wilful killing”
of a protected civilian' 6 - the State is then legally obligated to search for him and either try him
before its own courts or extradite him to another State that has made out a prima facie case.' 7
Should he be found guilty, the State must impose an effective penal sanction [ I”.' 8 However,
gaps remained in this accountability regime. In international armed conflicts, some individuals
were excluded from protection by their nationality.' 9 In non-international armed conflicts, no
mechanism for penal repression was provided. 20 The scope of legal protection has, however,
steadily improved. Since the Geneva Conventions were adopted in 1949, States have both ffilled
its gaps and supplemented its protections with new instruments of human rights law, such as the
ICCPR, which was adopted in 1966. OEus, with respect to non-international conflicts, the
additional protection offered by human rights law was acknowledged in the Preamble to the
Second Additional Protocol adopted in 1977.21 Today, human rights law and humanitarian law
together require accountability in all circumstances.
35. Human rights law imposes a duty on States to investigate alleged violations of the right to
life promptly, thoroughly and eLectively through independent and impartial bodies”. 22 OEis
duty is entailed by the general obligation to ensure the right to life to each individual. OEe
particular measures States may take to fulffil this duty have been elaborated in detail with respect
to law enforcement operations. Most prominently, in 1989 the Economic and Social Council
adopted the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and
Summary Executions. 23 OEese detailed principles should guide States whenever they carry out
law enforcement operations, including during armed conflicts and occupations. 24 However, in
other situations arising out of armed conflict and occupation, the modalities of the duty to
investigate alleged violations have received less attention.
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36. Armed conflict and occupation do not discharge the State's duty to investigate and
prosecute human rights abuses. The right to life is non-derogable regardless of circumstance. 25
This prohibits any practice of not investigating alleged violations during armed conflict or
occupation. As the Human Rights Committee has held, It is inherent in the protection of rights
explicitly recognized as non-derogable ... that they must be secured by procedural guarantees ...
The provisions of the [ ICCPRI relating to procedural safeguards may never be made subject to
measures that would circumvent the protection of non-derogable rights.” 26 It is undeniable that
during armed conflicts circumstances will sometimes impede investigation. Such circumstances
will never discharge the obligation to investigate - this would eviscerate the non-derogable
character of the right to life - but they may aLect the modalities or particulars of the
investigation. In addition to being fully responsible for the conduct of their agents, in relation to
the acts of private actors States are also held to a standard of due diligence in armed conflicts as
well as peace. On a case-by-case basis a State might utilize less eLective measures of
investigation in response to concrete constraints. For example, when hostile forces control the
scene of a shooting, conducting an autopsy may prove impossible. Regardless of the
circumstances, however, investigations must always be conducted as eLectively as possible and
never be reduced to mere formality. 27 In this regard, there are several areas of special concern.
37. The State obligation to conduct independent and impartial investigations into possible
violations does not lapse in situations of armed conflict and occupation. 28 While the modalities
of this obligation in situations of armed conflict have not been fully settled, some points are
clear:
. States must establish institutions capable of complying with human rights law
obligations; there is no double standard for military justice. While human rights law
does not dictate any particular institutional arrangement for the administration of
justice, neither does it permit exceptions to its requirements. Investigations and
prosecutions proceeding under military jurisdiction must - in each case and without
exception - comply with the requirements of independence and impartiality;
. As an empirical matter, subjecting allegations of human rights abuse to military
jurisdiction oifien leads to impunity. 29 In such situations, investigation and
prosecution by bodies independent of the military is necessary;
. While commanding offcers have a duty to investigate and repress violations, 30 there
is growing awareness that additional mechanisms of investigation are needed in order
to ensure impartiality. 3 '
38. Military justice was a form of self-regulation that ensured discipline among a State's
armed forces and that led, as a matter of reciprocity, to lawful conduct on the part of opposing
forces. As international law has increasingly protected civilians, aspects of military justice have
begun to appear anachronistic. Many States have responded by imposing restrictions on military
jurisdiction under both domestic and international law. All States should study whether their
systems ofjustice provide victims of armed conflict with the reality and the appearance of
genuinely independent and impartial investigation.
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39. OEe legal obligation to eLectively punish violations is as vital to the rule of law in armed
conflict as in peace. It is, thus, alarming when States punish crimes committed against civilians
and enemy combatants in a lenient manner. OEe legal duty to punish those individuals
responsible for violations of the right to life is not a formality. Punishment is required in order to
ensure the right to life by vindicating the rights of the victims and preventing impunity for the
perpetrators. Therefore, States must punish those individuals responsible for violations in a
manner commensurate with the gravity of their crimes. International law does not specify a
particular schedule of sentences, but there are many indications of whether a State is eLectively
penalizing unlawful killings, including:
. Are the crimes a State's soldiers commit against civilians and enemy combatants
punished as harshly as the crimes they commit against members of their own armed
forces?;
. Are crimes committed against foreign nationals punished as harshly as crimes
committed against compatriots?;
. How do the punishments imposed compare with those imposed by other States and by
international criminal courts and tribunals?
40. It is especially important to note that the stress and confusion of combat do not justify the
rejection or avoidance of the applicable standards; the realities of armed conflict are fully
accommodated by the substance of the applicable law and by the established defences to
criminal culpability. 32 Soldiers must be trained and held to the standards of international law.
Any double standard in punishment is inimical to the rule of law and may implicate the
prohibition of discrimination in human rights law.
41. OEe obligation to investigate is part and parcel of the obligation to ensure the right to life
and, thus, entails more than the determination of criminal responsibility. States are also
responsible for undertaking the systematic supervision and periodic investigation necessary to
ensure that their institutions, policies, and practices ensure the right to life as eLectively as
possible. Canada's experience in Somalia illustrates the complementary roles of criminal and
non-criminal investigation. Canada prosecuted and punished several soldiers for their actions in
Somalia, but it also established a Commission of Inquiry to determine the institutional defects
that allowed those abuses to occur. By identifying pervasive problems in how rules of
engagement were draified, were disseminated through the chain of command, and were taught to
soldiers on the ground, Canada improved its institutional capacity to better ensure the right to life
in the future. States must constantly monitor and investigate whether they are effectively
ensuring human rights law and adopt all necessary measures to prevent the recurrence of a
violation.
42. Finally, it is important to acknowledge the unique characteristics of armed conflict.
However, the question of what rules govern the use of lethal force is completely distinct from the
question of investigating violations of these rules. While even intentional killing is oifien
permitted in armed conflict, a State cannot determine whether a particular act was lawful without
ffirst investigating what occurred. Whether, for example, the deceased was taking part in
E/CN.4/2006/53
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hostilities is an inherently factual question, requiring factual investigation. Likewise, the Special
Rapporteur cannot determine whether a particular incident falls within his mandate without ffirst
examining its facts. When he receives information alleging a violation, he will oifien need to be
informed by the State concerned of the evidentiary basis for its determination regarding any
status or activity that may have justiffied the use of lethal force. Conclusory determinations that
the deceased was a combatant or was taking part in hostilities when killed do not enable the
Special Rapporteur to respond eLectively to information and swiifily pursue the elimination of
extrajudicial, summary or arbitrary executions.
43. In the years ahead a greater eLort should be made to design indicators and criteria to
facilitate an evaluation of decisions as to proportionality and to give a greater objective
dimension to such judgement calls. In the course of conflict any such indicators would
necessarily be applied by the military personnel involved and would not readily be subject to
external scrutiny. Ex post facto monitoring, however, would be possible if belligerents
undertook to keep records of their evaluations and to make them public aifier a certain period of
time has elapsed following the end of a given conflict. Such record-keeping would also facilitate
prosecution and defence in possible war crimes trials. In addition, subsequent disclosure would
allow belligerents to counter false accusations and would counter the suggestions made by some
critics that international humanitarian law is not respected in war. By so doing it would
strengthen the potential willingness of those involved in such decision-making to respect the law.
E. Shoot-to-kill policies
44. In recent years there have been a number of high-proffile pronouncements by offficials, not
infrequently at the most senior level of Government, that they have given orders for the police or
the military to shoot to kill”, to shoot on sight”, or to use the utmost force” in response to a
particular challenge to law and order. Such statements have oifien been made in response to
perceived terrorist threats but they have also come as a response to widespread looting, to a high
incidence of armed robberies, or to an epidemic of drug abuse. All too often, the background
context is one in which the oLicial concerned has been subject to severe public criticism for
failing to take adequate measures to protect the population. Rather than asking whether
preventive measures taken in good time, or the use of accepted policing techniques,
appropriately reinforced if necessary, might have been suffcient to deal with the situation, the
temptation is to seek to escape blame by proclaiming a crackdown on crime, zero tolerance for
any individuals suspected of terrorist ambitions, or a policy of unleashing the full fury of the
State to root out drug dealers, etc.
45. But the rhetoric of shoot-to-kill and its equivalents poses a deep and enduring threat to
human rights-based law enforcement approaches. Much like invocations of targeted killing”,
shoot-to-kill is used to imply a new approach and to suggest that it is futile to operate inside the
law in the face of terrorism. However, human rights law already permits the use of lethal force
when doing so is strictly necessary to save human life. The rhetoric of shoot-to-kill serves only
to displace clear legal standards with a vaguely deffined licence to kill, risking confusion among
law enforcement off cers, endangering innocent persons, and rationalizing mistakes, while
avoiding the genuinely diffcult challenges that are posed by the relevant threat.
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46. OEe use of shoot-to-kill tactics also imports, either consciously or otherwise, the language
of international humanitarian law into situations which are essentially matters of law
enforcement that international law requires be dealt with within the framework of human rights.
OEe notion that the law of armed conflict is an appropriate frame of reference for a Government
seeking to deal with law enforcement issues is one that must be soundly rejected. To do
otherwise is tantamount to allowing Governments to declare war simultaneously on a given
group and on human rights in general.
47. At its crudest, this rhetoric turns on erroneous conceptions about human rights law.
OEere is no conflict between, for example, the human right not to be blown up by terrorists and
the human right not to be arbitrarily shot by the police. Under human rights law, States must at
once respect and ensure the right to life. 33 States have a legal duty to exercise due diligence” in
protecting the lives of individuals from attacks by criminals, including terrorists, armed robbers,
looters, and drug dealers. 34 This may require the use of lethal force against a suspect, but only
when doing so is proportionate and strictly unavoidable to prevent the loss of life. 35 No
derogation is permitted from the right to life, 36 and none is needed.
48. Human rights law unconditionally prohibits the needless killing of suspected criminals,
but it fully recognizes that lethal force is sometimes strictly necessary to save the lives of
innocent people from lawless violence. A measure of the value human rights law places on the
inherent right to life” is provided by the prohibition of the death penalty for other than the
most serious crimes”. 37 For lethal force to be considered to be lawful it must be used in a
situation in which it is necessary for self-defence or the defence of another's life. 38 The State's
legal framework must thus strictly control and limit the circumstances” in which law
enforcement off cers may resort to lethal force. 39 In addition to being pursuant to a legitimate
objective, the force employed by law enforcement offcers must be strictly unavoidable for its
achievement. Non-lethal tactics for capture or prevention must always be attempted if feasible.
In most circumstances, law enforcement offcers must give suspects the opportunity to
surrender, 40 and employ a graduated resort to force. 4 ' However, the use of lethal force may
prove strictly unavoidable when such tactics would unduly risk death or serious harm to law
enforcement off cers or other persons. For States to grant law enforcement offcers a vaguely
defined licence to shoot to kill even when other means of preventing a suspected attack are
available makes the daily lives of the innocent not safer, but far more hazardous. States facing
terrorist or other threats alleged to require exceptional measures should instead clarify the
implications of human rights law for law enforcement oLicers through training and written
guidance.
49. At their most sophisticated, shoot-to-kill policies overlook the role human rights
standards play in preventing tragic mistakes. OEe training documents published by the
International Association of Chiefs of Police (IACP) are representative of shoot-to-kill thinking,
and at critical points they advance doctrines that undermine the right to life. Human rights law
normally requires that off cers provide warnings, allow the opportunity for surrender, and
employ a graduated use of force before resorting to lethal measures. These requirements serve in
part to distinguish dangerous criminals, who can be stopped only with deadly force, from both
the deterrable and the innocent. OEere are, however, exceptions to the requirements of warnings
and a graduated response, because there are circumstances in which an immediate recourse to
E/CN.4/2006/53
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lethal force is strictly necessary to prevent an even greater loss of life. In most such situations,
this necessity is the result ofa threat's imminence. This too serves as a safeguard. When a
criminal is already in the process or visibly on the verge of using a weapon, there can be little
doubt regarding the inevitability of violence if immediate recourse to lethal force is not taken. A
suspected suicide bomber, however, poses somewhat diLerent challenges. Warnings and
non-lethal tactics are risky not because they might fail to prevent an already imminent act of
violence but because they might, in fact, trigger an explosion either by alerting the bomber that
this is his ffinal opportunity or by directly setting oLthe explosive material. With these risks in
mind, the IACP guidelines advise law enforcement offcers, in some circumstances, to shoot to
kill without warnings, without attempts at non-lethal tactics, and without an imminent threat.
This strips the use of lethal force of its usual safeguards - without providing any alternative
safeguards.
50. It is essential to account for the legal implications of the limited information offcers will
almost invariably have. OEe training documents refer constantly to suspected suicide bombers”,
but they neglect to emphasize the high level of certainty required before lethal force is lawful.
Unless intelligence is strong enough to permit interdiction before a suicide bombing operation
begins, the burden will oifien fall on individual offcers to evaluate whether a given person is a
suicide bomber. OEe IACP's approach relies extensively on proffiles of suicide bombers.
Persons with freshly shaved beards, signs of drug use, tightly held backpacks, etc., are suggested
as among the most obvious signs” of possible suicide bombers. However, the scarcity of actual
bombers relative to other people exhibiting these characteristics is such as to ensure that false
alarms will predominate. No one has claimed that meeting a proffile alone is suffficient to permit
the use of lethal force, but insofar as law enforcement tactics oifien preclude warning suspected
bombers, it is duff cult to see how an oLicer is to either conffirm or disconffirm his or her initial
suspicions. Under human rights law, suspicion is not enough to justify a resort to lethal force.
There is no legal basis for shooting to kill for any reason other than near certainty that to do
otherwise will lead to loss of life.
51. States that employ shoot-to-kill policies for dealing with suicide bombers must develop
legal frameworks to properly incorporate intelligence information and analysis into both the
operational planning and post-incident accountability phases of State responsibility. If there is a
solid factual basis for believing that a suspect is a suicide bomber capable of detonating his
explosive if challenged, and if, to the extent possible, that information has been evaluated by
persons with appropriate experience and expertise, the immediate use of lethal force may be
justiffied. However, States employing shoot-to-kill procedures must ensure that only such solid
information, combined with the adoption of appropriate procedural safeguards, will lead to the
use of lethal force.
52. In addition to the legal arguments, it should also be noted that the consequences of
mistakenly killing innocent persons on the basis of shoot-to-kill policies are potentially highly
counter-productive. OEey include a loss of public confidence in the police, damage to
community relations where a particular community has, in eLect, been targeted, and an
undermining of the willingness of members of the relevant community to cooperate with the
security services in the future.
E/CN.4/2006/53
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53. The multiple phases of State responsibility implicated necessitate broad terms of
reference for post-incident investigations by States and a broad ambit for inquiries by the
Special Rapporteur. The question of State responsibility under human rights law encompasses
but goes beyond the question of whether the offficer who ffired shots thereby incurred criminal
responsibility. This is well-illustrated by the case of McCann and Others v. United Kingdom. 42
Members of the United Kingdom's Special Air Service (SAS) shot and killed several members
of the Irish Republican Army (IRA). OEey had been given the - erroneous - information that one
of the IRA members possessed a push-button detonator for a car bomb. In light of that
information, the European Court of Human Rights did not contest their decisions that it was
absolutely necessary” to kill them when they made motions consistent with reaching for a
detonator.
54. However, the Court also held that the authorities controlling the operation had been
careless in collecting and analysing intelligence and had, thus, violated the victims' right to life
by communicating with certainty to the soldiers that there was such a car bomb and detonator.
In order for the Special Rapporteur to respond effectively to the information he receives, States
must cooperate in providing information on the earlier phases of State conduct - such as the legal
and regulatory framework governing the use of lethal force, the training provided to law
enforcement offficers, the planning of operations, and the use of intelligence - as well as on the
facts of the incident itself States employing shoot-to-kill policies must accept the implications
of shooting based on intelligence information on the requirement that States' publicly investigate
deaths and prosecute perpetrators where appropriate. Investigations and trials may require the
disclosure of some intelligence information. To withhold such information would be to replace
public accountability with unverifiable assertions of legality by the Government, inverting the
very idea of due process.
III. RECOMMENDATIONS
55. The Human Rights Council should establish a procedure whereby specific cases of
persistent or especiafry problematic non-cooperation with mandate-holders are
automatically flagged and taken up by the Council.
56. Transparency is essential wherever the death penalty is applied. The public is
unable to make an informed evaluation as to the death penalty in the absence of the
relevant facts. The oversight required to safeguard the right to life depends on the detailed
disclosure by the State, on at least an annual basis, of information relating to: the number
of persons sentenced to death; the number of executions actually carried out; the number
of death sentences reversed or conunuted on appeal; the number of instances in which
clemency has been granted; and each of the above broken down according to the oLence
for which the condenmed person was convicted.
57. Persons sentenced to death, their families and their lawyers should be provided with
timely and reliable information on the procedures and timing of appeals, clemency
petitions and executions. Experience demonstrates that to do otherwise is highly likely to
lead to violations of due process rights and to inhuman and degrading treatment.
E/CN.4/2006/53
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58. The use of lethal force by law euforcement offcers must be regulated within the
framework of human rights law. The rhetoric of shoot-to-kill should never be used. It
risks conveying the message that clear legal standards have been replaced with a vaguely
defmed licence to kift.
59. When States confronting the threat of suicide bombers adopt policies permitting the
use of lethal force without prior warnings, a prior graduated use of force, or clear signs of
an imminent threat, they must provide alternative safeguards to ensure the right to life.
The reliance on inteffgence information in such contexts means that States must develop
legal frameworks to properly incorporate intefrigence information and analysis into both
the operational planning and post-incident accountability phases of State responsibility;
and ensure that offcers are aware that there is no legal basis for shooting to kill for any
reason other than near certainty that to do otherwise will lead to loss of life.
60. The human rights obligation to investigate afreged violations of the right to life
promptly, thoroughly and eLectively through independent and impartial bodies does not
cease to apply during armed conffct. Similarly, the obligation to punish those individuals
responsible for violations in a maimer commensurate with the gravity of their crimes
applies during armed conffct. States must establish institutions capable of complying with
these human rights law obligations; there is, in particular, no double standard for military
justice.
61. National-level investigations of major incidents involving afreged violations of
international human rights or humanitarian law by the armed or security forces are
indispensable. A more detailed study needs to be undertaken in order to identify the
principal problems that have been experienced in the past in relation to the conduct of, and
follow-up to, such inquiries and to recommend best practices which might be taken into
account by Governments in the future.
62. Problems of police accountability are ubiquitous and greatly exacerbate problems
relating to extrajudicial executions. The chafrenge of setting up appropriate accountabifty
mechanisms are complex and deserve more sustained analysis than they have so far
received within the international human rights regime.
Notes
1 The term extrajudicia1 executions” is used in this report to refer to executions other than those
carried out by the State in conformity with the law. As explained in my previous report [ tIhe
terms of reference of this mandate are not best understood through efforts to deffine individually
the terms extrajudicial', summary' or arbitrary', or to seek to categorize any given incident
accordingly”. Rather, 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, para. 6).
2 See note 4 below.
E/CN.4/2006/53
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OEe 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 2004
and 30 September 2005, and responses received from Governments between 1 December 2004
and 1 December 2005. A comprehensive account of communications sent to Governments up
to 1 December 2005, along with replies received up to the end of January 2006, and the relevant
observations of the Special Rapporteur, are reflected in addendum ito this report.
See, e.g., Commission on Human Rights resolution 2005/34, paragraph 14: Strongly urges all
States to cooperate with and assist the Special Rapporteur so that his mandate may be carried out
eLectively, including, where appropriate, by issuing invitations to the Special Rapporteur when
he so requests, in keeping with the usual terms of reference for missions by special rapporteurs
of the Commission
6 Countries are listed in alphabetical order.
Jonathan Koppell, OEe legitimacy-accountability connection and transnational global
governance”, at . qub.ac.ukIqub200S/KoppellPaperUpd.pdf; and
Alasdair Roberts, A partial revolution: the diplomatic ethos and transparency in
intergovernmental organizations”, 64 Public Administration Review (2004) 410, available at
http ://faculty.maxwell. syr. edu/asroberts/documents/journal/Roberts PAR Revolt 2004.pdf.
Sol Picciotto, Democratizing globalism”, quoted in Alasdair Roberts, A partial revolution”.
Benedict Kingsbury, Nico Krisch, and Richard B. Stewart, OEe emergence of global
administrative Law”, 68 Law and Contemporary Problems (2005) 15.
10 E/CN.4/2005/7, paragraph 86.
See E/CN.4/2006/53/Add.4, paragraphs 8-i4.
12 E/CN.4/2005/7, paragraph 57.
13 E/CN.4/2005/7, paragraph 59.
14 See e.g. Marco Sass6li, Targeting: the scope and utility of the concept of military
objectives for the protection of civilians in contemporary armed conflicts”, in D. Wippman
and M. Evangelista (eds.), New Wars, New Laws? Applying the Laws of War in 21st Century
Conflicts (2005) 181 at 204-205.
Common article ito the Geneva Conventions of 12 August 1949; see also Protocol I,
article 87, paragraph 3.
E/CN.4/2006/53
page 23
16 OEis is not the only grave breach that may intentionally or unintentionally result in loss of life.
See Geneva Conventions I-TV, articles 50/51/130/147; Protocol I, articles 11, 85. Under the
Geneva Conventions of 1949, torture or inhuman treatment, including biological experiments”
and wilfully causing great suLering or serious injury to body or health” might well lead to a
death that is not itself wilful. Less directly, the same is true of compelling a prisoner of war [ or
person protected in Geneva (IV)I to serve in the forces of the hostile Power” or wilfully
depriving a prisoner of war [ or person protected in Geneva (IV)I of the rights of fair and regular
trial prescribed in this Convention”. Grave breaches related to medical procedures are extended
in article 11, paragraph 4 of Protocol I. In addition, article 85, paragraph 3 of Protocol I
classiffies a number of acts as grave breaches when committed wilfully, in violation of the
relevant provisions of this Protocol, and causing death or serious injury to body or health”.
(a) Making the civilian population or individual civilians the object of attack;
(b) Launching an indiscriminate attack aLecting the civilian population or civilian
objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or
damage to civilian objects, as deffined in article 57, paragraph 2 (a) (iii);
(c) Launching an attack against works or installations containing dangerous forces in
the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to
civilian objects, as deffined in article 57, paragraph 2 (a) (Hi);
(d) Making non-defended localities and demilitarized zones the object of attack;
(e) Making a person the object of attack in the knowledge that he is OEors de
combat”.
17 Article 49/50/129/146 of the Geneva Conventions (I-TV).
18 Article 49/50/129/146 of the Geneva Conventions (I-TV).
19 See Geneva Convention (IV), article 4. Note that the broader substantive reach of the
prohibition of wilful killing. Common article 3 to the Geneva Conventions; Protocol I,
article 75. OEese provisions reflect customary international law.
20 Common article 3 to the Geneva Conventions. Protocol II does not include any accountability
mechanisms either.
21 For an analysis of the simultaneous and complementary relationship of human rights and
humanitarian law see E/CN.4/2005/7, paragraphs 41-54.
22 Human Rights Committee, general comment No. 31, Nature of the legal obligation on
States Parties to the Covenant” (2004), (CCPRIC/21/Rev.1/Add.13, para. 15). See also
Commission on Human Rights resolution 2004/37, paragraph 5, in relation to the mandate of the
Special Rapporteur: Reiterates the obligation of all States to conduct exhaustive and impartial
investigations into all suspected cases of extrajudicial, summary or arbitrary executions, to
identify and bring to justice those responsible, while ensuring the right of every person to a fair
E/CN.4/2006/53
page 24
and public hearing by a competent, independent and impartial tribunal established by law, to
grant adequate compensation within a reasonable time to the victims or their families and to
adopt all necessary measures, including legal and judicial measures, in order to bring an end to
impunity and to prevent the recurrence of such executions, as stated in the Principles on the
Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions.”
23 Economic and Social Council resolution 1989/65 of 24 May 1989.
24 See Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and
Summary Executions, Principle 1 ( ... Exceptional circumstances including a state of war or
threat of war, internal political instability or any other public emergency may not be invoked as a
justiffication of such executions. Such executions shall not be carried out under any
circumstances including, but not limited to, situations of internal armed conflict, excessive or
illegal use of force by a public off cial or other person acting in an offcial capacity or by a
person acting at the instigation, or with the consent or acquiescence of such person, and
situations in which deaths occur in custody.”).
25 ICCPR, article 4, paragraph 2.
26 Human Rights Committee, general comment No. 29, Derogations from provisions of the
Covenant during a state of emergency” (2001), paragraph 15.
27 See Inter-American Court of Human Rights, Vel6squez Rodriguez Case, Judgment of
July 29, 1988, paragraph 177: OEe duty to investigate, like the duty to prevent, is not breached
merely because the investigation does not produce a satisfactory result. Nevertheless, it must be
undertaken in a serious manner and not as a mere formality preordained to be ineLective. An
investigation must have an objective and be assumed by the State as its own legal duty, not as a
step taken by private interests that depends upon the initiative of the victim or his family or upon
their oTher of proof, without an eLective search for the truth by the government.”
28 . .
Human Rights Committee, general comment No. 31(2004), paragraph 15 ( the general
obligation to investigate allegations of violations promptly, thoroughly and eLectively through
independent and impartial bodies ... A failure by a State Party to investigate allegations of
violations could in and of itself give rise to a separate breach of the Covenant”); Human Rights
Committee, general comment No. 29: Derogations from provisions of the Covenant During a
State of Emergency (2001), paragraph 15 ( It is inherent in the protection of rights explicitly
recognized as non-derogable ... that they must be secured by procedural guarantees ... OEe
provisions of the Covenant relating to procedural safeguards may never be made subject to
measures that would circumvent the protection of non-derogable rights”).
29 Former Special Rapporteurs on extrajudicial, summary or arbitrary executions have identiffied
this relationship time and again. E/CN.4/1995/61, paragraph 93 ( Military tribunals, particularly
when composed of military offficers within the command structure of the security forces, very
oifien lack the independence and impartiality required under international law. Military
jurisdiction over human rights violations committed by members of the security forces very oifien
results in impunity”). E/CN.4/1999/39, paragraph 67 ( Jii some cases situations of impunity are
E/CN.4/2006/53
page 25
a direct product of laws or other regulations which explicitly exempt public offcials or certain
categories of State agents from accountability or prosecution ... OEe Special Rapporteur is also
increasingly concerned about the practice of prosecuting members of security forces in military
courts, which oifien fall short of international standards regarding the impartiality, independence,
and competence of the judiciary”).
30 Protocol I, article 87.
31 OEe development of the United Kingdom's policy on investigations over the past few years is
instructive. OEe June 2003 policy of having the Royal Military Police (RMP) investigate and
then decide on prosecution was shortly replaced with the July 2003 policy under which, If the
Commanding Offcer (CO) of the soldier was satisfied, on the basis of the information available
to him, that the soldier had acted lawfully and within the rules of engagement, then there was no
requirement to initiate an investigation by the military police.” Initially, then, the
United Kingdom moved from a greater to lesser level of independence in the investigative
process. However, according to Lieutenant General Sir John Reith, Chief of Joint Operations,
Between January and April 2004 there was a further reconsideration of this policy. OEis was
prompted by the fact that the environment had become less hostile and also by the considerable
media and Parliamentary interest in incidents involving UK forces in which Iraqis had died. On
24 April, a new policy was adopted by MND (SE) [ Multi-National Division - Southeast l which
required all shooting incidents involving UK forces which result in a civilian being killed or
injured to be investigated by SIB (RMP). Exceptionally the Brigade Commander may decide
that an investigation is not necessary and in any such case the decision must be notiffied to the
Commander MND (SE) in writing.” Al Skein/v. Secretary of State for Defence, High Court of
Justice, Queen's Bench Division, Divisional Court, [ 20041 EWHC 2911 (Admin),
14 December 2004, paragraphs 47-54. [ OEe quote from Lt. Gen. Reith is from his written
witness statementi.
32 See generally Marco Sass6li, Le g&nocide rwandais, lajustice militaire suisse et le droit
international”, Volume 12, Revue suisse c /c droit international et de droit europ en (2002) 151,
at 175-176.
ICCPR, article 2, paragraph 1.
E/CN.4/2005/7, paragraphs 71-74. Jim nez Vaca v. Colombia, Human Rights Committee
(25 March 2002), paragraph 7.3, ( [ TIhe Committee points out that article 6 of the Covenant
implies an obligation on the part of the State party to protect the right to life of every person
within its territory and under its jurisdiction.”).
Basic Principles on the Use of Force and Firearms by Law Enforcement Off cials, Principle 9
( In any event, intentional lethal use of ffirearms may only be made when strictly unavoidable in
order to protect life”).
36 ICCPR, article 4, paragraph 2.
E/CN.4/2006/53
page 26
Baboeram v. Sun name, Human Rights Committee (4 April 1985), paragraph 14, links the
most serious crimes” and use of lethal force standards.
38 In Baumganten v. Germany the Human Rights Committee (31 July 2003) found that shooting
persons attempting to cross the border from the Former German Democratic Republic was a
violation of the right to life. ( The Committee recalls that even when used as a last resort lethal
force may only be used, under article 6 of the Covenant, to meet a proportionate threat.”)
Baboenam v. Sun name, Human Rights Committee (4 April 1985), paragraph 14.
40 Su6nez c /c Guenneno v. Colombia, Human Rights Committee (31 March 1982), paragraph 13.2,
( the police action was apparently taken without warning to the victims and without giving them
any opportunity to surrender to the police patrol or to oTher any explanation of their presence or
intentions”). Basic Principles on the Use of Force and Firearms by Law Enforcement Offcials,
Principle 10 ( In the circumstances provided for under Principle 9, law enforcement offcials
shall identify themselves as such and give a clear warning of their intent to use ffirearms, with
suffcient time for the warning to be observed, unless to do so would unduly place the law
enforcement off cials at risk or would create a risk of death or serious harm to other persons, or
would be clearly inappropriate or pointless in the circumstances of the incident”).
41 Basic Principles on the Use of Force and Firearms by Law Enforcement Off cials, Principle 4
( Law enforcement off cials, in carrying out their duty, shall, as far as possible, apply
non-violent means before resorting to the use of force and ffirearms. They may use force and
ffirearms only if other means remain ineffective or without any promise of achieving the intended
result”).
42 European Court of Human Rights, App. No. 18984/9 1 (27 September 1995).
