Aadel Collection
Report of the Special Rapporteur, Mr. Bacre Waly Ndiaye, submitted pursuant to Commission on Human Rights resolution 1997/61
UNITED
NATIONS
Economic and Social
Council
COMMISSION ON HUMAN RIGHTS
Fifty-fourth session
Item 10 of the provisional agenda
Distr.
GENERAL
E / CN. 4 / 1998 / 68
23 December 1997
Original: ENGLISH
QUESTION OF THE VIOLATION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS
IN ANY PART OF THE WORLD, WITH PARTICULAR REFERENCE TO COLONIAL
AND OTHER DEPENDANT COUNTRIES AND TERRITORIES
Extrajudicial, summary or arbitrary executions
Report of the Special Ra orteur, Mr. Bacre Waly Ndiaye, submitted
pursuant to Commission on Human Rights resolution 1997/61
CONTENTS
Paragraphs
Introduction . . .
1 -
4
I. THE MANDATE . . .
5 -
10
A. Terms of reference
5 -
7
B. Violations of the right to life upon which
the Special Rapporteur takes action . . .
8
5
C. Legal framework . . .
9
6
D. Methods of work . . .
10
6
Page
4
4
4
E
GE.97-l4584 (E)
E/CN. 4/1998/68
page 2
CONTENTS ( continued )
Paragraphs Page
11-25 6
11 6
12-18 7
19-21 8
22-25 9
26 - 56 10
26 - 28 10
29 - 31 10
32 - 35 11
36 - 38 12
E. Deaths due to attacks or killings by security
forces, paramilitary groups or private forces
cooperating with or tolerated by the State .
F. Violations of the right to life during armed
conflicts
G. Expulsion, refoulement or return of persons
to a country or place where their lives are
in danger
H. Genocide
I. Deaths due to acts of omission
3. Impunity
K. Rights of victims
IV. ISSUES REQUIRING THE SPECIAL RAPPORTEUR'S
ATTENTION
A. Violations of the right to life of women . .
B. Violations of the right to life of minors .
C. The right to life and mass exoduses . . . .
39 - 41 13
42 - 43 13
44 - 45 14
46 - 47 14
48 - 50 14
51 - 53 15
54 - 56 15
57 - 75 16
57 - 59 16
60 - 62 17
63 - 64 17
II.
ACTIVITIES
A. Consultations
B. Communications
C. Visits
D. Other activities
III.
SITUATIONS INVOLVING VIOLATIONS OF THE RIGHT
TO LIFE
A. Capital punishment
B. Death threats
C. Deaths in custody
D. Deaths due to excessive use of force by
law enforcement officials
E/CN. 4/1998/68
page 3
CONTENTS ( continued)
Paragraphs Page
D. Violations of the right to life of individuals
carrying out peaceful activities in defence of
human rights and fundamental freedoms . . . . 65 - 67 18
E. Violations of the right to life of persons
exercising their right to freedom of
opinion and expression . 68 - 69 18
F. The right to life and the administration of
justice . 70 19
G. Violations of the right to life of persons
belonging to national, ethnic, religious
or linguistic minorities . 71 - 72 19
H. Violations of the right to life and terrorism 73 - 74 19
I. Violations of the right to life of individuals
who have cooperated with representatives of
United Nations human rights bodies (reprisals) 75 20
V. ISSUE OF SPECIAL CONCERN TO THE SPECIAL RAPPORTEUR 76 - 109 20
A. Capital punishment . . . 76 - 94 20
B. Impunity . . 95 - 101 25
C. Cooperation with the United Nations High
Commissioner for Human Rights and with other
United Nations bodies 102 - 109 26
VI. CONCLUDING REMARKS AND RECOMMENDATIONS 110 - 138 28
E/CN. 4/1998/68
page 4
Introduction
1. This report is submitted pursuant to Commission on Human Rights
resolution 1997/61 of 16 April 1997 entitled ‘ Extrajudicial, summary or
arbitrary executions”. It is the sixth report submitted to the Commission
on Human Rights by Bacre Waly Ndiaye and the fifteenth submitted to the
Commission since the mandate on ‘ Summary and arbitrary executions” was
established by Economic and Social Council resolution 1982/35 of 7 May 1982.
2. The report, which covers communications sent and received by the
Special Rapporteur from 2 November 1996 to 31 October 1997, is divided into
six chapters. In chapter I, the Special Rapporteur gives an interpretation of
the mandate entrusted to him. In chapter II, the Special Rapporteur reports
on the activities he has undertaken in the framework of his mandate during the
period under review. Chapter III contains an overview of the various
situations involving violations of the right to life relevant to his mandate.
In chapter IV, the Special Rapporteur discusses the issues requiring his
special attention while in chapter V, he presents those issues which are of
special concern to him. Lastly, chapter VI contains the Special Rapporteur's
concluding remarks and his recommendations aimed at ensuring more effective
respect for the right to life.
3. The Special Rapporteur further presents three addenda to the present
report. Addendum 1 describes 86 country situations, which include in summary
form the information transmitted and received by the Special Rapporteur,
including communications received from the Government, as well as the Special
Rapporteur' s observations where considered appropriate. Addendum 2 contains
the report on the Special Rapporteur's visit to Sri Lanka from 25 August to
5 September 1997, and addendum 3 the report on his visit to the United States
of America from 21 September to 8 October 1997.
4. The Special Rapporteur wishes to stress that the present report is only
approximately indicative of the occurrence of violations of the right to life
worldwide. This is mainly due to the fact that the report is exclusively
based on information brought to the Special Rapporteur's attention. Moreover,
the Special Rapporteur considered information regarding alleged violations of
the right to life which occurred during 1995, 1996 and 1997.
I. THE MANDATE
A. Terms of reference
5. In resolution 1997/61, the Commission on Human Rights requested the
Special Rapporteur to continue to examine situations of extrajudicial, summary
or arbitrary executions, to respond effectively to information which comes
before him and to enhance further his dialogue with Governments. The
Commission also requested the Special Rapporteur to continue monitoring the
implementation of existing international standards on 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.
E/CN. 4/1998/68
page 5
6. In the same resolution, the Commission further requested the Special
Rapporteur to apply a gender perspective in his work and to pay special
attention to violations of the right to life of children, participants in
demonstrations or other public manifestations, persons belonging to ethnic
minorities and individuals carrying out peaceful activities in defence of
human rights and fundamental freedoms.
7. In other resolutions adopted by the Commission on Human Rights at its
fifty-third session, special rapporteurs were requested to pay particular
attention to certain issues within the framework of their mandates. Those
resolutions included: 1997/16 entitled ‘ Rights of persons belonging to
national or ethnic, religious and linguistic minorities”; 1997/27 entitled
‘ Right to freedom of opinion and expression”; 1997/28 entitled
‘ Hostage-taking”; 1997/39 entitled ‘ Internally displaced persons”;
1997/42 entitled ‘ Human rights and terrorism”; 1997/43 entitled Integrating
the human rights of women throughout the United Nations system”;
1997/44 entitled ‘ The elimination of violence against women”; 1997/46 entitled
‘ Advisory services, technical cooperation and the Voluntary Fund for Technical
Cooperation in the Field of Human Rights”; 1997/56 entitled ‘Tooperation with
representatives of United Nations human rights bodies”; 1997/69 entitled
‘ Comprehensive implementation of and follow-up to the Vienna Declaration and
Programme of Action”; 1997/75 entitled ‘ Human rights and mass exoduses”; and
1997/78 entitled Wights of the Child”. In the implementation of his mandate,
the Special Rapporteur took into consideration the requests made by the
Commission on Human Rights in the aforementioned resolutions.
B. Violations of the right to life upon which
the Special Rapporteur takes action
8. During the period under review, the Special Rapporteur acted in the
following situations:
(a) Violations of the right to life in connection with the death
penalty. The Special Rapporteur intervenes when capital punishment is imposed
after an unfair trial or in the case of a breach of the right to appeal or the
right to seek pardon or commutation of the sentence. The Special Rapporteur
also undertakes action when capital punishment is imposed for crimes which
cannot be considered ‘ most serious crimes” as stipulated in article 6,
paragraph 2, of the International Covenant on Civil and Political Rights.
The Special Rapporteur may, moreover, intervene if the convicted person is
a minor, mentally retarded or insane, a pregnant woman or a recent mother;
(b) Death threats and fear of imminent extrajudicial executions by
State officials, paramilitary groups, private individuals or groups
cooperating with or tolerated by the Government, as well as by unidentified
persons who may be linked to the categories mentioned above;
(c) Deaths in custody owing to torture, neglect or the use of force,
or life-threatening conditions of detention;
E/CN. 4/1998/68
page 6
(d) Deaths due to the use of force by law enforcement officials, 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;
(e) Deaths due to the 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;
(f) Violations of the right to life during armed conflicts, especially
of the civilian population and other non-combatants contrary to international
humanitarian law;
(g) Expulsion, refoulement or return of persons to a country or a
place where their lives are in danger, as well as the prevention of persons
seeking asylum from leaving a country where their lives are in danger through
the closure of national borders;
(h) Genocide;
(i) Deaths due to acts of omission on the part of the authorities,
including mob killings. The Special Rapporteur may take action if the State
fails to take positive measures of a preventive and protective nature
necessary to ensure the right to life of any person under its jurisdiction;
(j) Breach of the obligation to investigate alleged violations of the
right to life and to bring those responsible to justice;
(k) Breach of the obligation to provide adequate compensation to
victims of violations of the right to life.
C. Legal framework
9. For an overview of the international legal standards by which the
Special Rapporteur is guided in his work, he makes reference to his report to
the Commission on Human Rights at its forty-ninth session (E/CN.4/1993/46,
paras. 42-68).
D. Methods of work
10. For a description of his methods of work, the Special Rapporteur refers
to his report to the Commission on Human Rights at its fiftieth session
(E/CN.4/1994/7, paras. 13-67), as well as his subsequent reports to the
Commission (E/CN.4/1995/61, paras. 9-11 and E/CN.4/1996/4, paras. 11-12).
II. ACTIVITIES
A. Consultations
11. The Special Rapporteur presented his report to the Commission on
Human Rights at its fifty-third session in April 1997. In May, August and
November/December 1997, the Special Rapporteur had consultations with staff
assisting him at the Office of the United Nations High Commissioner for Human
E/CN. 4/1998/68
page 7
Rights for the preparation of communications to Governments and for his
reports to the Commission on Human Rights. Preceding the consultations in
May, the Special Rapporteur attended a meeting of the committee responsible
for the drafting of a Special Rapporteur's manual and the meeting of
special rapporteurs/representatives, of experts and chairpersons of working
groups. During these visits, the Special Rapporteur also met with the
officer-in-charge of the Office of the High Commissioner and with the High
Commissioner for Human Rights.
B. Communications
12. During the period under review, the Special Rapporteur
transmitted 122 urgent appeals to the Governments of the following
44 countries: Albania (1), Angola (1), Argentina (2), Bahamas (1),
Belarus (1) , Bolivia (2) , Brazil (4), Burundi (1) , Central African
Republic (1), Chad (1), Chile (1), China (1), Colombia (24), Costa Rica (1),
Democratic Republic of the Congo (3), Egypt (1), Ethiopia (1), Gambia (1),
Guatemala (8), Honduras (3), India (6), Iran (Islamic Republic of) (6),
Iraq (3), Jamaica (1), Jordan (1), Kazakhstan (1), Malaysia (1), Malawi (1),
Mexico (5), Panama (1), Peru (2), Philippines (3), Rwanda (1), Singapore (1),
Swaziland (1), Turkey (3), Turkmenistan (3), Ukraine (2), United Arab Emirates
(1) , United Republic of Tanzania (2), United States of America (11) , Yemen
(1) , Venezuela (1) and Viet Nam (1) . He further sent urgent appeals to the
Palestinian Authority (3) and the head of the Taliban Council (1) . Among the
urgent appeals sent by the Special Rapporteur, 12 were transmitted jointly
with other experts of the Commission on Human Rights.
13. Urgent appeals were sent on behalf of 3,720 persons, of whom 168 were
identified. Urgent appeals were also sent on behalf of the following groups
of persons: detainees in Harerge province of Ethiopia; persons on trial for
their participation in the 1994 genocide in Rwanda; the civilian population of
north-east Choco in Colombia; members of the indigenous people Guarani-Kaiow
in Brazil; members of the Iraqi opposition in the town of Zakho in northern
Iraq; witnesses of the incident which took place on 14 January 1997 in
Cavaleiro in Brazil; suspects of theft in Chad; Burundi refugees in the United
Republic of Tanzania; officials of the Swaziland Federation of Trade Unions
and other trade union activists in Swaziland; inhabitants of El Sauce
community in Guatemala; inhabitants of the Remedios, Yondo and Cantagallo
municipalities in Colombia; civilians and those suspected to be members of
armed opposition groups in Agartala and Khowai subdivisions in the State of
Tripura, India; inhabitants of the municipality of El Carmen de Atrato in the
department of Choco, Colombia; farmers participating in demonstrations in the
regions of Guaviare, Caqueta and Putumayo, Colombia, as well as their
representatives; the civilian population of El Carmen de Bolivar in Colombia;
members and leaders of the Organizaci6n Campesina de la Sierra del Sur in
Mexico; members of the Coordinaci6n de Organismos No Gubiernamentales por la
Paz in Mexico; Rwandese Hutu refugees in Angola; employees of the Granja
Avicola Santa Clara in Colombia; employees of the Industria Harinera in
Guatemala; civilian population in Urab and inhabitants of Vigia del Fuerto,
Bocas de Bojay , Bellavista, Carillo, Mesopotamia, Bocas de Opogod6 and Guamal
in Colombia; members of the Centro de Investigaci6n y Educati6n Popular in
Colombia; villagers from Yesilyurt, Turkey, who acted as plaintiffs and
witnesses in a petition filed with the European Commission on Human Rights;
E/CN. 4/1998/68
page 8
witnesses in the case of Sarwan Singh, India; personas municipales in the
department of Antiquia, Colombia; persons in Uvira, Sud-Kivu, Democratic
Republic of the Congo; 140 families of the indigenous Suminao clan in the
Philippines.
14. In addition, the Special Rapporteur transmitted allegations regarding
the violation of the right to life of more than 960 individuals to the
Governments of the following 48 countries: Algeria, Argentina, Bahrain,
Bolivia, Brazil, Burundi, Cambodia, Cameroon, Chad, China, Colombia, Cuba,
Democratic Republic of the Congo, Ecuador, El Salvador, Ethiopia, Gambia,
Georgia, Guatemala, Honduras, Indonesia and East Timor, India, Iran (Islamic
Republic of) , Iraq, Israel, Kenya, Lesotho, Malawi, Mexico, Myanmar, Nepal,
Nigeria, Pakistan, Panama, Papua New Guinea, Paraguay, Peru, Philippines,
Romania, Spain, Sri Lanka, Tanzania, Thailand, Togo, Turkey, Tunisia, United
Republic of Venezuela and Yemen. In addition, he sent allegations of
violations of the right to life to the Palestinian Authority, the head of the
Taliban Council and the leader of the Turkish Cypriot community.
15. Allegations of a general nature were transmitted to the Governments of
Bolivia, Brazil, Cambodia, Colombia, El Salvador, Georgia, Guatemala, Mexico,
Nepal, Pakistan, Papua New Guinea, Peru, Turkey, Venezuela and Yemen as well
as to the Palestinian Authority and the head of the Taliban Council.
16. Follow-up communications were transmitted to the Governments of Algeria,
JIIgola, Armenia, Bulgaria, Ethiopia, France, Germany, India, the Philippines
and the United Kingdom of Great Britain and Northern Ireland, requesting
further clarification in regard of individual allegations to which the
Government had provided a reply.
17. During the period under review, that is from 2 November 1996
to 31 October 1997, the Governments of the following countries provided a
reply to communications addressed to them during 1997 or during previous
years: Angola, Belarus, Bahrain, Bolivia, Brazil, Bulgaria, Chile, China,
Colombia, Costa Rica, Cuba, Egypt, El Salvador, Ethiopia, France, Gambia,
Germany, Guatemala, Guyana, Honduras, India, Indonesia, Iran (Islamic
Republic of) , Iraq, Israel, Kenya, Malawi, Mexico, Myanmar, Nicaragua,
Nigeria, Paraguay, Peru, Philippines, Russian Federation, Senegal, Singapore,
Spain, Sri Lanka, Thailand, Turkey, Ukraine, United Kingdom of Great Britain
and Northern Ireland, United Republic of Tanzania, United States of America,
Uruguay and Venezuela. In addition, the Palestinian Authority and the
Turkish Cypriot community provided replies.
18. The Special Rapporteur is concerned that the Governments of Cambodia,
Papua New Guinea, Romania and Yemen have not replied to any of the
communications transmitted by the Special Rapporteur during the past
three years. Moreover, he regrets that the Governments of the Democratic
Republic of the Congo, Nepal and Pakistan did not provide replies to
communications sent during the past two years.
C. Visits
19. Pursuant to Commission on Human Rights resolution 1997/58, the Special
Rapporteur on extrajudicial, summary or arbitrary executions, together with
E/CN. 4/1998/68
page 9
the Special Rapporteur on the situation of human rights in Zaire and a member
of the Working Group on Enforced or Involuntary Disappearances, went to Rwanda
during the beginning of May with the objective of carrying out a joint mission
to investigate allegations of massacres and other issues affecting human
rights which had arisen from the situation prevailing in eastern Zaire since
September 1996. The independent experts of the Commission on Human Rights
were obliged to return to Geneva without having had the possibility to enter
eastern Zaire (now Democratic Republic of the Congo) to conduct the requested
investigations. The members of the joint mission presented a report to the
General Assembly at its fifty-first session (A/S1/942, annex) and its
fifty-second session (A/52/496, annex) .
20. In addition, the Special Rapporteur undertook a visit to Sri Lanka
from 25 August to S September 1997 and to the United States of America
from 21 September to 8 October 1997. The Special Rapporteur's reports on
these missions containing his findings, conclusions and recommendations can be
found in addenda 2 and 3 respectively to the present report.
21. Following a letter sent during 1996, the Special Rapporteur held a
meeting with the Permanent Representative of Algeria to the United Nations
Office at Geneva during the fifty-third session of the Commission on Human
Rights, during which it was proposed that the Special Rapporteur conduct a
visit to Algeria after the elections in June 1997. By letter dated
13 August 1997, the Special Rapporteur inquired whether such a visit could
take place at the end of January or beginning of February 1998. In the
absence of a reply, the Special Rapporteur reminded the Government of the
proposed dates by letter dated 17 October 1997. A subsequent response by the
Government as well as further consultations between the Special Rapporteur and
representatives of the Government of Algeria indicated that an appropriate
date for a visit by the Special Rapporteur jointly with the Special Rapporteur
on the question of torture will be discussed and established during the
fifty-fourth session of the Commission on Human Rights. During the period
under review, the Special Rapporteur also reiterated his interest in visiting
India and Turkey.
D. Other activities
22. During the period under review, the Special Rapporteur consulted
regularly with non-governmental organizations and participated in meetings and
conferences organized by Amnesty International (Brussels, 14 April 1997), the
Association for the Prevention of Torture (Geneva, 3 0-31 May 1997) , the
International Council on Human Rights Policy (Cairo, 25-30 June 1997) and the
International Human Rights Council (New York, 21-23 October 1997) . The
Special Rapporteur further participated in a conference on ‘ Islam and Human
Rights” organized by the New York-based Lawyers Committee for Human Rights
(London, 15-17 October 1997) and was invited to address the Wilton Park
Conference on ‘ The United Nations in the Twenty-First Century” (London,
14-16 November) .
23. The Special Rapporteur was called as an expert before the Special
Commission on Rwanda of the Belgian Parliament (Brussels, 16 April 1997) .
He also acted as a resource person in a regional training seminar on human
E/CN. 4/1998/68
page 10
rights reporting organized by the International Training Centre of the
International Labour Organization in Turin (JIItananarivo, 7-12 December 1997) .
24. The Special Rapporteur gave several newspaper, radio and television
interviews and participated in a British television production on his mandate
for children from 14 to 17 years old. Moreover, he attended a conference for
Le Monde Diplomatigue organized by Le Carrefour de la Pens&e (Le Mans, France,
12-14 December 1997) on the crisis in the Great Lakes Region of Africa.
25. The Special Rapporteur was pleased to note the publication in 1997 of
a revised version of Human Rights Fact Sheet No. 11, entitled Extrajudicial,
Summary or Arbitrary Executions .
III. SITUATIONS INVOLVING VIOLATIONS OF THE RIGHT TO LIFE
A. Capital punishment
26. In its resolution 1997/61, the Commission on Human Rights requested the
Special Rapporteur to continue monitoring the implementation of existing
international standards on 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.
27. In this context, the Special Rapporteur transmitted 43 urgent appeals on
behalf of 78 identified persons as well as on behalf of groups of unidentified
persons to the Governments of the following countries: Bahamas (1), China
(1) , Democratic Republic of the Congo (2) , Egypt (1) , Gambia (1) , Guatemala
(1), India (1), Iran (Islamic Republic of) (6), Iraq (1), Jamaica (1), Jordan
(1), Kazakhstan (1), Malaysia (1), Rwanda (1), Singapore (1), Turkmenistan
(2) , Ukraine (2), United Arab Emirates (1), United States of America (11) ,
Viet Nam (1) and Yemen (1) . The Special Rapporteur also sent urgent appeals
to the Palestinian Authority (3) and the head of the Taliban Council (1) .
28. For more detailed information on capital punishment, reference is made
to section V.A of this report.
B. Death threats
29. The majority of urgent appeals transmitted by the Special Rapporteur
were aimed at preventing loss of life after he had received reports informing
him of situations where the lives and physical integrity of persons were
feared to be at risk. The Special Rapporteur transmitted 65 urgent appeals to
the Governments of Argentina (2) , Belarus (1), Bolivia (2) , Brazil (4) ,
Burundi (1) , Chile (1) , Colombia (24) , Costa Rica (1) , Guatemala (7) ,
Honduras (3), Iraq (2), India (4), Mexico (5), Peru (2), the Philippines (3),
Turkey (2) and Venezuela (1) . These urgent appeals concerned 88 identified
persons and more than 1,800 unidentified persons as well as groups of persons
such as inhabitants of certain municipalities, witnesses, indigenous groups,
persons belonging to certain families and members of opposition parties.
E/CN. 4/1998/68
page 11
Moreover, the Special Rapporteur transmitted allegations of a general nature
to the Government of Mexico concerning death threats received by human rights
defenders.
30. Persons on whose behalf the Special Rapporteur acted had received,
directly or indirectly, death threats from State officials, paramilitary
groups and private individuals cooperating with or tolerated by the State.
Persons were said to have received death threats from State officials in
Argentina, Bolivia, Brazil, Burundi, Chile, Colombia, Costa Rica, Guatemala,
Honduras, India, Iraq, Mexico, the Philippines and Turkey. Death threats were
allegedly received from paramilitary groups in Brazil, Colombia, Guatemala and
India. Lastly, the Special Rapporteur addressed urgent appeals to the
Governments of Argentina, Belarus, Bolivia, Colombia, Guatemala, Honduras,
Mexico, the Philippines and Venezuela for persons who had allegedly received
death threats from private individuals cooperating with or tolerated by the
authorities.
31. The Special Rapporteur remains particularly concerned about the
situation in Colombia where death threats against human rights activists,
community activists and trade union leaders have become routine in recent
years. The Special Rapporteur also notes with concern that he transmitted
three urgent appeals to the Government of India, one on behalf of witnesses in
a case of a disappeared person and two on behalf of persons who had cooperated
with United Nations human rights bodies.
C. Deaths in custody
32. The Special Rapporteur transmitted allegations of the death in custody
of 107 persons, of whom 89 were identified, to the Governments of the
following countries: Algeria (1), Bahrain (2) , Brazil (4) , Cameroon (4),
Chad (8), China (3), Colombia (2), Ecuador (3), Ethiopia (4), Gambia (1),
Georgia (1), India (3), Israel (2), Kenya (4), Malawi (17), Mexico (8),
Nepal (4), Pakistan (14), Peru (2), Sri Lanka (2), Tunisia (1), Turkey (8) and
Venezuela (1); allegations were also sent to the Palestinian Authority (8) .
Allegations of a general nature regarding the occurrence of deaths in custody
were transmitted to the Governments of Georgia and Nepal as well as to the
Palestinian Authority.
33. In addition, the Special Rapporteur transmitted two urgent appeals on
behalf of detained persons whose lives were alleged to be in danger. The
Special Rapporteur transmitted one urgent appeal to Turkmenistan on behalf of
a person who was reportedly imprisoned after an anti-government demonstration
at the maximum security prison in Ashgabar alongside violent criminals,
allegedly to put him deliberately at risk. The Special Rapporteur also sent
an urgent appeal to Ethiopia on behalf of persons detained in what were
alleged to be 23 secret detention centres in Deder district as well as some
300 persons, most of them farmers, held at Harrar Central Prison after he had
received information regarding detainees being shot and killed in detention in
Deder district.
34. The Special Rapporteur remains particularly concerned about the
situation in Pakistan, as he continued to receive numerous reports of persons
who were killed in the custody of police officials. He is also concerned
E/CN. 4/1998/68
page 12
about the disturbing reports received regarding Ethiopia as well as about the
situation in Chad, Turkey, and the territory under control of the Palestinian
Authority.
35. The Special Rapporteur is compelled to note once more that, as a general
rule, and not only in countries where a pattern of deaths in custody exists,
there is very little indication of effective action by the State authorities
to bring to justice those responsible for this type of violation of the right
to life and to compensate the families of the victims.
D. Deaths due to excessive use of force
by law enforcement officials
36. The Special Rapporteur transmitted allegations regarding violations of
the right of life of 114 persons, of whom 51 were identified, to the
Governments of the following countries: Bahrain (1), Bolivia (16),
Brazil (9), Chad (5), Colombia (12), Ecuador (1), India (26), Iran (Islamic
Republic of) (27), Lesotho (5), Mexico (5), Nepal (1), Romania (3), Spain (1),
Venezuela (1) and Yemen (1) . These included allegations of violations of the
right to life as a consequence of excessive use of force against participants
in demonstrations in Bahrain, Colombia, Ecuador, the Islamic Republic of Iran,
Mexico, Nepal, Venezuela and Yemen. Allegations of a general nature relating
to deaths due to excessive use of force were transmitted to Nepal and
Venezuela.
37. The Special Rapporteur also transmitted urgent appeals to the
Governments of Albania, Chad, the Democratic Republic of the Congo, India and
Swaziland with the aim of preventing deaths due to excessive use of force by
law enforcement officials. The Special Rapporteur appealed to the Government
of India when he was informed that the government of the State of Tripura
reportedly had issued a statement empowering the armed forces, including the
Central Reserve Police Force and the Border Security Force, ‘ to fire upon or
otherwise use force even to the causing of death, after due warning of any
person acting in contravention of the law or any order in force prohibiting
the assembly of five or more persons or carrying of weapons”. The Special
Rapporteur transmitted an urgent appeal to the Government of Chad after he had
been informed that the commander of the specialized security units of the
National Gendarmerie had sent a telegram instructing all members of the nine
departments of the Gendarmerie to proceed to the physical elimination of all
thieves caught in the act.
38. The Special Rapporteur is particularly concerned about the situation in
India where, according to numerous allegations received, security forces,
including the Border Security Force and the Central Reserve Police Force, were
responsible for numerous violations of the right to life, in particular in
Manipur and in Jammu and Kashmir. The Special Rapporteur is further concerned
about the situation in Bolivia and in Brazil.
E/CN. 4/1998/68
page 13
E. Deaths due to attacks or killings by security forces,
paramilitary groups or private forces cooperating with
or tolerated by the State
39. The Special Rapporteur transmitted allegations of killings by
security forces, by paramilitary groups or by private forces cooperating
with or tolerated by the State which concerned 731 persons, of whom
449 were identified. They were transmitted to the Governments of
Argentina (1), Brazil (18), Burundi (170), Cambodia (18), Chad (23),
China (1), Colombia (239), Cuba (4), Cyprus (1), El Salvador (3),
Ethiopia (1) , Guatemala (7) , Honduras (2) , India (35) , Indonesia and
East Timor (24) , the Islamic Republic of Iran (4) , Iraq (4) , Kenya (1) ,
Mexico (17), Myanmar (8), Nepal (10), Nigeria (1), Pakistan (17), Panama (2),
Papua New Guinea (24), Paraguay (15), Peru (1), the Philippines (3),
Spain (1), Sri Lanka (10), Thailand (6), Togo (2), Turkey (15), Venezuela (10)
and Yemen (1), as well as to the Palestinian Authority (2) and the head of the
Taliban Council (30) . Furthermore, he transmitted allegations of a general
nature to the Governments of Brazil, Cambodia, El Salvador and Peru.
40. The Special Rapporteur transmitted allegations of deaths due to attacks
by paramilitary groups to the Governments of Cambodia, Colombia, Mexico and
Panama, and by private individuals cooperating with or tolerated by the State
to the Governments of Colombia, Guatemala, Honduras, Mexico, Paraguay and
the Philippines.
41. The Special Rapporteur remains extremely concerned about the situation
in Colombia where attacks conducted by members of the army and paramilitary
groups against those believed to cooperate with the guerillas have allegedly
led to the deaths of many innocent civilians.
F. Violations of the right to life during armed conflicts
42. The Special Rapporteur remains extremely concerned about the high number
of civilians and persons hors de combat killed during internal armed conflicts
in all regions of the world. Many thousands of persons not participating in
armed confrontations have lost their lives as a result of the use of
indiscriminate or disproportionate force, the utilization of anti-personnel
mines or the blockage of goods and services, including relief assistance, in
countries such as Afghanistan, Colombia, the Congo, the Democratic Republic of
the Congo and Sri Lanka.
43. In accordance with resolution 1997/61, in which the Commission urged
the Special Rapporteur to draw to the attention of the United Nations
High Commissioner for Human Rights such situations of extrajudicial, summary
or arbitrary executions as were of particularly serious concern to him or
where early warning might prevent further deterioration, the Special
Rapporteur on 9 July 1997 informed the officer-in-charge of the Office of the
High Commissioner for Human Rights of his serious concern with regard to the
situation reigning in the Congo. According to reports received by the Special
Rapporteur, confrontations between militias of President Pascal Lissouba and
former President Denis Sassou Nguesso, which started on 5 June 1997, had led
E/CN. 4/1998/68
page 14
to numerous victims as a result of indiscriminate shelling on residential
areas of Brazzaville and summary executions of civilians and combatants taken
as prisoners.
G. Expulsion, refoulement or return of persons to a
country or place where their lives are in danger
44. The Special Rapporteur transmitted urgent appeals to the Governments of
JIIgola, Malawi, Panama, Turkey and the United Republic of Tanzania on behalf
of persons or groups of persons who were reportedly at risk of imminent
extradition, refoulement or return to countries where there were serious
grounds to believe that their lives were at risk.
45. One urgent appeal transmitted to the Government of the United Republic
of Tanzania concerned Burundian refugees, the other some 100 Zairian
nationals, some of them prominent members of President Mobutu's party and some
known as political opponents or critics of the Alliance of Democratic Forces
for the Liberation of Congo-Zaire. The urgent appeal transmitted to Turkey
concerned an Iranian asylum seeker who reportedly entered Turkey illegally
and was to be returned to the Islamic Republic of Iran within five days of
arrival, despite the fact that several members of his family had been executed
in Iran and he was being sought by the authorities. The urgent appeal sent to
Malawi concerned some 765 Rwandese refugees and some 470 refugees from the
Democratic Republic of the Congo who were allegedly in the process of being
forcibly returned to their countries despite alarming reports of massive human
rights violations. The urgent appeal which the Special Rapporteur transmitted
to the Government of Panama was sent on behalf of 400 farmers and their
families who were reportedly being returned to Colombia despite their lives
allegedly being at risk.
H. Genocide
46. The Special Rapporteur continued to observe a great reluctance on the
part of the international community to use the term ‘ genocide”, even when
referring to situations of grave violations of the right to life which seem to
match clearly the criteria contained in article II of the Convention on the
Prevention and Punishment of the Crime of Genocide.
47. The Special Rapporteur remains extremely concerned about the situation
in the Great Lakes region. The joint mission charged with investigating
allegations of massacres and other human rights violations in eastern Zaire
(now Democratic Republic of the Congo) since September 1996 noted in its
report to the General Assembly (A/51/942, annex), with regard to the ethnic
massacres whose victims were mostly Hutus from Burundi, Rwanda and former
Zaire, that its preliminary opinion was that some of the alleged massacres
could constitute acts of genocide and that an in-depth investigation in the
territory of the Democratic Republic of the Congo could clarify this
situation.
I. Deaths due to acts of omission
48. The Special Rapporteur received information on deaths which allegedly
occurred due to authorities' failure to prevent mobs from carrying out
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page 15
so-called ‘ popular justice” in Guatemala and Mexico. The Special Rapporteur
is aware that in many other countries hundreds of people were lynched or set
on fire because they were suspected of theft. He is particularly concerned
that in Ghana, C6te d'Ivoire and, more recently, Senegal persons, in
particular foreigners, were reportedly killed by mobs after having been
accused of ‘ stealing a person's sexual organs” through the most simple
physical contact such as shaking hands.
49. The Special Rapporteur transmitted an allegation to the Government
of Mexico concerning three persons accused of murder who were killed on
1 January 1996 by a mob in Rio Chiquito. The Special Rapporteur also
transmitted an allegation to the Government of Guatemala on behalf of four
persons, including a clergyman, killed on 13 November 1996 by a mob in
Momstenango, Totonicapan. In relation to this incident, the Special
Rapporteur was informed that the police had mistaken them for robbers of
a bus.
50. The Special Rapporteur is gravely concerned about the situation in
Algeria where security forces reportedly in some cases did not intervene,
either to protect those who were being killed or to arrest those responsible
for the massacres, resulting in the deaths of hundreds of innocent civilians.
According to information brought to the Special Rapporteur's attention, many
massacres of civilians in Algeria have taken place around the capital at very
short distances from security forces' barracks and outposts.
J. Impunity
51. Governments have an obligation to carry out exhaustive and impartial
investigations into allegations of violations of the right to life, to
identify, bring to justice and punish perpetrators, as well as to take
effective measures to avoid the recurrence of such violations. The Special
Rapporteur notes that in most of the countries where violations of the right
to life were committed, perpetrators have not systematically been brought to
justice. Moreover, in certain countries he notes a climate of impunity which
leads to further violations of the right to life. In fact, the Special
Rapporteur considers impunity to be the principal cause of the perpetuation
and encouragement of human rights violations, including extrajudicial, summary
or arbitrary executions.
52. Allegations relating to situations of impunity were transmitted to the
Governments of Brazil, Colombia, Guatemala and Papua New Guinea.
53. For more detailed information on impunity, reference is made to
section V.B of this report.
K. Rights of victims
54. The right of victims or their families to receive fair and adequate
compensation within a reasonable period of time is both a recognition of the
State's responsibility for the acts committed by its personnel and an
expression of respect for the human being. Granting compensation presupposes
compliance with the obligation to conduct investigations into allegations of
violations of the right to life with a view to identifying and prosecuting the
E/CN. 4/1998/68
page 16
alleged perpetrators. Compensation and other types of support or assistance
provided to the victims' families before such investigations are initiated or
concluded do not exempt Governments from this obligation.
55. The Special Rapporteur is concerned about the numerous reports he
received which indicate that in many cases of violations of the right to
life no compensation was provided. The absence of compensation to victims'
families seems to be the corollary of impunity. The Special Rapporteur
continues to regret that, despite his requests in letters transmitting alleged
cases of extrajudicial, summary or arbitrary executions, very few States have
provided him with information in this regard.
56. The Special Rapporteur also notes once more that neither of the two
Security Council resolutions establishing international criminal tribunals for
the former Yugoslavia and Rwanda contain provisions concerning compensation
for victims or their families while individuals, Governments or organizations
which suffered losses and damages as a direct result of Iraq's invasion and
occupation of Kuwait may receive compensation from the United Nations
Compensation Commission. The Special Rapporteur holds the opinion that the
establishment of an international fund for reparation payments should be
considered so as to allow for fair and adequate compensation to the victims'
families in accordance with paragraph 20 of the Principles on the Effective
Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions.
IV. ISSUES REQUIRING THE SPECIAL RAPPORTEUR'S ATTENTION
A. Violations of the right to life of women
57. During the period under review, the Special Rapporteur took action on
behalf of more than 80 identified women, including some female minors. The
Special Rapporteur transmitted 15 urgent appeals on behalf of 26 women to the
Governments of Argentina, Belarus, Chile, Colombia, Costa Rica, Guatemala,
Honduras, Iraq and Mexico. In addition, the Special Rapporteur acted on
55 cases of violations of the right to life of women said to have occurred in
Bolivia (2), Cambodia (10), Chad (2), China (1), Colombia (7), Ecuador (1),
Guatemala (1), India (4), Indonesia and East Timor (1), the Islamic Republic
of Iran (2), Mexico (4), Myanmar (2), Nigeria (1), Papua New Guinea (6),
Peru (1), Spain (1), Sri Lanka (2), Thailand (2), Turkey (2), Venezuela (1)
and the territory under control of the Palestinian Authority (2) .
58. It should be noted that the figures mentioned above do not necessarily
show the actual number of women on whose behalf the Special Rapporteur
intervened. First, they reflect only those cases in which it was specifically
indicated that the victim was female. Second, some allegations transmitted by
the Special Rapporteur refer to groups of unidentified persons which likely
included women. It is a fact that women and children are the main victims of
armed conflict and civil unrest.
59. Most of the women on whose behalf the Special Rapporteur took action
were women who received death threats or were killed in attacks or killings by
security forces of the State or paramilitary groups. In Sri Lanka, several
women had allegedly been gang-raped before being killed. The Special
Rapporteur is particularly appalled at what seems to be deliberate targeting
E/CN. 4/1998/68
page 17
of women and children by groups of killers in Algeria. He is also distressed
by information brought to his attention according to which a pregnant woman
accused of theft was killed upon arrest by gendarmes in Chad.
B. Violations of the right to life of minors
60. During the period under review, the Special Rapporteur took action on
behalf of 53 minors. He transmitted four urgent appeals on behalf of 9 minors
to the Governments of Colombia, the Islamic Republic of Iran, Mexico and the
United States of America. The urgent appeal transmitted to Iran concerned
2 minors who had reportedly been sentenced to death for murder, while the
urgent appeal sent to the United States concerned a minor, a South African
national, who was reportedly facing the death penalty in Mississippi. The
urgent appeals sent to Colombia and Mexico concerned minors whose lives were
feared to be threatened. It should be noted that children were mainly
threatened with death because of their link to an adult.
61. The Special Rapporteur transmitted alleged cases of violations of the
right to life of minors to the Governments of Bolivia (3), Brazil (7),
Cambodia (8), Chad (1), Colombia (2), El Salvador (2), Guatemala (1),
India (3), Mexico (3), Nepal (1), Papua New Guinea (4), Sri Lanka (1),
Turkey (4), Venezuela (3) and to the Palestinian Authority (1) . These
included children who had died in custody or as a result of excessive use of
force as well as in attacks or killings committed by security forces or
paramilitary groups. Moreover, allegations of a general nature relating to
the killing of children by members of the police were transmitted to the
Government of Brazil.
62. In countries such as Algeria, the Congo, the Democratic Republic of the
Congo and Sri Lanka, children continued to be killed in the context of armed
conflict and internal strife. The Special Rapporteur is distressed that many
children were reportedly among the victims of massacres in the Democratic
Republic of the Congo. The Special Rapporteur is also appalled at what seems
to be deliberate targeting of children and women by groups of killers in
Algeria. He further notes with grave concern that in Cambodia a group of six
children aged between 2 and 8 were reportedly killed when a member of the
‘ Special Military Region Forces” launched a rocket in the direction of the
children.
C. The right to life and mass exoduses
63. During the period under review, the Special Rapporteur was informed of
large-scale human rights violations, including violations of the right to
life, which led to massive displacement of populations in Colombia, the Congo,
the Democratic Republic of the Congo and Sri Lanka. In Colombia and
Sri Lanka as well as in the Democratic Republic of the Congo it was further
reported that refugees and internally displaced persons were victims of
violations of the right to life. In addition, the Special Rapporteur was
informed of violations of the right to life of refugees from Myanmar in
Thailand. According to the source of the information, attacks by government
troops and/or members of the Democratic Karen Buddhist Army, a Karen militia
allegedly backed by the Government, on several camps of Myanmar refugees in
Thailand led to several deaths.
E/CN. 4/1998/68
page 18
64. In addition, the Special Rapporteur sent urgent appeals on behalf of
several groups of refugees who were allegedly facing forcible return to their
home countries despite the fact that their lives were reported to be at risk.
He transmitted two urgent appeals to the Government of the United Republic of
Tanzania and one to the Governments of Malawi and Panama (see para. 44) .
D. Violations of the right to life of individuals
carrying out peaceful activities in defence of
human rights and fundamental freedoms
65. During the period under review, the Special Rapporteur transmitted
urgent appeals on behalf of 31 persons carrying out peaceful activities in
defence of human rights and fundamental freedoms requesting the Governments
concerned to take the necessary measures to protect their right to life. The
action undertaken by the Special Rapporteur was on behalf of human rights
defenders threatened in the following countries: Argentina (1), Belarus (1),
Bolivia (2), Chile (3), Colombia (9), Guatemala (4), Honduras (2), India (2),
Mexico (2), Philippines (4) and Venezuela (1) .
66. In addition, the Special Rapporteur transmitted allegations of
violations of the right to life of 13 human rights defenders, including
Ghulam Rasool Sheikh killed in India, Felipe Pablo Benitez killed in Paraguay
and Mariela Lucy Barreto Riofano in Peru. The following 10 human rights
activists were reportedly killed in Colombia: Alfredo Basante, Alvaro Nelson
Suarez G6mez, Carlos Mario Calder6n, Elsa Constanza Alvarado, Gerardo Estrada
Yaspuesan, Heft G6mez Osorio, Jafeth Morales, Jorge Conde, Marco Antonio
Nasner and Margarita Guzman Restrepo.
67. The Special Rapporteur continues to be concerned at the large scale on
which threats against and violations of the right to life of human rights
defenders are occurring in various countries in the world. The Special
Rapporteur is particularly appalled at the situation in Colombia where human
rights defenders seem to be one of the target groups for extrajudicial,
summary or arbitrary executions and where measures aiming at their protection
seem ineffective.
E. Violations of the right to life of persons exercising
their right to freedom of opinion and expression
68. During the period under review, the Special Rapporteur took action on
behalf of a wide variety of persons falling within this category, including
journalists, members of political parties and trade unions, as well as
participants in demonstrations. Allegations of violations of the right to
life of 85 persons exercising their right to freedom of opinion and
expression were transmitted to the Governments of the following countries:
Argentina (1), Bolivia (10), Cambodia (12), Chad (3), China (1), Colombia (1),
India (24), Indonesia and East Timor (1), Iran (Islamic Republic of) (4),
Iraq (4), Mexico (16), Nepal (2), Pakistan (1), Spain (1), Tunisia (1),
Turkey (1), Venezuela (1) and Yemen (1).
E/CN. 4/1998/68
page 19
69. Moreover, the Special Rapporteur transmitted 17 urgent appeals on behalf
of persons exercising their right to freedom of opinion and expression to the
Governments of Argentina, Colombia, Guatemala, the Islamic Republic of Iran,
Iraq, Peru, Turkmenistan and Swaziland.
F. The right to life and the administration of justice
70. During the period under review the Special Rapporteur undertook action
on behalf of 29 persons involved in or related to the administration of
justice, including prosecutors, judges, lawyers, plaintiffs and witnesses.
The Special Rapporteur sent an alleged case of a violation of the right to
life of a lawyer to the Government of Kenya. Further, he sent urgent appeals
to the Governments of Argentina, Bolivia, Brazil, Colombia, India, the Islamic
Republic of Iran, Mexico, Peru, the Philippines and Turkey with the aim of
preventing loss of life of persons related to the administration of justice.
G. Violations of the right to life of persons belonging to
national, ethnic, religious or linguistic minorities
71. The Special Rapporteur took action on behalf of a variety of persons
belonging to national, ethnic, religious or linguistic minorities. The
Special Rapporteur sent urgent appeals on behalf of 3 indigenous persons
belonging to the Tolupan in Honduras, 140 indigenous families from the Suminao
Clan in the Philippines, 2 persons who adopted the Baha'i faith in the Islamic
Republic of Iran as well as members of the Guarani-Kaiow indigenous community
in Brazil, requesting the authorities to take the necessary measures to
protect their right to life.
72. In addition, the Special Rapporteur acted on behalf of the following
persons belonging to national, ethnic, religious or linguistic minorities
whose right to life was reportedly violated: 8 indigenous persons in
Colombia; 2 indigenous persons in Guatemala; 2 persons belonging to the
Tolupan indigenous group in Honduras; 2 indigenous persons in Mexico;
3 persons belonging to the Suminao Clan in the Philippines; 1 person belonging
to the Roma minority in Romania; several persons belonging to the Karen ethnic
minority and 1 person belonging to the Karenni ethnic minority, all having
fled from Myanmar to Thailand; 2 villagers belonging to the Shan ethnic
minority in Myanmar.
H. Violations of the right to life and terrorism
73. The Special Rapporteur notes that violent acts committed by terrorist
groups do not fall within the purview of his mandate which allows him to take
action when perpetrators are believed to have a link with the State. However,
the Special Rapporteur is aware of violence committed by armed opposition
groups resorting to terrorism as a tactic of armed struggle against
Governments. He is aware that violent acts committed by such groups have led
to the killing of many civilians in particular in Algeria and Sri Lanka, as
well as in Egypt, Israel, the territory under control of the Palestinian
Authority and Turkey.
74. Once more, the Special Rapporteur expresses his repugnance at
terrorists' acts which claim the lives of a large number of innocent
E/CN. 4/1998/68
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civilians. Although the Special Rapporteur understands the difficulties that
the concerned Governments face in fighting terrorism, he notes with concern
that in some countries Governments have adopted counter-insurgency strategies
aimed at targeting those suspected of being members, collaborators or
sympathizers of those groups, leading to further violations of the right to
life. In this context, the Special Rapporteur emphasizes once more that the
right to life is absolute and must be respected even under the most difficult
circumstances.
I. Violations of the right to life of individuals who have
cooperated with representatives of United Nations human
rights bodies (reprisals )
75. During the period under review, the Special Rapporteur sent five urgent
appeals on behalf of 13 persons who had cooperated with representatives of
United Nations human rights bodies and who had received death threats,
requesting the Government to take the necessary measures to protect their
right to life. The urgent appeals were sent on behalf of the following
persons: Firdous Asime, Director of the Institute of Kashmir Studies in
India, who attended the forty-ninth session of the Sub-Commission on
Prevention of Discrimination and Protection of Minorities in 1997;
Ghulam Muhammad Ehat, a well-known Kashmir human rights activist who attended
the 1995 session of the Sub-Commission; Gustavo Gall6n Giraldo from Colombia
who attended the fifty-third session of the Commission on Human Rights; judges
and lawyers involved in the Kuratong Baleleng case, which was transmitted by
the Special Rapporteur to the Government of the Philippines during 1996;
Bel&n Torres C rdenas and Raili Emilio Ramos of the Asociaci6n Nacional de
Usuarios Campesinos - Unidad y Reconstrucci6n who attended several meetings at
the Office of the High Commissioner for Human Rights in Geneva.
V. ISSUES OF SPECIAL CONCERN TO THE SPECIAL RAPPORTEUR
A. Capital punishment
76. The Special Rapporteur notes that the death penalty is an exception to
the fundamental right to life and, as an exception, it must be interpreted
restrictively. The Special Rapporteur believes that because of the
irreparability of the loss of life, the imposition of a capital sentence
must fully respect all restrictions imposed by the pertinent international
instruments on this matter. In addition, the application of these
restrictions must be guaranteed in each and every case. The Special
Rapporteur undertakes action in cases of capital punishment in which
international restrictions, which are analysed in the following paragraphs,
are not respected. In such cases, the carrying out of a death sentence may
constitute a form of summary or arbitrary execution.
77. As in previous years, the Special Rapporteur's action in response to
allegations of violations of the right to life in connection with capital
punishment continued to be guided by three main principles: the desirability
of the abolition of the death penalty; the need to ensure the highest possible
standards of independence, competence, objectivity and impartiality of judges
and full respect of guarantees for a fair trial; and the observance of special
restrictions on the application of the death penalty.
E/CN. 4/1998/68
page 21
1. Desirability of the abolition of the death penalty
78. Although capital punishment is not yet prohibited under international
law, the desirability of its abolition has been strongly reaffirmed on various
occasions by United Nations organs and bodies in the field of human rights.
In addition to those listed in his previous report (E/CN.4/1997/60,
para. 75 (a)-(e)), the Special Rapporteur notes the adoption of Commission on
Human Rights resolution 1997/12 of 3 April 1997 on the question of the death
penalty. For the first time, the Commission on Human Rights adopted a
resolution on capital punishment in which it called upon all States ‘ that have
not yet abolished the death penalty progressively to restrict the number of
offences for which the death penalty may be imposed”. It further called on
States to consider suspending executions, with a view to abolishing the death
penalty.
79. The Special Rapporteur also recalls that, on a regional level, new
members of the Council of Europe are required to sign within one year, and
ratify within three years of joining the organization, the Optional Protocol
No. 6 to the European Convention, aimed at abolishing the death penalty, and
are also required to place an immediate moratorium on executions.
80. The Special Rapporteur regrets that several countries which, despite
legislation allowing for capital punishment, had not carried out death
sentences in many years resumed executions during 1997. He was informed
that in February 1997, Zambia carried out the first execution since 1989.
According to the information received eight men were secretly executed at
Mukobeko maximum security prison. Burundi was also said to have carried out
its first executions since 1981, hanging six men in the grounds of the prison
in Bujumbura.
81. Given that the loss of life is irreparable, the Special Rapporteur
strongly supports the conclusions of the Human Rights Committee in its
comments on article 6 of the International Covenant on Civil and Political
Rights (see HRI/GEN/1/Rev.2 of 29 March 1966) and emphasizes that the
abolition of capital punishment is most desirable in order to fully
respect the right to life. In this context, he welcomes the fact that, on
3 July 1997, the President of Poland signed into law a new Penal Code
abolishing the death penalty for all crimes.
2. Fair trial
82. In monitoring the application of existing standards relating to the
death penalty, as he has been requested by the Commission on Human Rights
since 1993, the Special Rapporteur has directed his attention in particular to
trial procedures leading to the imposition of capital punishment. All
safeguards and due process guarantees, both at pre-trial stages and during the
actual trial, must be fully respected in every case, as provided for by
several international instruments.
83. The Special Rapporteur wishes to reiterate that proceedings leading to
the imposition of capital punishment must conform to the highest standards of
independence, competence, objectivity and impartiality of judges and juries,
in accordance with the pertinent international legal instruments. All
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page 22
defendants facing the imposition of capital punishment must benefit from the
services of a competent defence counsel at every stage of the proceedings.
Defendants must be presumed innocent until their guilt has been proved beyond
a reasonable doubt, in strict application of the highest standards for the
gathering and assessment of evidence. In addition, all mitigating factors
must be taken into account. In this context, the Special Rapporteur wishes to
express once again his concern about the existence of laws, particularly those
relating to drugs offences in countries such as Malaysia and Singapore, where
the presumption of innocence is not fully guaranteed, as the burden of proof
lies partially on the accused. Moreover, these laws, owing to their strict
formulation, do not leave any discretion to the judge to personalize the
sentence or to take into account mitigating circumstances, giving them no
other option than the mandatory imposition of the death penalty once the
conclusion is reached that the defendant is guilty.
84. The Special Rapporteur shares the view of the Human Rights Committee and
believes that imposing a sentence of death upon the conclusion of a trial in
which the basic fair trial standards, as provided for in article 14 of the
International Covenant on Civil and Political Rights, were not ensured,
constitutes a violation of the right to life, should the execution be carried
out.
85. During the period under review, Egypt, India, Iraq, the Islamic Republic
of Iran, Jordan, Kazakhstan, Rwanda, Ukraine, the United States of America and
Yemen as well as the Palestinian Authority were reported to have imposed death
sentences after proceedings in which the defendants did not fully benefit from
the rights and guarantees for a fair trial contained in the pertinent
international instruments. The Special Rapporteur is of the opinion that even
in those cases where the law in force in a country is in accordance with fair
trial standards as contained in international instruments, the application of
these standards in each death penalty case has to be ensured. Particularly
disturbing reports were received relating to the imposition and execution of
death sentences in that part of Afghanistan under the de facto control of the
Taliban movement. According to the information received, persons were
sentenced to death by Islamic courts set up by the Taliban authorities which
were reportedly composed of judges many of whom were virtually untrained in
law. It was reported that such courts often decided many cases a day in
sessions which might have taken only a few minutes. It was further reported
that death penalties were sometimes imposed and executed on the orders of
Taliban commanders or Taliban prison guards.
86. Furthermore, proceedings must guarantee the right of review of both
the factual and legal aspects of the case by a higher tribunal, composed of
judges other than those who dealt with the case at first instance. The
defendant's right to seek pardon, commutation of the sentence or clemency
must also be guaranteed. In this context, the Special Rapporteur was
informed that in Georgia in several cases, including those of Irakli Dokvadze,
Petre Gelbakhiani and Badri Zarandia, death sentences were passed by the
Supreme Court of Georgia acting as a court of first instance with the official
verdict said to record that the sentence was final and not subject to appeal.
Moreover, the Special Rapporteur took action on behalf of persons facing
E/CN. 4/1998/68
page 23
execution and whose right to appeal and/or to seek pardon or commutation of
the sentence was not respected in the Bahamas, the Democratic Republic of
the Congo and Turkmenistan.
87. A preoccupying issue that continues to be brought to the Special
Rapporteur's attention concerns decisions by defendants who have been
sentenced to death not to appeal to a higher jurisdiction or to request
clemency or pardon, and to accept the imposition of the death penalty. In
this context, the Special Rapporteur strongly shares the view expressed by the
Economic and Social Council in its resolution 1989/64 of 24 May 1989 entitled
‘ Implementation of the safeguards guaranteeing protection of the rights of
those facing the death penalty”, in which the Council recommended that Member
States provide for mandatory appeals or review with provisions for clemency or
pardon in all cases of capital offence. The Special Rapporteur transmitted
one urgent appeal on behalf of a person who had chosen to abandon his appeals
in the United States.
88. The Special Rapporteur also remains concerned about the imposition of
the death penalty by special jurisdictions. These jurisdictions are often set
up as a response to acts of violence committed by armed opposition groups or
in situations of civil unrest, in order to speed up proceedings leading to
capital punishment. Such special courts often lack independence, since
sometimes the judges are accountable to the executive, or are military
officers on active duty. Time limits, which are sometimes set for the
conclusion of the different trial stages before such special jurisdictions,
gravely affect the defendant's right to an adequate defence. Limitations
on the right to appeal are also of concern in the context of special
jurisdictions. The Special Rapporteur was further informed that in Pakistan,
death sentences imposed in trials before special courts for the suppression of
terrorist activities reportedly fall short of international standards of fair
trial insofar as they do not proceed from the presumption of innocence.
89. The Special Rapporteur is also concerned about the situation of
foreigners being sentenced to death. He was informed that in the
United States of America, more than 60 foreign nationals have been
sentenced to death without having been informed of their right under the
Vienna Convention to receive assistance from their consulate. He was also
informed that in 1997, more than 70 foreign nationals have been executed in
Saudi Arabia.
90. The Special Rapporteur recalls that in previous reports to the
Commission on Human Rights and the General Assembly he referred to the 1993
judgement of the Privy Council of the United Kingdom of Great Britain and
Northern Ireland, the supreme judicial instance for the member States of the
Commonwealth, in which it was held that awaiting the execution of a death
sentence for five years after it had been handed down constituted in itself
cruel and inhuman punishment. Shortly before the finalization of this report,
the Special Rapporteur was informed that, in October 1996, the Privy Council
ruled that, in the Bahamas, it may be considered cruel or inhuman to execute a
prisoner who has been on death row for more than three and a half years.
According to the information received, the Privy Council was of the view that
the five-year ruling was not to be regarded as a fixed limit applicable in all
cases, but as a norm which may be departed from if circumstances so require.
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In this regard, the Special Rapporteur has expressed concern, on several
occasions, that such decisions might encourage Governments to carry out death
sentences more speedily, which, in turn, might affect the defendants' rights
to full appeal procedures. In this sense, he wishes to reiterate that this
judgement should be interpreted in the light of the desirability of the
abolition of the death penalty. To solve the problem of the anguish of
awaiting execution on death row by executing the person faster is simply
unacceptable.
3. Restrictions on the use of the death penalty
91. As noted in his previous report (E/CN.4/1997/60, para. 88), capital
punishment is prohibited for juvenile offenders under international law.
During 1997, the Special Rapporteur transmitted an urgent appeal on behalf of
a juvenile, a South African national, who was reportedly facing a death
sentence in the United States of America. The Special Rapporteur was
subsequently informed by the Government that he was no longer facing capital
punishment. In addition, the Special Rapporteur took action on behalf of two
minors sentenced to death in the Islamic Republic of Iran. The Special
Rapporteur was also informed that a 17-year-old was reportedly executed in
Owerri, Imo State, south-east Nigeria, in July 1997. Reportedly, he was 15 at
the time he committed the crime.
92. In this respect, the Special Rapporteur wishes to express his utmost
concern about information according to which, since 1990, the Islamic Republic
of Iran, Nigeria, Pakistan, Saudi Arabia, the United States of America and
Yemen have executed prisoners who were under 18 years of age at the time of
the crime. In this context, reports were received relating to the approval of
a draft bill in Pakistan, the Child Offenders Bill, which maintains capital
punishment for minors as of the age of 16.
93. The Special Rapporteur also took action on behalf of two mentally
retarded persons on whom capital punishment was imposed in the United States.
The Safeguards guaranteeing protection of the rights of those facing the death
penalty stipulate that the death penalty shall not be carried out on persons
who have become insane. In addition, in paragraph 1 (d) resolution 1989/64,
the Economic and Social Council recommended that States further strengthen the
protection of the rights of those facing the death penalty by eliminating the
death penalty for persons suffering from mental retardation or extremely
limited mental competence, whether at the stage of sentence or execution.
94. It is worth emphasizing again that article 6, paragraph 2, of the
International Covenant on Civil and Political Rights provides that, ‘tin
countries which have not abolished the death penalty, sentence of death may be
imposed only for the most serious crimes” and that in its comments on
article 6, paragraph 91, the Human Rights Committee stated that the expression
‘ most serious crimes” must be read restrictively to mean that the death
penalty should be a quite exceptional measure. In addition, paragraph 1 of
the Safeguards guaranteeing protection of the rights of those facing the death
penalty, states that the scope of crimes subject to the death penalty should
not go beyond intentional crimes with lethal or other extremely grave
consequences. The Special Rapporteur concludes from this, that the death
penalty should be eliminated for crimes such as economic crimes and
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drug-related offences. In this regard, the Special Rapporteur wishes to
express his concern at reports he received concerning the imposition of the
death penalty for economic and/or drug-related offences in China, the
Democratic Republic of the Congo, the Islamic Republic of Iran, Malaysia,
Singapore and Viet Nam. The Special Rapporteur's attention was further drawn
to reports relating to the situation in Yemen where many of the offences
punishable by death are reportedly vaguely worded and could easily be misused
to convict persons carrying out activities which amount to no more than the
peaceful expression of their conscientiously held beliefs, including their
political opinion.
B. Impunity
95. States have an obligation to conduct exhaustive and impartial
investigations into allegations of violations of the right to life, to
identify and bring to justice the perpetrators, to grant adequate compensation
to the victims or their families and to take effective measures to avoid the
recurrence of such violations. ‘
96. The Special Rapporteur reiterates that impunity remains the principal
cause for the perpetuation of violations of human rights and particularly
those of the right to life. The manner in which a Government reacts to human
rights violations committed by its agents, through action or omission, clearly
shows the degree of its willingness to ensure effective protection of human
rights. Very often, statements and declarations in which Governments proclaim
their commitment to respect human rights are contradicted by a practice of
violations and impunity. The Special Rapporteur considers that even if in
exceptional cases Governments may decide that perpetrators should benefit from
measures that would exempt them from or limit the extent of their punishment,
the obligation of Governments to bring them to justice and hold them formally
accountable stands. 2
97. Impunity has further been encouraged by problems related to the
functioning of the judiciary, in particular its lack of independence and
impartiality. In some countries there is no independent judiciary that could
conduct investigations into violations of the right to life, while in others
the justice system does not function in practice. Where the justice system
does not function properly it is desirable that reforms be implemented to
enable the judiciary to fulfil its functions effectively. In some cases,
which warrant particular treatment because of their special nature or gravity,
Governments may envisage establishing special commissions of inquiry, which
must fulfil the same requirements of independence, impartiality and competence
as judges in ordinary courts. The results of their investigations should be
made public and their recommendations binding on the authorities. The Special
Rapporteur is concerned that in some cases recommendations made by such
commissions are not followed in practice, or do not fulfil the above-mentioned
requirements and become tools to evade the obligation to undertake thorough,
prompt and impartial investigations into violations of the right to life. The
Special Rapporteur also remains concerned about the prosecution of members of
the security forces before military courts, where they may evade punishment
because of an ill-conceived esprit de corps .
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98. During the period under review, the Special Rapporteur continued to
receive information relating to impunity. With regard to the situation in
Guatemala, it was brought to the Special Rapporteur's attention that security
forces continued to interfere in the justice system, affecting its
independence and contributing to impunity. According to the information
received, the population has no confidence in the justice system, many
violations of the right to life which occurred in 1996 not having been
investigated and perpetrators not been brought to justice.
99. With regard to the situation in Colombia, the Special Rapporteur's
attention was again drawn to reports relating to the impunity enjoyed by
paramilitary groups which continued to commit systematic violations of the
right to life with the acquiescence of members of the armed forces.
100. It was further brought to the Special Rapporteur's attention, that on
the Papua New Guinean island of Bougainville a culture of impunity, created by
poor discipline and a weak chain of command in the armed forces combined with
an unwillingness to hold individuals responsible for their deeds, contributed
to a continuation of killings on the island. The source of the information
was reportedly aware of the thorough investigation of only one alleged
violation of the right to life committed since 1989 and of no persons
prosecuted for violations of the right to life.
101. The Special Rapporteur is distressed that impunity prevailing in the
Democratic Republic of the Congo, especially in Kivu, and in the Great Lakes
region as a whole has resulted in further cycles of violence.
C. Cooperation with the United Nations High Commissioner
for Human Rights and with other United Nations bodies
102. The Special Rapporteur continues to accord great importance to
cooperation with other United Nations bodies dealing with issues related to
his mandate. This cooperation has taken the form of consultations, either on
questions concerning the day-to-day operation of his mandate, or in the
preparation of, and during, on-site visits. Thus, pursuant to
resolution 1997/58 of the Commission on Human Rights, the Special Rapporteur
participated, together with the Special Rapporteur on the situation of human
rights in Zaire and a member of the Working Group on Enforced or Involuntary
Disappearances, in a mission charged with investigating allegations of
massacres and other human rights violations occurring in eastern Zaire (now
the Democratic Republic of the Congo) since September 1996. The team, which
did not receive authorization to enter eastern Zaire, as noted in paragraph 19
above, presented reports to the General Assembly in this regard.
103. Cooperation with other Special Rapporteurs, particularly with the
Special Rapporteur on the independence of judges and lawyers, the Special
Rapporteur on the question of torture and country-specific rapporteurs,
continued during 1997 in the form of joint urgent appeals. Further, the
annual meeting of special rapporteurs, representatives, experts and
chairpersons of working groups of the Commission on Human Rights, which was
held in Geneva from 21 to 23 May 1997, was another opportunity for the various
mechanisms of the Commission to discuss matters of common interest and
concern.
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104. During 1997, coordination with different United Nations procedures was
strengthened. Information was exchanged with the Human Rights Committee and
the Committee on the Rights of the Child on issues relating to the right to
life. Contacts with United Nations field offices, including offices of the
High Commissioner for Human Rights, have continued. During field missions,
the Special Rapporteur cooperated in particular with the United Nations
Development Programme, the Office of the United Nations High Commissioner for
Refugees and United Nations information centres.
105. One of the aspects which the Special Rapporteur considers of utmost
importance is his cooperation with the High Commissioner for Human Rights.
The Commission on Human Rights, in its resolution 1997/61, urged the Special
Rapporteur to draw to the attention of the High Commissioner such situations
of extrajudicial, summary or arbitrary executions as were of particularly
serious concern to him or where early action might prevent further
deterioration.
106. Thus, on 9 July 1997, the Special Rapporteur transmitted a letter to
Mr. Ralph Zacklin, officer in charge of the Office of the High Commissioner
for Human Rights, expressing concern at the situation in the Congo,
particularly since clashes between the militias of President Pascal Lissouba
and former President Denis Sassou Nguesso were said to have caused a great
number of victims.
107. Further, by letter dated 25 July 1997, the Special Rapporteur brought to
the attention of the officer in charge of the Office of the High Commissioner
for Human Rights information which he had received, according to which some
300 soldiers of the Alliance des Forces D&mocratiques pour la Lib&ration du
Congo-Zaire (AFDL) were deployed in Shabunda, South-Kivu, Democratic Republic
of the Congo, to protect and ensure the repatriation of refugees to Rwanda.
Fears had been expressed for the life and physical integrity of those
refugees, who had been fleeing attacks by the AFDL since October 1996. The
Special Rapporteur also informed Mr. Zacklin that he and the Special
Rapporteur on the situation of human rights in the Democratic Republic of the
Congo, had transmitted a letter to the United Nations High Commissioner for
Refugees requesting her to take the necessary preventive measures to protect
the life of these refugees. By letter dated 28 July 1997, Mr. Zacklin
informed the Special Rapporteur that he would undertake all the necessary
efforts in his contacts with the Government of the Democratic Republic of the
Congo to transmit the Special Rapporteurs' concern.
108. IJNHCR replied to the Special Rapporteurs' letter, confirming that the
arrival of the soldiers had caused fear amongst the refugees in the Shabunda
transit centre and in Katshungu and had prompted half of the residents of the
transit centre to return to the forest in the days following the deployment.
However, since the arrival of the soldiers, UNHCR, which maintained a presence
in Shabunda, had not received reports of any harassment of the refugees by the
soldiers. IJNHCR informed the Special Rapporteurs that they would maintain a
policy of continued vigilance in the Shabunda region and follow the
developments.
109. The Special Rapporteur considers that coordination with the High
Commissioner for Human Rights should be strengthened with regard to field
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visits. He believes that special rapporteurs should be consulted before field
offices of the High Commissioner for Human Rights are set up in countries of
common concern. Such field offices, which are aimed at strengthening human
rights mechanisms, should therefore include in their mandates the servicing of
special rapporteurs. The Special Rapporteur also thinks that guidelines
should be developed for the cooperation between mechanisms of the Commission
on Human Rights and field offices, as well as for follow-up by the High
Commissioner for Human Rights on special rapporteurs' recommendations.
VI. CONCLUDING REMARKS AND RECOMMENDATIONS
110. As in previous years, the Special Rapporteur is compelled to conclude
that there is no indication that extrajudicial, summary or arbitrary
executions have decreased. During the past year, the Special Rapporteur
transmitted more than 960 alleged cases of violations of the right to life as
well as 122 urgent appeals on behalf of 3,720 persons, in addition to
allegations concerning groups of persons for which no number of individuals
was known.
111. One of the most prevalent targets of extrajudicial, summary or arbitrary
executions has continued to be persons involved in struggles such as those to
prevent or combat racial, ethnic or religious discrimination, and to ensure
respect for economic, social, cultural, civil and political rights, including
rights to ancestral lands. In situations of internal armed conflict, up to
90 per cent of the victims were reported to be civilians, many of them women
and children. Furthermore, United Nations personnel, humanitarian workers,
journalists, members of political parties and trade unions, participants in
demonstrations, displaced persons and persons belonging to minorities have
been deliberately killed.
112. The Special Rapporteur is committed to correctly portray the situation
of the right to life in all its manifestations falling within his mandate.
The Special Rapporteur recognizes that over the years a growing awareness of
his mandate has led to an increase in the information, albeit regionally
unbalanced, brought to his attention. In particular, he regrets that very
little information has been brought to his attention regarding the situation
in many countries in Africa. At the same time, for some countries, and in
particular Colombia, the amount of information regarding alleged violations of
the right to life is so overwhelming that he thinks it is no longer possible
to handle it in a meaningful manner through the transmission of individual
cases and their follow-up.
113. The Special Rapporteur is constrained to conclude that, with the
resources at his disposal, the effectiveness of his mandate is hampered and
that his methods of work need to be adapted to bring them into line with
scarce resources. The Special Rapporteur already decided to consider during
the past reporting year only those alleged cases of extrajudicial, summary or
arbitrary executions which occurred in 1995, 1996 and 1997. The failure of
many Governments to provide him with a reply by responding to the questions
posed in the letters accompanying the allegations further complicated the
Special Rapporteur's task. In addition, and despite the fact that the Special
Rapporteur sent some follow-up communications during the past year, he
recognizes that in the absence of a database system and with thousands of
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cases having accumulated over the past years, it has become impossible to
consistently follow up alleged cases of violations of the right to life.
114. The Special Rapporteur notes with regret that some Governments have
failed to cooperate with him. While some Governments have not responded to
any of his communications over the past year or have provided replies without
responding to the questions posed in his letters, others have refused to
respond to further questions posed in follow-up communications. His dialogue
with the Governments of Turkey, China and India over the past years have not
resulted, as hoped, in invitations to visit their countries. Moreover,
recommendations contained in reports on field visits have failed to become the
starting point for a constant exchange of views with the Governments on how to
improve further the respect for the right to life.
115. The Special Rapporteur is convinced that extrajudicial, summary or
arbitrary executions can be prevented only if there is a genuine will on the
part of Governments and the international community not only to enforce the
safeguards and guarantees for the protection of the right to life of every
person under its jurisdiction, but also to strengthen them further. The
Special Rapporteur notes with regret that trends in an opposite direction seem
to be emerging. Declarations of commitment to protection of the right to life
are only effective if they are translated into practice. If the aim is the
protection of the right to life, the emphasis must be on the prevention of
violations of this supreme right and the rejection of impunity.
Recommendations
116. The international community should concentrate its efforts on the
effective prevention of further human rights crises, including genocide, the
methods of work of the Special Rapporteur, and on the implementation of
existing standards for the respect for the right to life. Human rights issues
cannot be considered as internal affairs, and the international community has
a duty to remind States that do not respect international human rights
standards of their obligations under international law. The international
community should assist in the establishment of a coherent multifaceted system
of prevention of conflicts that would embody a rapid intervention component to
prevent the degeneration of situations where the threat of massive human
rights violations exists. Such a system would not only involve the
participation of United Nations organs and bodies but would also require the
concerted efforts and full cooperation of all Governments as well as
non-governmental organizations.
1. Capital punishment
117. States that have not ratified the International Covenant on Civil and
Political Rights and, in particular, its Second Optional Protocol, are
encouraged to do so. All States should bring domestic legislation in
conformity with international standards. States that enforce their capital
punishment legislation should observe all fair trial standards contained in
the relevant international legal instruments, in particular in the
International Covenant on Civil and Political Rights. In addition,
Governments that continue to enforce such legislation with respect to minors
and the mentally ill are particularly called upon to bring their domestic
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legislation into conformity with international legal standards. States should
consider the adoption of special laws to protect the mentally retarded,
incorporating existing international standards.
118. States should provide in their national legislation a period of at least
six months so as to allow a reasonable amount of time for the preparation of
appeals to courts of higher jurisdiction and petition for clemency before a
death sentence is executed. Such a measure would prevent hasty executions
while affording defendants the opportunity to exercise all their rights.
Officials responsible for carrying out an execution order should be fully
informed of the state of appeals and petitions for clemency of the prisoner in
question, and should not proceed to an execution if an appeal or other
recourse procedure is still pending. Appeals for clemency should provide
effective opportunities to safeguard lives.
119. Governments of countries in which the death penalty is still enforced
are urged to deploy every effort that could lead to the restriction of its use
with the aim of its abolition, the desirability of which has been affirmed by
the General Assembly repeatedly as well as by the Commission on Human Rights
in its resolution 1997/12. In accordance with the latter, Governments should
consider the imposition of a moratorium on executions.
2. Death threats
120. State authorities should conduct investigations with respect to all
instances of death threats or attempts against lives that are brought to their
attention, regardless of whether a judicial or other procedure has been
activated by the potential victim. Governments should adopt effective
measures to ensure full protection of those who are at risk of extrajudicial,
summary or arbitrary execution.
121. In circumstances where certain State authorities or sectors of the civil
society perceive political dissent, social protest or the defence of human
rights as a threat to their authority, the central government authorities
should take action to create a climate more favourable to the exercise of
those rights and thus reduce the risk of violations of the right to life. The
Special Rapporteur encourages Governments to recognize publicly the legitimacy
of and contribution made by human rights defenders.
3. Deaths in custody
122. All Governments should ensure that conditions of detention in their
countries conform to the Standard Minimum Rules for the Treatment of Prisoners
and other pertinent international instruments. Governments should also deploy
efforts to ensure full respect for international norms and principles
prohibiting any form of cruel, inhuman or degrading treatment.
123. Prison guards and other law enforcement personnel should receive
training on the observance of the aforementioned norms in performing their
duties. State agents should take into consideration the right to life of
prisoners, especially in the course of controlling prison disturbances and
preventing prison escapes. All deaths in custody should be investigated by a
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body that is independent from the police or prison authorities. Governments
could consider measures such as the obligatory videotaping of post mortem
examinations or the taking of pictures of corpses.
124. Because of the magnitude of the problem, the Special Rapporteur requests
the Commission on Human Rights to consider appointing a Special Rapporteur on
conditions of detention and prison conditions, following the example set by
the African Commission on Human and Peoples' Rights, which has recently
nominated such a rapporteur. In addition, he requests the Commission on Human
Rights to call for the rapid adoption of an optional protocol to the
Convention against Torture with a view to establishing a system of periodic
visits to places of detention.
4. Excessive use of force by law enforcement officials
125. All Governments should ensure that their security personnel receive
thorough training in human rights issues, particularly with regard to
restrictions on the use of force and firearms in the discharge of their
duties. Such training should include, for instance, the teaching of methods
of crowd control without resorting to lethal force. Every effort should be
made by States to combat impunity in this field and to provide adequate
compensation to victims' families.
5. Violations of the right to life during armed conflict
126. All States that have not yet done so are encouraged to ratify the four
Geneva Conventions of 1949 and their two Additional protocols. The training
of members of the armed forces and other security forces should include
substantive instruction on the content of these instruments in addition to
those dealing with human rights.
127. Governments of countries in which terrorist groups are active should
ensure that counter-insurgency operations are conducted in conformity with
human rights standards so as to minimize the loss of lives.
6. Imminent expulsion of persons to countries where
their lives are in danger
128. Governments that have not yet ratified the Convention and the Protocol
Relating to the Status of Refugees are called upon to do so. All Governments
should at all times refrain from expelling a person in circumstances where
respect for his or her right to life is not fully guaranteed. Refoulement of
refugees or of internally displaced persons to countries or areas where
respect for their right to life is not fully guaranteed, as well as the
closure of borders preventing the escape of persons trying to flee a country,
should at all times be prohibited. Whenever a country is faced with a massive
influx of refugees the international community should provide necessary
assistance.
7. Genocide
129. All Governments are encouraged to ratify the Convention on the
Prevention and Punishment of the Crime of Genocide. The Special Rapporteur
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calls on States to pay due attention to the stipulations in the Convention
concerning the prevention of genocide. Concerned States, assisted by the
international community, should take all necessary measures to prevent acts
of communal violence from degenerating into large-scale killings that may
reach the dimension of genocide. States in which acts of communal violence
occur should do their utmost to curb such conflicts at an early stage, and to
work towards reconciliation and peaceful coexistence of all segments of the
population, regardless of ethnic origin, religion, language or any other
distinction. Governments should at all times refrain from any propaganda or
incitement to hatred and intolerance that might foment acts of communal
violence or condone such acts and bring to justice perpetrators of such acts.
130. The Special Rapporteur pursuant to article VIII of the Convention on the
Prevention and Punishment of the Crime of Genocide, encourages the State
parties to the Convention to call upon the competent organs of the
United Nations to take action in order to prevent and suppress acts of
genocide.
131. The Special Rapporteur believes that a monitoring mechanism to supervise
the implementation of the Convention on the Prevention and Punishment of the
Crime of Genocide should be established.
132. The Special Rapporteur urges the international community and all
concerned States to cooperate fully with the International Criminal Tribunal
for the Former Yugoslavia and the International Tribunal for Rwanda,
particularly by arresting and handing over suspects, so as to bring to justice
as soon as possible those accused of the crime of genocide.
8. Acts of omission
133. Governments should adopt the necessary preventive and protective
measures to ensure full enjoyment of the right to life to persons under their
jurisdiction. Such measures could include requests for international
assistance if Governments feel themselves unable to fulfil this obligation.
134. Governments should fight impunity for common crimes and bring to justice
persons committing murder in the name of so-called popular justice.
Governments should at no time allow acts of incitement to revenge that might
lead to killings.
9. Impunity
135. All States should conduct exhaustive and impartial investigations into
allegations of violations of the right to life, in all its manifestations, and
identify those responsible. They should also prosecute the alleged
perpetrators of such acts, while taking effective measures to avoid the
recurrence of such violations. In accordance with principle 19 of the
Principles on the Effective Prevention and Investigation of Extra-legal,
Arbitrary and Summary Executions, blanket amnesty laws prohibiting the
prosecution of alleged perpetrators and violating the rights of victims should
not be endorsed.
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136. The Special Rapporteur believes that the following measures could be
taken to combat the problem of impunity: (a) establishment of a permanent
international criminal court, with universal jurisdiction over mass violations
of human rights and humanitarian law; such an international criminal court
would have to be bestowed with an adequate mandate and sufficient means to
enable it to conduct thorough investigations and enforce the implementation of
its decisions; and (b) adoption of a convention, similar to the Convention
against Torture, which would provide domestic courts with international
jurisdiction over persons suspected of having committed mass violations of the
right to life; such a convention should also contain provisions for the
allocation of compensation to victims' families.
137. The Special Rapporteur welcomes the developments and discussions on the
draft code on crimes against the peace and security of mankind and the draft
statute on the establishment of an international criminal court and reiterates
his call to the General Assembly to adopt them as soon as possible.
10. Rights of victims
138. All States should include in their national legislation provisions that
allow for adequate compensation and facilitate access to judicial remedies to
families of the victims of violations of the right to life in accordance with
the Principles on the Effective Prevention and Investigation of Extra-legal,
Arbitrary and Summary Executions, recommended by Economic and Social Council
resolution 1989/65 of 24 May 1989. States should endorse the principles set
out in the Declaration of Basic Principles of Justice for Victims of Crime and
Abuse of Power, adopted by the General Assembly in its resolution 40/34 of
29 November 1985, and incorporate them in their national legislation.
Compassion, respect and justice being the rationales for victims' rights,
victims have no right to retaliation, nor should the duty of the State to
provide justice be privatized.
Notes
1.See the Principles on the Effective Prevention and Investigation of Extra-
legal, Arbitrary and Summary Executions, recommended by the Economic and
Social Council in resolution 1989/65, as well as the Basic Principles on the
Use of Force and Firearms by Law Enforcement Officials. Also, the Human
Rights Committee has stated, both in its General Comments on article 6 of the
International Covenant on Civil and Political Rights and in a number of
decisions, that States parties are required to investigate all human rights
violations, particularly those affecting the physical integrity of the victim;
to bring to justice those responsible; to pay adequate compensation to the
victims or their families; and to prevent the recurrence of such violations.
2.See paragraph 19 of the Principles on the Effective Prevention and
Investigation of Extra-legal, Arbitrary and Summary Executions, which states,
in part, that In no circumstances ... shall blanket immunity from prosecution
be granted to any person allegedly involved in extra-legal, summary or
arbitrary executions” .
