Aadel Collection
Report of the Special Rapporteur, Ms. Asma Jahangir, submitted pursuant to Commission on Human Rights resolution 1998/68
UNITED
NATIONS [
Economic and Social .
Distr.
Council
GENERAL
E/CN. 4/1999/3 9
6 January 1999
Original: ENGLISH
COMMISSION ON HUMAN RIGHTS
Fifty-fifth session
Item 11 (b) of the provisional agenda
CIVIL AND POLITICAL RIGHTS, INCLUDING QUESTIONS OF:
DISAPPEARANCES AND SUMMARY EXECUTIONS
Extrajudicial, summary or arbitrary executions
Report of the Special Rapporteur, Ms. Asma Jahangir, submitted
pursuant to Commission on Human Rights resolution 1998/68
CONTENTS
Paragraphs Page
Introduction
I. THE MANDATE
A. Terms of reference
B. Violations of the right to life upon which
the Special Rapporteur takes action . . . .
C. Legal framework and methods of work . . . .
II. ACTIVITIES
A. General remarks
B. Communications
1-3 4
4- 7 4
4-5 4
6 5
7 6
8 - 15 6
8 - 10 6
11 - 15 7
GE.99-10019 (E)
E/CN.4/1999/39
page 2
CONTENTS ( continued )
OF THE RIGHT TO
Capital punishment
Death threats
Deaths in custody
Deaths due to excessive use of force by law
enforcement officials
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
Genocide
Deaths due to acts of omission
Impunity
Rights of victims
SUES REQUIRING THE SPECIAL RAPPORTEIJR'S ATTENTION
Violations of the right to life of women . . .
Violations of the right to life of minors . .
Violations of the right to life concerning
refugees and internally displaced persons . .
D. Violations of the right to life of individuals
carrying out peaceful activities in defence of
human rights and fundamental freedoms . . . .
E. Violations of the right to life of persons
exercising their right to freedom of opinion
and expression
III. SITUATIONS INVOLVING VIOLATIONS
LIFE
A.
B.
C.
D.
Paragraphs Page
16 - 33 8
16 - 17 8
18 - 19 9
20 - 21 10
22 - 23 10
24 - 26 11
27 12
28 12
29 - 30 12
31 13
32 13
33 13
34 - 49 14
34 - 35 14
36 - 38 14
39 15
40 - 42 15
H.
I.
(3.
K.
IV. IS
A.
B.
C.
43 - 44 16
E/CN. 4/1999/39
page 3
CONTENTS ( continued)
Paragraphs Page
F. The right to life and the administration of
justice 45 16
G. Violations of the right to life of persons
belonging to national, ethnic, religious
or linguistic minorities 46 16
H. Violations of the right to life and non-State
actors 47 - 48 17
I. Violations of the right to life of individuals
who have cooperated with representatives of
United Nations human rights bodies (reprisals) 49 17
V. ISSUES OF SPECIAL CONCERN TO THE SPECIAL RAPPORTEUR 50 - 77 18
A. Capital punishment 50 - 64 18
B. Impunity . . . . . 65 - 70 22
C. Child soldiers . . 71 - 73 24
D. Traditional practices and customs affecting
the right to life 74 - 75 25
E. The right to life and sexual orientation . . . 76 - 77 26
VI. CONCLUDING REMARKS AND RECOMMENDATIONS 78 - 97 26
E/CN.4/1999/39
page 4
I n t r o du c t ion
1. This report is submitted pursuant to Commission on Human Rights
resolution 1998/68 of 21 April 1998 entitled ‘ Extrajudicial, summary or
arbitrary executions”. It is the first report submitted to the Commission by
Ms. Asma Jahangir and the sixteenth 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. It will be recalled that
Mr. Bacre Waly Ndiaye resigned from his duties as Special Rapporteur on
extrajudicial, summary or arbitrary executions on 30 May 1998. By a letter
of 12 August 1998 the Chairman of the Commission on Human Rights informed
Ms. Jahangir of his decision to appoint her as Special Rapporteur on
extrajudicial, summary or arbitrary executions. On 26 August 1998
Ms. Jahangir formally accepted her appointment by a letter to the Chairman.
2. For reasons of continuity the present report covers communications sent
and received by both the previous and present Special Rapporteur in the period
from 1 November 1997 to 31 October 1998. As a close reading of this document
will reveal, the number of communications processed in the last year is
considerably lower than in previous years. This is mainly due to the
transition of the mandate from one Special Rapporteur to another, and should
not be taken as an indication of any significant changes as regards the
occurrence and seriousness of extrajudicial, summary or arbitrary executions.
In an addendum to the present report, the Special Rapporteur describes
62 country situations, which include in summary form the information
transmitted and received by the Special Rapporteur, including communications
received from Governments, as well as the Special Rapporteur's observations
where considered appropriate.
3. The Special Rapporteur wishes to emphasize 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. The
Special Rapporteur wishes to point out that the present report was drafted
under strict deadlines only two months after her appointment, which has
limited her opportunity to fully explore the mandate entrusted to her. As
most of the material and events covered by this report refer to the period
prior to her appointment, the Special Rapporteur has in the drafting of this
report chosen to follow the outline and methods developed and applied by her
predecessor. The Special Rapporteur would further like to take the
opportunity of her first report to the Commission to discuss ways in which she
hopes her mandate might be developed and to point to specific issues that she
intends to focus on in the future, as they may represent emerging trends
which, unless properly addressed, may become widespread or gain legitimacy
through continued practice.
I. THE MANDATE
A. Terms of reference
4. In resolution 1998/68, 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
E/CN. 4/1999/39
page 5
before her and to enhance further her dialogue with Governments, as well as
to follow up on recommendations made in reports after visits to particular
countries. 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.
5. In its resolution, the Commission also requested the Special Rapporteur
to apply a gender perspective in her 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. The Commission further urged the Special Rapporteur to
draw the attention of the United Nations High Commissioner for Human Rights to
such situations of extrajudicial, summary or arbitrary executions that are of
particularly serious concern to her or where early action might prevent
further deterioration.
B. Violations of the right to life upon which the
Special Rapporteur takes action
6. During the present reporting period, 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, and in cases where
mandatory death sentences are imposed. 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 handicapped or ill, 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;
(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;
E/CN.4/1999/39
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(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 additional obligation to provide adequate
compensation to victims of violations of the right to life, and failure on
the part of Governments to recognize compensation as an obligation.
C. Legal framework and methods of work
7. For an overview of the international legal standards by which the
Special Rapporteur is guided in her work, she makes reference to the report of
her predecessor to the Commission on Human Rights at its forty-ninth session
(E/CN.4/1993/46, paras. 42-68) . For the purposes of the present report, the
Special Rapporteur has, as noted above, largely followed the methods of work
developed and applied by the previous Special Rapporteur, Mr. Bacre Waly
Ndiaye. These methods of work are described in Mr. Ndiaye's 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. General remarks
8. Since her appointment in August 1998, the Special Rapporteur has held a
number of consultations with the Office of the High Commissioner for Human
Rights, both in Geneva and in New York. On these occasions she has had the
opportunity to meet with staff of the OHCHR, and also to discuss issues of
mutual interest with other special rapporteurs of the Commission on Human
Rights. The Special Rapporteur considers cooperation with other
United Nations human rights mechanisms to be of key importance to the
implementation of her mandate, and looks forward to continuing the productive
cooperation that has already been established with other thematic mechanisms
and country-specific special rapporteurs, particularly with the Special
Rapporteur on the independence of judges and lawyers, the Special Rapporteur
on the question of torture, the Special Rapporteur on violence against women
and the Special Rapporteur on the situation of human rights in Afghanistan.
E/CN. 4/1999/39
page 7
She also intends to continue to develop her cooperation with the High
Commissioner for Human Rights. The Special Rapporteur also looks forward to
working together with United Nations field presences, particularly those set
up by the Office of the High Commissioner for Human Rights.
9. The Special Rapporteur attaches great importance to her cooperation
with non-governmental organizations engaged in human rights protection and
monitoring, especially as regards issues falling within the scope of her
mandate. In her new capacity as Special Rapporteur, she has already
established contacts with a variety of such organizations, and looks forward
to continuing this cooperation in the future. She will also try to support
local non-governmental organizations by disseminating information about the
functioning of United Nation human rights mechanisms. The media have also
played a key role in keeping the world informed of and engaged in the efforts
to fight human rights abuses, and the Special Rapporteur hopes for their
continuing support in carrying out her mandate.
10. While the Special Rapporteur undertook no official visits in the period
from the time of her appointment in August until the end of 1998, she has
written to a number of Governments expressing her interest in visiting their
countries. The Special Rapporteur believes that visits and field missions are
indispensable for the implementation of her mandate, as they allow her to
acquaint herself with specific country situations and to investigate not only
the allegations brought to her attention, but put her in a better position to
recommend remedial measures to help Governments in building their capacities
for better governance. Information gathered on site will also greatly assist
the Special Rapporteur in preparing accurate and objective reports on the
situation in the countries concerned. The Special Rapporteur further hopes to
visit countries where the authorities have managed to find constructive and
sustainable solutions to problems falling within the scope of her mandate, and
which in some instances could lend guidance to others still struggling with
similar problems. She looks forward to continuing her dialogue with
Governments in this regard.
B. Communications
11. The following paragraphs give an overview of communications sent to
Governments in the course of the last year. The figures shown below represent
only the tip of the iceberg, and should by no means be considered as
indicative of the occurrence of extrajudicial, summary or arbitrary
executions. Nor do these figures reflect the tragedy involved in each and
every case, behind which there is the suffering and sorrow of family members
which must eventually touch human society as a whole. The cries of agony,
which need no language, continue to exist. We must respond to ensure them and
ourselves that there is such a thing as an international conscience. No
self-respecting Government can or does have peace itself where such misery and
insecurity to human life surround its citizens.
12. During the period under review, the Special Rapporteur
transmitted 63 urgent appeals to the Governments of the following
30 countries: Bahamas (2), Brazil (2), Colombia (9), Costa Rica (1),
Democratic Republic of the Congo (3) , Egypt (1) , Guatemala (2) , Indonesia (1) ,
Iran (Islamic Republic of) (5), Iraq (2), Jamaica (1), Japan (1),
E/CN.4/1999/39
page 8
Kazakhstan (1), Mexico (1), Nigeria (2), Pakistan (1), Peru (3),
Philippines (2), Rwanda (3), Sierra Leone (2), Singapore (1), Sri Lanka (1),
Sudan (1) , Tajikistan (1) , Trinidad and Tobago (1) , Turkey (1) ,
Turkmenistan (2) , United States of America (7) , Venezuela (2) and
Yugoslavia (1) . She further sent one urgent appeal to the head of the Taliban
Council. Among the urgent appeals sent by the Special Rapporteur, 10 were
transmitted jointly with other experts of the Commission on Human Rights.
13. The urgent appeals sent concerned 158 individuals and the following
groups of persons: prisoners in Abu Ghraib and Radwaniyah prisons in Baghdad,
Iraq; inhabitants of Paratebueno in the municipality of Medina, department of
Cundinamarca, Colombia; student demonstrators in Jakarta, Indonesia; displaced
families in Rancho La Miel, department of Tolima, Colombia; civilians mainly
belonging to the Hazara ethnic and religious minority in Mazar-I-Sharif,
Afghanistan; inhabitants of Carmen de Atrato, department of Choco, Colombia;
inhabitants of San Jos& de Apartado, department of Antioquia, Colombia; human
rights advocates in Colombia; members of La Oficina de Derechos Humanos del
Arzobispado (the Archbishop's Office of Human Rights), Guatemala; members of
the Defensoria Maya, Guatemala.
14. In addition, the Special Rapporteur transmitted allegations regarding
the violation of the right to life of more than 2,300 individuals to the
Governments of the following 40 countries: Algeria, Bahrain, Belgium, Bhutan,
Brazil, Bulgaria, China, Colombia, Democratic Republic of the Congo, Ethiopia,
France, Guatemala, Guyana, Honduras, India, Indonesia, Iraq, Israel, Japan,
Liberia, Malaysia, Mexico, Morocco, Myanmar, Nepal, Nigeria, Pakistan, Panama,
Peru, Philippines, Republic of Korea, Rwanda, Senegal, Spain, Sri Lanka,
Sudan, Thailand, the United Kingdom of Great Britain and Northern Ireland,
Venezuela and Yugoslavia. In addition, allegations of violations of the right
to life were sent to the Palestinian Authority.
15. During the period under review, from 1 November 1997 to 31 October 1998,
the Governments of the following countries provided a reply to communications
addressed to them during 1998 or during previous years: Algeria, Armenia,
Azerbaijan, Bahamas, Bahrain, Bhutan, Brazil, Bulgaria, China, Colombia,
Ecuador, Egypt, Ethiopia, Germany, Guatemala, Indonesia, Iran (Islamic
Republic of) , Iraq, Japan, Mexico, Nepal, Panama, Paraguay, Peru, Philippines,
Singapore, Spain, Sudan, Thailand, Tunisia, Turkey, United Kingdom of
Great Britain and Northern Ireland, United States of America, Venezuela and
Yugoslavia. The Special Rapporteur regrets that the Governments of Cambodia,
Papua New Guinea and Yemen have not replied to any of the communications
transmitted by the Special Rapporteur in the past four years, and that the
Governments of the Democratic Republic of the Congo, Nepal and Pakistan did
not provide replies to communications sent in the past three years. The
Governments of Rwanda, Romania and Sri Lanka have not responded to
communications for the last two years.
III. SITUATIONS INVOLVING VIOLATIONS OF THE RIGHT TO LIFE
A. Capital punishment
16. In its resolution 1998/68, the Commission on Human Rights requested the
Special Rapporteur to continue monitoring the implementation of existing
E/CN. 4/1999/39
page 9
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.
17. In this context, the Special Rapporteur transmitted 36 urgent appeals on
behalf of 84 identified persons as well as on behalf of groups of unidentified
persons to the Governments of the following countries: Bahamas (2),
Democratic Republic of the Congo (2) , Egypt (1) , Iran (Islamic
Republic of) (8), Iraq (2), Japan (1), Nigeria (2), Pakistan (1),
Philippines (1), Rwanda (3), Sierra Leone (2), Singapore (1), Sudan (1),
Tajikistan (1), Trinidad and Tobago (1), Turkmenistan (1) and the
United States (6) . The Special Rapporteur transmitted allegations to the
Government of Iraq concerning irregularities in the implementation of capital
punishment concerning 62 identified persons and the execution of hundreds of
prisoners in connection with a so-called ‘ prison cleansing campaign” in
November and December 1997. For a more detailed discussion regarding the
issue of capital punishment, reference is made to chapter V . section A, of
this report.
B. Death threats
18. The Special Rapporteur transmitted 20 urgent appeals aimed at preventing
loss of life after she received reports on situations where the lives and
physical integrity of persons were feared to be in danger. In this context
urgent appeals were sent to the Governments of the following countries:
Brazil (2) , Colombia (8) , Costa Rica (1) , Guatemala (2) , Peru (3) ,
Philippines (1) , Sri Lanka (1) , Turkey (1) and Venezuela (1) . These urgent
appeals concerned 37 identified persons and groups of persons such as
inhabitants of certain municipalities, witnesses, indigenous groups, persons
belonging to certain families and members of opposition parties or human
rights groups.
19. 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
Brazil, Colombia, Peru and Venezuela. Death threats were allegedly received
from paramilitary groups in Colombia. Lastly, the Special Rapporteur
addressed urgent appeals to the Governments of Colombia, Costa Rica,
Guatemala, Peru, the Philippines and Sri Lanka on behalf of persons who had
allegedly received death threats from private individuals cooperating with or
tolerated by the authorities. 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
she transmitted three urgent appeals to the Government of Peru, including one
on behalf of a person who had cooperated with United Nations human rights
bodies.
E/CN.4/1999/39
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C. Deaths in custody
20. The Special Rapporteur transmitted allegations of the death in custody
of 44 persons, of whom 40 were identified, to the Governments of the
following countries: Algeria (1), Bahrain (3), Belgium (1), Bhutan (1),
China (1), France (1), Guyana (1), India (4), Iraq (4), Israel (2), Japan (1),
Liberia (4), Malaysia (1), Mexico (6), Morocco (1), Myanmar (1), Nigeria (2),
Peru (1) , Philippines (1) , Republic of Korea (1) , Sri Lanka (1) , the
United Kingdom of Great Britain and Northern Ireland (1) and Yugoslavia (4) .
One allegation was also sent to the Palestinian Authority. 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 two persons who
were reportedly sentenced to long prison terms after an anti-Government
demonstration. Fears for their lives had been expressed, as they were
reportedly suffering constant beatings in prison. The Special Rapporteur also
sent an urgent appeal to Venezuela on behalf of a person who was reportedly
being ill-treated and threatened with death while in incommunicado detention.
21. The Special Rapporteur is concerned about the situation in India, as she
continues to receive numerous reports of persons who died while they were in
the custody of the police and other State officials. She is also aware of a
growing number of cases in the Federal Republic of Yugoslavia, in which
detainees have died after having reportedly sustained serious injuries under
police interrogation. Reports also indicate that harsh living conditions and
ill-treatment continue to claim the lives of inmates in Venezuelan prisons.
The Special Rapporteur notes that in most countries where deaths in custody
occur, State authorities are too often slow or reluctant to investigate cases
and to bring persons responsible for such abuses to justice. As noted in
section J below, this situation has, in some countries, led to a climate of
impunity. She is also deeply concerned at the reluctance on the part of most
Governments to recognize their additional obligation to ensure compensation to
the families or relatives of victims of such abuses.
D. Deaths due to excessive use of force by law
enforcement officials
22. The Special Rapporteur transmitted allegations regarding violations
of the right to life of 37 persons, of whom 29 were identified, to the
Governments of the following countries: Bulgaria (1) , Ethiopia (4) ,
France (1), Guyana (1), Indonesia (2), Malaysia (9), Mexico (2), Morocco (1),
Nepal (1) , Panama (1) , Philippines (10) , Spain (1) , the United Kingdom of
Great Britain and Northern Ireland (1) and Venezuela (2) . These allegations
included two reported violations of the right to life as a consequence of
excessive use of force against participants in demonstrations in Indonesia.
The Special Rapporteur also transmitted urgent appeals to the Governments of
Indonesia and Brazil with the aim of preventing deaths due to excessive use of
force by law enforcement officials. The Special Rapporteur appealed to the
Government of Indonesia when she was informed that at least five students had
been shot dead during a demonstration in Jakarta on 12 May 1998. In view of
the fact that more demonstrations were expected, the Special Rapporteur
expressed her concern over the security of the participants.
E/CN. 4/1999/39
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23. The Special Rapporteur is particularly concerned about reports from
the Philippines saying that eight prisoners died as a result of excessive use
of force by the Philippine National Police in connection with prison riots.
It is alleged that several of the prisoners were shot dead after they had been
wounded and were lying on the floor. The Special Rapporteur also notes with
concern reports that eight Indonesian nationals were killed when Malaysian
police reportedly attempted to forcibly repatriate a large group of
Indonesians who were being held in immigration detention camps. She has also
received reports indicating that in Brazil during the last two years, the
average number of deaths resulting from police action has doubled. This trend
has been attributed to the failure of the State authorities to prosecute
police officers who shoot or wound criminal suspects.
E. Deaths due to attacks or killings by security
forces, paramilitary groups or private forces
cooperating with or tolerated by the State
24. The Special Rapporteur transmitted allegations of killings by security
forces, by paramilitary groups or by private forces to the Governments of
Brazil (3) , Colombia (98) , Democratic Republic of the Congo (185) ,
Ethiopia (8), Guatemala (2), Honduras (3), India (8), Indonesia (6), Iraq (1),
Israel (3), Mexico (18), Myanmar (160), Pakistan (44), Peru (3),
Philippines (4), Senegal (2), Sri Lanka (10), Sudan (129), Thailand (3) and
Yugoslavia (78) . The Special Rapporteur also transmitted allegations to the
Government of Rwanda concerning the death of 1,123 persons, including many
women and children, in massacres allegedly carried out by the Rwandese
Patriotic Army.
25. The Special Rapporteur transmitted an appeal urging the head of the
Taliban Council to ensure the physical integrity of the civilian population
of Bamyan and other parts of Afghanistan under Taliban control. The appeal
was sent following alleged massacres of civilians by Taliban forces in
Mazar-I-Sharif in August 1998. An urgent appeal was also sent to the
Government of the Federal Republic of Yugoslavia following the killing
of 25 Kosovo Albanians in clashes with government forces in the Drenica region
in February 1998. Additionally, the Special Rapporteur appealed to the
Government of Mexico following the killing of 45 indigenous Tzotziles by
paramilitary groups in the area of Acteal in the State of Chiapas in
December 1997. She further transmitted allegations of deaths due to attacks
by paramilitary groups to the Governments of Colombia, Mexico and Ethiopia and
by private individuals cooperating with or tolerated by the State to the
Governments of Brazil, Colombia, Guatemala, Honduras, Mexico and Pakistan.
26. The situation in the Great Lakes region of Africa remains a cause for
deep concern for the Special Rapporteur. She is outraged by the continuing
reports of massacres allegedly carried out by the Rwandese Patriotic Army and
the growing number of civilians, including many Rwandan refugees, allegedly
killed by the security forces of the Democratic Republic of the Congo. She is
also alarmed by the situation in Myanmar where government security forces have
allegedly continued summary killings of unarmed villagers, most often in the
context of forced relocation or forced labour for the security forces. The
Special Rapporteur remains extremely concerned about the situation in
Colombia, where attacks conducted by members of the army and paramilitary
E/CN.4/1999/39
page 12
groups against those believed to cooperate with the guerrillas have allegedly
led to the deaths of many innocent civilians. The crisis in the Kosovo
province in the Federal Republic of Yugoslavia has claimed the lives of a
large number of unarmed civilians, including many women and children. It
should be noted that the allegations presented above represent a mere fraction
of the actual number of civilians killed in Kosovo, and only reflect cases
brought directly to the Special Rapporteur's attention. The Special
Rapporteur is also deeply concerned about continuing reports of extrajudicial
killings by police and security forces in Pakistan.
F. Violations of the right to life during armed conflicts
27. The Special Rapporteur remains extremely concerned about the growing
number of civilians and persons hors de combat killed in situations of
internal strife or armed conflict in all regions of the world. In the last
year many thousands of persons not participating in armed confrontations have
lost their lives as a result of deliberate killings, 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 Democratic Republic of the Congo, Myanmar,
Sri Lanka, the Sudan and the Federal Republic of Yugoslavia.
G. Expulsion, refoulement or return of persons to a
country or place where their lives are in danger
28. The Special Rapporteur transmitted one urgent appeal to the Government
of Kazakhstan on behalf of three Uighur nationals from China who were
reportedly in imminent danger of being extradited to China, where they
allegedly could face torture and execution, as they were accused of ‘ ethnic
separatist” activities by the Chinese authorities.
H. Genocide
29. The Special Rapporteur is aware of the frequent and at times casual use
of the term ‘ genocide” in everyday political discourse, which risks eroding
some of its weight as a legal term. This underscores the importance of using
the term ‘ genocide” with precision and in accordance with the criteria set out
in article II of the Convention on the Prevention and Punishment of the Crime
of Genocide. However, she notes with concern the reluctance on the part of
the international community to use the term ‘ genocide”, even when the
situations referred to constitute grave and systematic violations of the right
to life which seem to match these criteria. The Special Rapporteur welcomes
the decision to include the crime of genocide in the jurisdiction of the
International Criminal Court, the Statute of which was adopted in Rome
on 17 July 1998.
30. In this context, the Special Rapporteur wishes to note the report of the
Secretary-General's Investigative Team charged with investigating serious
violations of human rights and international law in the Democratic Republic
of the Congo (S/1998/581, annex) . In its report the Team presented the
preliminary conclusion that ‘ the systematic massacre of those [ Rwandan Hutus]
remaining in Zaire was an abhorrent crime against humanity, but the underlying
rationale for the decisions is material to whether these killings constituted
E/CN. 4/1999/39
page 13
genocide, that is to eliminate, in part, the Hutu ethnic group. The
underlying reason for the massacres of Zairian Hutus in North Kivu is also
material. This question is the most momentous one included in the mandate
given to the Team, and one which requires further investigation.” The Special
Rapporteur regrets that, because of lack of cooperation on the part of the
Government of the Democratic Republic of the Congo, the Team was unable to
complete its investigations.
I. Deaths due to acts of omission
31. The Special Rapporteur transmitted an allegation to the Government of
Sri Lanka concerning an incident reported to have occurred in the Katumara
prison in December 1997, when 134 Tamil prisoners were allegedly attacked by
armed Sinhalese prisoners. Three persons were reportedly killed and 17 others
wounded in this attack which allegedly was carried out with the acquiescence
or participation of prison guards and officials. The Special Rapporteur also
submitted allegations to the Government of Algeria regarding the killing
of 972 persons by armed groups in several locations close to Algiers. She is
deeply disturbed by reports that in most of these incidents government forces,
which were apparently stationed close to the scenes of the killings, failed to
intervene despite calls for help. It is reported that in many cases the
authorities have taken no action to investigate the killings or to arrest the
perpetrators. One allegation was further submitted to the Government of the
United Kingdom of Great Britain and Northern Ireland regarding a case in
Northern Ireland in which it was alleged that a patrol of the Royal Ulster
Constabulary, which was present at the scene, failed to intervene when a
Catholic man was attacked by a group of loyalists. The man later died in
hospital as a result of head injuries.
3. Impunity
32. The Special Rapporteur wishes to emphasize that 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. However, the Special Rapporteur is deeply
concerned that in most of the countries where violations of the right to
life were committed, the authorities have failed in their duty to bring
perpetrators to justice, which in some countries has led to a climate of
impunity often leading to the perpetuation and encouragement of human rights
violations, including extrajudicial, summary or arbitrary executions. For
more detailed discussion concerning the problem of impunity, reference is made
to chapter V . section B, of this report.
K. Rights of victims
33. The right of victims or their families to receive fair and adequate
compensation within a reasonable period of time is a recognition of the
State's responsibility for the acts committed by its personnel, as well as 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
alleged perpetrators. The Special Rapporteur wishes to emphasize that the
right of the victim is important not as an instrument of revenge, but in order
to ensure respect for the rule of law.
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IV. ISSUES REQUIRING THE SPECIAL RAPPORTEUR'S ATTENTION
A. Violations of the right to life of women
34. During the period under review, the Special Rapporteur took action on
behalf of 123 women, of whom 106 were identified. The Special Rapporteur
transmitted urgent appeals on behalf of 15 women to the Governments of
Brazil, Colombia, Costa Rica, Guatemala, the Islamic Republic of Iran, Peru,
Sierra Leone, the Sudan, Trinidad and Tobago and the United States. She also
sent an appeal to the Government of Colombia on behalf of a number of
displaced families. In addition, the Special Rapporteur transmitted
allegations regarding 108 cases of violations of the right to life of women,
including 12 minors, said to have occurred in Belgium (1), Colombia (11),
the Democratic Republic of the Congo (3) , Indonesia (2) , Liberia (1) ,
Myanmar (38) , the Philippines (1) , Rwanda (43) and Sri Lanka (8) . Allegations
of a more general nature regarding violations of the right to life of groups
of unidentified persons, including many women, were also sent to the
Governments of Algeria and the Federal Republic of Yugoslavia.
35. 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. Most of the women on whose behalf the
Special Rapporteur took action were women who received death threats or who
were killed in attacks or killings by security forces of the State or by
paramilitary groups. The Special Rapporteur is alarmed by reports from
Sri Lanka and Myanmar saying that several women had allegedly been gang-raped
before being killed. The Special Rapporteur is also concerned about the large
number of women killed in the conflict in Kosovo. Many women are also among
growing numbers of people killed by armed groups in Algeria.
B. Violations of the right to life of minors
36. During the period under review, the Special Rapporteur took action on
behalf of 67 minors, of whom 56 were identified. She transmitted urgent
appeals on behalf of minors to the Governments of Colombia, Mexico and
the United States of America. JII appeal was also sent to the head of the
Taliban Council. The urgent appeal transmitted to the United States concerned
a person who was reportedly facing the death penalty in Texas for an act of
murder he reportedly committed when he was 17 years of age. The urgent
appeals sent to the Governments of Colombia and Mexico and the head of the
Taliban Council concerned unspecified or unknown numbers of minors whose lives
were feared to be threatened, either because of their link to an adult or in
connection with indiscriminate violence by paramilitary forces.
37. The Special Rapporteur transmitted 64 alleged cases of violations of the
right to life of minors to the Governments of: Colombia (5), Democratic
Republic of the Congo (1), Ethiopia (1), France (1), Honduras (1), Israel (2),
Mexico (2), Myanmar (7), Nigeria (1), Pakistan (3), Philippines (3),
Rwanda (25), Sri Lanka (6), Thailand (3), Venezuela (2) and Yugoslavia (1).
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These included children who had died as a result of an excessive use of force,
as well as in attacks or killings committed by security forces or paramilitary
groups. Allegations of killings of groups of unidentified persons, including
several children, by armed gangs were also sent to the Government of Algeria.
38. In the last year large numbers of children have been killed in the
context of armed conflict or internal strife in countries such as Algeria,
the Democratic Republic of the Congo, Sri Lanka and the Federal Republic of
Yugoslavia. The Special Rapporteur is also distressed that many children were
reportedly among the victims of massacres in the Democratic Republic of
the Congo, Myanmar and Rwanda.
C. Violations of the right to life concerning
refugees and internally displaced persons
39. During the present reporting period, the Special Rapporteur sent both
urgent appeals and allegations concerning individuals and groups of people who
had been displaced, either as refugees or as internally displaced persons, and
who had suffered violations or threats of violations of the right to life.
The countries to which these communications were sent and the individuals on
whose behalf they were transmitted include: 70 peasant families in Colombia
who reported having received death threats from paramilitary groups;
54 Rwandese refugees in the Democratic Republic of the Congo, who were
reportedly killed while attempting to return to their homeland; and
45 Karen-minority villagers who had been forcibly relocated in Myanmar.
D. Violations of the right to life of individuals
carrying out peaceful activities in defence of
human rights and fundamental freedoms
40. During the period under review, the Special Rapporteur transmitted
urgent appeals on behalf of 14 persons carrying out peaceful activities in
defence of human rights and fundamental freedoms, requesting the Governments
concerned to take the necessary measures to protect these individuals' right
to life. The action undertaken by the Special Rapporteur was on behalf of
human rights defenders threatened in the following countries: Brazil (1) ,
Colombia (2) , Costa Rica (1) , Guatemala (6) , Peru (2) , Philippines (1) and
Turkey (1) .
41. In addition, the Special Rapporteur transmitted allegations of
violations of the right to life of 13 human rights defenders. The following
human rights defenders were reportedly killed in Brazil: Fransisco de Assis
Araujo, Onalicio Araujo Barror, Valentin Serra; Colombia: Jesias Maria Valle
Jaramillo, Luis Alberto Lopera Munera, Rosmira Gallego; Democratic Republic
of the Congo: Oswald Hakorinama; Ethiopia: Ato Assefa Maru; Guatemala:
Monseffior Juan Gerardi; Honduras: Jorge Castillo, Julian Alberto Morales;
Mexico: Jos& Tila L6pez Garcia, Oscar Rivera Leyva.
42. 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 situations in Colombia and
Guatemala, where human rights defenders seem to be one of the target groups
E/CN.4/1999/39
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for extrajudicial, summary or arbitrary executions and where measures aimed
at their protection seem ineffective. The Special Rapporteur has received
reports indicating that in the period from 1 January to 30 November 1998, more
than 40 individual human rights activists and a large number of human rights
groups, mainly in Latin America, were either threatened with death or
extrajudicially killed.
E. Violations of the right to life of persons exercising their
right to freedom of opinion and expression
43. 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 160 persons exercising their right to freedom of opinion and
expression were transmitted to the Governments of the following countries:
Bhutan (1), China (1), Colombia (5), Indonesia (3), Iraq (4), Mexico (1),
Myanmar (1) , Nepal (1) , Pakistan (11) , Panama (1) , Senegal (1) , Sudan (129)
and Yugoslavia (1) . The allegations sent to the Government of the Sudan
concerned the alleged killing of 129 young men who had apparently been
forcibly recruited to undergo military training. It is reported that officers
gave the order to shoot at the recruits when they expressed, in a peaceful
manner, resentment that their request for leave to celebrate a religious
holiday had been turned down. It is alleged that 74 persons were shot dead
and 55 others drowned when trying to escape in a boat that was shot at and
then sank.
44. Moreover, the Special Rapporteur transmitted 8 urgent appeals on behalf
of 12 persons exercising their right to freedom of opinion and expression
to the Governments of: Indonesia (1), Iran (Islamic Republic of) (4),
Pakistan (1) , Sri Lanka (1) and Turkmenistan (1) .
F. The right to life and the administration of justice
45. During the period under review the Special Rapporteur undertook action
on behalf of 14 persons involved in or related to the administration of
justice, including lawyers, plaintiffs and witnesses. She transmitted one
allegation of a violation of the right to life to the Government of Guatemala,
regarding the killing of a person who was to appear as a witness in a case
against three police officers accused of murder. The Special Rapporteur also
sent urgent appeals to the Governments of Colombia, Costa Rica, Guatemala,
Peru, the Philippines and Venezuela with the aim of preventing the 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
46. The Special Rapporteur acted on behalf of a variety of persons
considered to belong to national, ethnic, religious and/or linguistic
minorities in their countries. Both urgent appeals and individual allegations
concerning violations of the right to life were transmitted to Governments
during the period under review. This included communications sent to the
following countries on behalf of the following persons: the Federal Republic
E/CN. 4/1999/39
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of Yugoslavia on behalf of 80 ethnic Albanians in the province of Kosovo;
Sri Lanka concerning over 20 persons belonging to the Tamil minority; Iraq on
behalf of four Shi'a Muslims; Nepal concerning the alleged death of a Tibetan
monk; and China where one Tibetan monk was said to have died as a result of
torture. In addition, communications were sent to Brazil on behalf of an
indigenous activist from the Xucuru population; to Colombia regarding death
threats received by four indigenous activists and for the alleged killings of
two other indigenous activists; to the Democratic Republic of the Congo,
concerning the reported deaths of 54 Rwandan refugees; to Guatemala, where
four individuals working for the Mayan Defence of Guatemala reportedly
received death threats; to Honduras, on behalf of two members of the Garifunas
indigenous group; to Myanmar, regarding the reports of 168 deaths of people of
Karen ethnicity; and to Indonesia concerning the death of an East Timorese
woman and the situation facing the ethnic Chinese minority, which remains a
matter of concern.
H. Violations of the right to life and non-State actors
47. The Special Rapporteur notes that violent acts committed by non-State
actors do not fall within the purview of her mandate, which only allows her
to take action when perpetrators are believed to have a link with the State.
However, the Special Rapporteur is aware of and has received information
concerning violence committed by armed opposition groups resorting to murder
and indiscriminate or arbitrary killings of civilians as a tactic of armed
struggle against Governments. She is aware that violent acts committed
by such groups have led to the death of many civilians, in particular in
Algeria, Colombia and Sri Lanka, as well as in the Kosovo province of the
Federal Republic of Yugoslavia. The Special Rapporteur condemns these acts
as clear violations of basic humanitarian and human rights principles.
48. While the Special Rapporteur recognizes the difficulties that the
concerned Governments face in fighting armed insurgent groups, she notes with
concern that in some countries Governments have adopted counter-insurgency
strategies, often involving excessive and indiscriminate use of force, 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 wishes to refer to paragraph 1 of general
comment 6 of the Human Rights Committee on article 6 of the International
Covenant on Civil and Political Rights, in which the Committee confirmed that
there can be no derogation from the right to life, not ‘ even in time of public
emergency which threatens the life of the nation” . Governments engaged in
action against armed groups must ensure that its own forces act in accordance
with relevant international standards when carrying out their duties.
Governments are also encouraged to devise strategies aimed at good governance
through an efficient investigative process and to strengthen judicial capacity
for long-term relief from rampant violence.
I. Violations of the right to life of individuals who have
cooperated with representatives of United Nations human
rights bodies (reprisals )
49. During the period under review, the Special Rapporteur sent one urgent
appeal to the Government of Peru on behalf of a person who had cooperated with
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representatives of United Nations human rights bodies. Heriberto Benitez
Rivas, a human rights lawyer from Lima, reportedly received several death
threats in the spring of 1998 in connection with his work as a human rights
defender. Mr. Benitez had also given information to the United Nations
regarding death threats received by a former member of the Constitutional
Court in Peru.
V. ISSUES OF SPECIAL CONCERN TO THE SPECIAL RAPPORTEUR
A. Capital punishment
SO. The Special Rapporteur shares and reiterates the view of her predecessor
that capital punishment must be considered as an exception to the fundamental
right to life and should as such be interpreted restrictively. In view of the
fact that the loss of life is irreparable, it is also imperative that all
restrictions and standards contained in pertinent international instruments
are fully respected in proceedings relating to capital offences. The Special
Rapporteur takes action in cases of capital punishment in which there is
reason to believe that international restrictions, which are analysed in the
paragraphs below, are not respected. In such cases, the carrying out of a
death sentence may constitute a form of summary or arbitrary execution.
Therefore, the Special Rapporteur has based her assessment of cases brought to
her attention on the need to ensure full respect of the right to a fair trial,
including guarantees as regards the impartiality, independence and competence
of the judiciary. In addition, the Special Rapporteur has been guided in her
work by the basic principles of the desirability of the abolition of capital
punishment and the need to observe special restrictions and limitations in
cases when the death penalty is applied.
1. Desirability of the abolition of the death penalty
51. The Special Rapporteur notes that while capital punishment has not
yet been prohibited under international law, various United Nations human
rights organs and bodies have, on several occasions, strongly reaffirmed
the desirability of the abolition of the death penalty. During its
fifty-third session the Commission on Human Rights took a major step in this
direction with the adoption of resolution 1997/12 on 3 April 1997 on the
question of the death penalty, in which the Commission for the first time
called upon all States that had not yet abolished the death penalty to
progressively restrict the number of offences for which the death penalty
could be imposed. It further called on States to consider suspending
executions, with a view to abolishing the death penalty. In the corresponding
resolution 1998/8 adopted at its fifty-fourth session, the Commission called
on States ‘ to establish a moratorium on executions, with a view to completely
abolishing the death penalty”. In this context, the Special Rapporteur
welcomes the fact that on 28 November 1998 the Bulgarian Parliament decided
to abolish capital punishment. The last death sentence in Bulgaria was
implemented in 1989. It may be noted that more than 100 countries have so
far abolished the death penalty either by law or in practice.
52. The Special Rapporteur notes with appreciation that the Statute of the
International Criminal Court, adopted in Rome on 17 July 1998, does not
include capital punishment among the penalties that may be imposed by the
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Court. It will be recalled that the International Criminal Tribunal for
the Former Yugoslavia and the International Criminal Tribunal for Rwanda
established by the Security Council in 1993 and 1994, respectively, are not
authorized to impose death sentences.
53. 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, Protocol No. 6 to the European Convention on Human Rights, aimed
at abolishing the death penalty, and are also required to place an immediate
moratorium on executions. However, the Special Rapporteur has received
reports that in the Russian Federation hundreds of persons have been sentenced
to death and an unknown number executed since the country joined the Council
of Europe in 1996. She has been informed that the death penalty is to be
abolished in the Russian Federation by February 1999, in accordance with the
country's obligations as a member of the Council of Europe. The Special
Rapporteur is also concerned about reports that Ukraine continued executing
prisoners in 1997, despite the required moratorium. The Special Rapporteur
notes with appreciation the decision of the House of Commons of the
United Kingdom of 20 May 1998 to incorporate Protocol No. 6 into British Law.
The Special Rapporteur also welcomes the decision of the General Affairs
Council of the European Union of 29 June 1998 to adopt a policy aimed at
promoting the abolition of the death penalty. In the declaration defining
this policy entitled ‘ Guidelines to European Union Policy Towards Third
Countries on the Death Penalty”, the European Union sets out as its objective
to work towards universal abolition of the death penalty as a strongly held
policy view agreed to by all its member States.
54. The Special Rapporteur notes with regret that despite the current trend
supporting the abolition of the death penalty, some countries have resumed
executions in the last year. She notes that in June 1998 Ethiopia carried out
its first execution since 1991, and that two brothers were executed in Gaza
in August 1998 after having been found guilty of murder. These were the first
executions to be carried out by the Palestinian Authority. The Special
Rapporteur has also been informed of two executions carried out in the Bahamas
in 1998, which marked the end of a two-year period during which no executions
took place in that country. It has further been brought to her attention that
since the reintroduction of the death penalty in the Philippines in 1993, more
than 820 persons have been sentenced to death.
2. Fair trial
55. Legal proceedings in relation to capital offences must conform to the
highest standards of impartiality, competence, objectivity and independence
of the judiciary, in accordance with the pertinent international legal
instruments. It is, therefore, imperative that defendants facing the
imposition of capital punishment are able to benefit fully from the right to
a competent defence counsel at every stage of the proceedings. Defendants
must also be presumed innocent until their guilt has been proved beyond a
reasonable doubt. The Special Rapporteur shares the opinion expressed by her
predecessor that the execution of a death sentence passed after a trial in
which basic fair trial standards, as provided for in article 14 of the
International Covenant on Civil and Political Rights, were not respected
constitutes a violation of the right to life. During the present reporting
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period the Bahamas, the Democratic Republic of the Congo, Egypt, the
Islamic Republic of Iran, Iraq, Japan, Nigeria, Rwanda, Sierra Leone,
Tajikistan, Trinidad and Tobago, Turkmenistan and the United States of America
were among countries reported to have imposed death sentences after
proceedings in which the defendants did not benefit fully from the rights
and guarantees for a fair trial contained in the pertinent international
instruments. The Special Rapporteur has also received reports from
Afghanistan indicating that in many trials leading to the imposition of the
death penalty, sitting judges lack sufficient training and that cases are
often decided in a matter of minutes.
56. In cases where the defendants may face the death penalty, the
proceedings must also respect and ensure the right of review of both
the factual and legal aspects of the case by a higher instance, which should
be composed of judges other than those who dealt with the case at first
instance. Furthermore, there can be no exception to the defendant's right to
seek pardon, clemency or commutation of the sentence. In this context, the
Special Rapporteur regrets that on 23 October 1997 the Government of Jamaica
notified the Secretary-General that it was withdrawing as a State party to the
first Optional Protocol to the International Covenant on Civil and Political
Rights, which allows individuals who claim that their rights under the
Covenant have been violated to petition the Human Rights Committee. The
Government's decision is of particular concern to the Special Rapporteur as it
will withhold an important appeal option from persons facing a death sentence.
It should be noted that when examining communications filed by persons
sentenced to death in Jamaica, the Human Rights Committee found that in a
considerable number of cases article 14, the right to a fair trial, had been
violated. On 31 October 1997 the Special Rapporteur, Mr. Bacre Waly Ndiaye,
raised these concerns in a letter to the Government of Jamaica.
57. The Special Rapporteur has received reports from Egypt indicating that
since October 1992, military courts that do not allow for the right to appeal
have passed 58 death sentences which were subsequently carried out. The
Special Rapporteur also remains concerned about the situation in Rwanda, where
it is alleged that courts conducting trials for the crime of genocide, which
often led to the imposition of death sentences, continue to deny defendants
their right to basic fair trial guarantees, particularly the right to legal
representation and appeal. The extensive use of the death penalty in China
continues to be a cause for great concern, as there are allegations of serious
shortcomings in many of the trials leading to the passing of death sentences.
It is reported that more than 3,100 persons were sentenced to death by Chinese
courts in 1997. Some 1,800 people were reportedly executed in the same time
period.
58. The Special Rapporteur is also aware of cases in which defendants who
have been sentenced to death have decided to accept the imposition of the
death penalty and not to appeal to a higher jurisdiction or to request
clemency or pardon. In this regard, the Special Rapporteur 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”, recommending that
Member States introduce mandatory appeals or review with provisions for
clemency or pardon in all cases of capital offence. During the period under
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review, the Special Rapporteur transmitted urgent appeals on behalf of
two persons who had chosen to withdraw their appeals in the United States
of America.
59. Another cause for concern is the practice of establishing special
tribunals and jurisdictions as a response to situations of internal conflict
or other exceptional circumstances. Such tribunals are often set up with the
intention of speedy trials, which often result in hastily imposed death
sentences. There are reports of serious violations of fair trial standards in
connection with proceedings before special tribunals, particularly as concerns
the independence and impartiality of the judiciary, since the judges are often
closely connected and at times directly accountable to the law enforcement
authorities or the military.
60. The Special Rapporteur is also concerned over reports that most of the
more than 60 foreigners currently under death sentence in the United States
of America have been sentenced without being informed of their right under
article 36 of the Vienna Convention on Consular Relations to receive legal
assistance from their respective consulates. In this regard, the Special
Rapporteur notes the case of Mr. Angel Francisco Breard, a national of
Paraguay, who was executed in Virginia despite a ruling by the International
Court of Justice that the execution should be postponed pending full
adjudication by the Court. It appears that Breard had not been informed of
his rights under the Vienna Convention prior to his conviction. She further
notes reports that 60 foreign nationals were among the more than 120 persons
allegedly executed in Saudi Arabia in 1997, following trials that reportedly
fell short of international standards.
3. Restrictions on the use of the death penalty
61. The Special Rapporteur is deeply disturbed that some countries still
permit capital punishment for juvenile offenders, despite the fact that this
practice is prohibited under international law. It may be noted that more
than 100 of all 122 countries in which capital punishment is still legally in
force have passed laws excluding death sentences for juveniles. During the
present reporting period the Special Rapporteur transmitted urgent appeals to
the Government of the United States of America on behalf of two persons
sentenced to death for crimes they reportedly committed when they were
17 years old. The Special Rapporteur notes that since 1990, the Islamic
Republic of Iran, Nigeria, Pakistan, Saudi Arabia, the United States and Yemen
have executed persons who were reportedly under the age of 18 at the time when
they committed the crime for which they received their death sentences. In
the period 1985-1997, 19 juveniles were reportedly executed worldwide.
62. The Special Rapporteur wishes to point out that in resolution 1989/64
the Economic and Social Council recommended that States strengthen the
protection of the rights of those facing the death penalty by eliminating the
death penalty for persons suffering from mental handicap or extremely limited
mental capacity. It should further be noted that 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. The
Special Rapporteur strongly supports these recommendations and urges States to
take action to reflect these restrictions in domestic law. In the period
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under review, the Special Rapporteur took action on behalf of three persons
who were sentenced to death in the United States of America, despite
reportedly being mentally ill or handicapped. In this regard, the Special
Rapporteur takes particular note of the case of Joseph John Cannon, a
diagnosed schizophrenic, who was executed in Texas in April 1998 for a murder
committed in 1977 when he was 17 years of age. The Special Rapporteur
transmitted an urgent action on Mr. Cannon's behalf on 2 March 1998.
63. In regard to restrictions on the use of the death penalty, the
Special Rapporteur finally wishes to recall article 6, paragraph 2, of the
International Covenant on Civil and Political Rights which stipulates that,
‘tin countries which have not abolished the death penalty, sentence of death
may be imposed only for the most serious crimes”. In its general comment 4 on
article 6, 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. The Special Rapporteur strongly supports this
conclusion, and further believes that the death penalty should under no
circumstances be mandatory by law, regardless of the charges involved.
Furthermore, 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
considers that these restrictions exclude the possibility of imposing death
sentences for economic and other so-called victimless offences, or activities
of a religious or political nature - including acts of treason, espionage and
other vaguely defined acts usually described as ‘ crimes against the State” or
‘ disloyalty”. Similarly, this principle would exclude actions primarily
related to prevailing moral values, such as adultery and prostitution, as
well as matters of sexual orientation.
64. The Special Rapporteur is particularly disturbed by reports that in
August 1997 in the Islamic Republic of Iran, a 20-year-old woman was arrested
and charged with engaging in sexual relations outside marriage. According to
the information received, the woman was immediately sentenced to death by
stoning. After she was stoned, medical doctors reportedly confirmed that she
was dead. However, she apparently started breathing while being taken to the
morgue, and was subsequently transferred to the hospital where her condition
reportedly improved. In January 1997 the Special Rapporteur, Mr. Bacre
Waly Ndiaye, sent an urgent appeal to the Government of Iran, following
reports that the woman was about to be sentenced to a second stoning.
B. Impunity
65. The Special Rapporteur wishes to recall that the Human Rights Committee
has in its general comment on article 6 of the International Covenant on Civil
and Political Rights, as well as in numerous decisions, asserted that States
are required to investigate all human rights violations, particularly those
affecting the physical integrity of the victim, to bring to justice those
responsible for such abuses, to pay adequate compensation to the victims or
their families and to prevent the recurrence of such violations. The duty to
investigate human rights abuses has been further reiterated and confirmed in a
number of international instruments, including the Declaration on the
Protection of All Persons from Enforced Disappearance and the Principles on
the Effective Prevention of and Investigations of Extra-legal, Arbitrary and
Summary Executions.
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66. The Special Rapporteur notes that one of the key criteria of a
functioning State is a justice system which is ready and capable of protecting
the rights and integrity of the individual, inter alia by sanctioning the
commission of crimes. Impunity for persons responsible for sanctionable acts,
and in particular grave violations of human rights, undermines the rule of
law, which is one of the most fundamental principles upon which society is
based. Impunity also leads to the perpetuation of human rights violations, as
offenders continue their practices and new abuses are ignored or covered up.
67. In some cases situations of impunity are a direct product of laws or
other regulations which explicitly exempt public officials or certain
categories of State agents from accountability or prosecution. This situation
is particularly common in countries facing internal unrest or other
exceptional circumstances, and where the authorities, particularly the police
or security forces, are given wide-reaching powers to counter a real or
perceived threat to national security. Broadly defined and vaguely worded
amnesty laws, usually passed in the name of national reconciliation, may in
some circumstances also lead to impunity for past abuses committed under the
authority of a previous Government. In most cases, however, impunity is the
product of a weak and inadequate legal system, which is unable or unwilling to
take appropriate action to investigate and prosecute cases of human rights
abuses, including violations of the right to life. In some countries the
judiciary is strongly influenced by or directly accountable to the executive
authorities, while in others, court decisions and orders are overruled or
simply ignored by the law enforcement authorities. The Special Rapporteur is
also increasingly concerned about the practice of prosecuting members of
security forces in military courts, which often fall short of international
standards regarding the impartiality, independence, and competence of the
judiciary. Internal commissions of inquiry established to investigate abuses
committed by law enforcement officials also often fail to meet these criteria.
68. During the period under review, the Special Rapporteur continued to
receive information relating to impunity. She is particularly disturbed by
the growing number of reports of killings by government security forces in
Myanmar. The Special Rapporteur is not aware of any attempt by the Government
of Myanmar to bring an end to these abuses, nor is there any indication that
the Government intends to investigate the crimes committed in order to bring
the perpetrators to justice. The Special Rapporteur is also alarmed by the
obvious impunity with which paramilitary forces in Colombia have continued to
commit systematic human rights violations, including violations of the right
to life. Another cause for great concern is the continuing violence in the
Great Lakes region, particularly in the Democratic Republic of the Congo and
Rwanda, where Government-controlled forces, acting in a climate of apparent
impunity and lawlessness, have reportedly committed large-scale atrocities,
including massacres of civilians.
69. The Special Rapporteur welcomes the fact that after several years of
preparation, the Statute for a Permanent International Criminal Court
was finally adopted by the United Nations Diplomatic Conference of
Plenipotentiaries on the Establishment of an International Criminal Court in
Rome on 17 July 1998. The Court, which is to be established once the Statute
is ratified by 60 States, will have jurisdiction over serious crimes of
international concern, including genocide, war crimes, terrorism and crimes
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against humanity. Under the principle of complementarity, the Court is to
exercise its jurisdiction only in cases when national justice systems are
unable or unwilling to do so. The Special Rapporteur is hopeful that the
International Criminal Court, once it is established, will assume a key role
in curbing the current trend of impunity by bringing perpetrators of gross
human rights violations to justice.
70. In this context, the Special Rapporteur notes the discussion in the
United Kingdom in late 1998 to allow extradition proceedings against former
Chilean President Augusto Pinochet. It must be recognized that no one is
above the law insofar as human lives are concerned. Strict concepts of
impunity are now under challenge. However, the Special Rapporteur wishes to
point out that measures taken to combat impunity by bringing perpetrators to
justice cannot be selective, in order to have a meaningful impact on the
responsibility of the State and its rulers to respect human life. Impunity
for rulers suspected of killings is an offence to society as a whole.
However, the objective of bringing officials and rulers within the ambit of
ordinary law in this regard is not simply to give satisfaction to the family
of the victims or to seek revenge for past atrocities, but to promote peace
and respect for the law. It will be a major contribution towards ensuring a
more responsible leadership.
C. Child soldiers
71. The Special Rapporteur notes with deep concern that there are today an
estimated 250,000 children under the age of 18 serving in government forces
or armed groups in various parts of the world. Some of these children are
reportedly no more than eight years old. Under current international human
rights and humanitarian law standards the age-limit for recruitment for
military service is set at 15 years. It may be recalled that article 1 of the
Convention on the Rights of the Child stipulates that [ F]or the purposes
of the present Convention, a child means a person below the age of
eighteen years, unless under the law applicable to the child, majority is
attained earlier”. The only exception to this principle under the Convention
is in relation to recruitment to armed forces and participation in hostilities
(art. 38) . This provision would seem to run counter to a growing legal
consensus that a child under the age of 18 is entitled to special protection
of its rights. A logical conclusion following from this principle would be
that children need and should be afforded more, and not less, protection in
times when their lives and security are threatened by armed hostilities.
72. The Special Rapporteur further notes that the majority of countries
have set 18 years as the age when persons obtain the right to participate in
political life including the right to vote. It is questionable whether young
persons under the age of 18, who are not entitled to vote, can be required to
take part in conflicts which are often the consequence of political decisions
over which they have no influence. The Special Rapporteur further notes that
the Human Rights Committee, in paragraph 13 of its general comment 21 on
article 10 of the International Covenant on Civil and Political Rights, has
recommended that the age for majority, when it comes to matters of criminal
responsibility, should be 18 years.
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73. While many of the juveniles participating in armed conflict are often
presented as ‘ volunteers”, reports indicate a large number of these persons
have actually been forcibly recruited. Even when the decision to enlist
appears to have been based on free will, it should be noted that young
persons, who have not reached the age of majority, cannot be expected to fully
appreciate the implications of their decisions and actions or the dangers they
may face. Since children lack maturity they are also more likely to act in an
irresponsible way, which in the context of armed hostilities may result in
arbitrary actions, including violations of the right to life. In view of
these considerations and the legal arguments presented above, the Special
Rapporteur concludes that the use of children in armed conflict constitutes
a serious and direct threat to the protection and enjoyment of the right to
life.
D. Traditional practices and customs affecting the right to life
74. The Special Rapporteur's attention has been drawn to certain traditional
practices which, when condoned or ignored by the authorities, may constitute
violations of the right to life. She is deeply disturbed by reports of
so-called IIonour killings” reported to take place in some countries in the
Middle East, Latin America and South Asia, where husbands, fathers or brothers
have gone unpunished after having murdered their wives, daughters or sisters
in order to defend the honour of the family. She has also received accounts
of such cases reported to have occurred in Turkey. This practice is usually
resorted to when a woman is believed to have engaged in a sexual relationship
with a man. In other cases women have reportedly been killed by their
husbands after having demanded a divorce. The IIonour killing” is usually a
decision by an improvised tribunal consisting of male family members, and is
as a general rule carried out by an under-age male relative of the woman.
Such offenders are given special consideration of mitigation on the plea of
cultural sensitivity. The Special Rapporteur has been informed that men who
commit ‘ honour killings” normally receive considerably shorter sentences, as
the courts view defence of the honour of the family as a mitigating
circumstance. It is also alleged that the police often fail to intervene to
stop ‘ honour killings” they are made aware of. The Special Rapporteur has
received reports that in 1997 in Jordan more than 20 women were murdered by
male relatives claiming to have acted in defence of their family's honour.
She has also been informed that the Jordanian Penal Code includes several
articles providing for reduced penalties for men who kill their wives or
female relatives because of adulterous relationships. It further appears that
in these cases Jordanian courts often pass reduced sentences ranging from
two years to six months of imprisonment.
75. The Special Rapporteur urges States, and in particular members of the
judiciary in the countries concerned, to use all their authority and integrity
to bring this unacceptable practice to an end. With regard to the situation
in Jordan, the Special Rapporteur is encouraged to note that in recent times
members of the Royal Family have taken a personal interest in addressing the
country's problem of violence against women, including the practice of ‘ honour
killings” .
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E. The right to life and sexual orientation
76. The Special Rapporteur is deeply concerned by numerous and continuing
reports of persons having been killed or sentenced to death because of their
sexual orientation. She is particularly disturbed by reports from Brazil,
Colombia and Mexico, where so-called ‘ death-squads” have over the last years
reportedly murdered a large of number of persons belonging to sexual
minorities. The Special Rapporteur has been informed that in the period
from 1991 to 1994, 12 homosexual men were killed by armed groups in the city
of Tuxtla Guti&rrez, Mexico. It appears that the perpetrators of these
killings were never identified, and it is alleged that the authorities failed
to carry out thorough and complete investigations into these crimes. The
Special Rapporteur has also received reports that in the last several years
hundreds of so-called ‘ social undesirables”, including many homosexuals and
transvestites, have been killed by armed groups in Colombia. In Brazil it is
reported that hundreds of persons belonging to sexual minorities have been
murdered in the last 10 years. It is alleged that the Brazilian and Colombian
authorities have not taken adequate action to find and prosecute the persons
responsible for these crimes.
77. The Special Rapporteur regrets that in some States homosexual
relationships are still punishable by death. In this regard she wishes to
recall that under article 6 of the International Covenant on Civil and
Political Rights, death sentences may only be imposed for the most serious
crimes. As discussed above in chapter V . section A (3), this restriction
clearly excludes matters of sexual orientation. The Special Rapporteur
further believes that criminalizing matters of sexual orientation increases
the social stigmatization of members of sexual minorities, which in turn makes
them more vulnerable to violence and human rights abuses, including violations
of the right to life. Because of this stigmatization, violent acts directed
against persons belonging to sexual minorities are also more likely to be
committed in a climate of impunity.
VI. CONCLUDING REMARKS AND RECOMMENDATIONS
78. The observations and discussion presented above bear testimony to the
scope and seriousness of the problem of extrajudicial, summary or arbitrary
executions, and confirm the need for the international community to renew its
efforts to combat these atrocities. In light of the information brought to
her attention during the period under review, the Special Rapporteur concludes
that there is no indication of a decrease in violations of the right to life.
She notes that while certain persons, such as human rights defenders,
political activists, displaced persons and members of various minorities,
continue to be particularly exposed to violations of the right to life, these
abuses are by no means exclusively limited to these groups. In the last year
there have been increasing reports of killings perpetrated by
Government-controlled security forces and paramilitary units. Many of the
victims of these horrendous acts have been women, children and elderly
persons. The growing number of innocent civilians killed in the context of
armed conflict and internal strife is also a cause for deep concern.
79. The Special Rapporteur wishes to stress that ending violations of the
right to life is ultimately a question of Governments' genuine will and
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readiness to honour their obligation to protect and promote the rights of the
people living under their jurisdictions. Without basic respect for the rule
of law, all declarations and commitments made by Governments lose their
meaning, and the texts of the international instruments become empty words.
80. The Special Rapporteur is honoured to be entrusted with this challenging
mandate, and she wishes to take this opportunity to thank her predecessor,
Mr. Bacre Waly Ndiaye, for his hard and invaluable work in developing the
mandate into a strong and credible mechanism for the protection of perhaps
the most fundamental of all rights, the right to life. She recognizes the
daunting tasks ahead, which she will endeavour to carry out with objectivity,
diligence and commitment. At the same time, however, the Special Rapporteur
fears that the limited resources placed at her disposal will hamper her
efforts to discharge her mandate in an effective way. She is particularly
concerned that shortage of staff and the absence of a proper database system
may severely limit her possibilities for proper follow-up of cases brought to
her attention. The Special Rapporteur also wishes to stress that she will
only be successful in carrying out her mandate if Governments show willingness
to cooperate and support her work in a spirit of openness and good faith. She
further believes that her mandate can only be useful as a human rights
mechanism if it manages to let the voices of the victims and their families be
heard, and convince Governments of their responsibility to take joint action
in order to bring these abuses to an end.
Recommendations
1. Capital punishment
81. The Special Rapporteur strongly recommends that States that have not
ratified the International Covenant on Civil and Political Rights and, in
particular, its Second Optional Protocol, should do so. All States should
bring domestic legislation regarding the use of capital punishment in line
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 the International Covenant on
Civil and Political Rights.
82. Governments of countries in which the death penalty is still enforced
are urged to deploy every effort to restrict its use, and to take measures
aiming at the complete abolishment of capital punishment both in law and
practice. As one of these measures, Governments should establish a moratorium
on the execution of death sentences, in accordance with Commission on Human
Rights resolution 1998/8. Pending the imposition of such a moratorium,
Governments that continue to enforce death penalties are urged to take
immediate steps to bring their domestic legislation and legal practice into
line with international standards prohibiting the imposition of death
sentences in regard to minors and mentally ill or handicapped persons.
Governments are further called upon to review their existing legislation and
legal practice with the aim of limiting the use of the death penalty to
exclude crimes that cannot be considered ‘ most serious”, as provided in
article 6 of the International Covenant on Civil and Political Rights.
Death sentences should under no circumstances be mandatory.
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83. Governments of countries which still retain laws providing for the death
penalty, but which exercise a de facto moratorium on the passing of death
sentences or the implementation of such sentences, are called upon to take the
necessary steps to remove capital punishment from their legislation,
particularly where it applies to children.
2. Death threats
84. Governments are under an obligation to ensure the protection of the
human rights of all persons under their jurisdiction. This includes the duty
to investigate all instances of death threats or attempts against lives that
are brought to their attention, regardless of the race, ethnicity, religious
belief, political persuasion or other distinction of the potential victim.
Governments must also take effective preventive measures to ensure full
protection of those who are particularly exposed and vulnerable to
extrajudicial, summary or arbitrary execution. Governments should also
consistently and in the strongest possible terms publicly denounce death
threats, and adopt and publicly support policies aimed at promoting a climate
of tolerance.
3. Deaths in custody
85. The Special Rapporteur is deeply concerned over continuing reports of
deaths in custody. She wishes to emphasize the need for all States to review
legislation and practices regarding arrest and conditions of detention in
order to bring them into line with the Standard Minimum Rules for the
Treatment of Prisoners and other pertinent international instruments.
Governments should also take immediate steps to ensure that international
norms and principles prohibiting any form of cruel, inhuman or degrading
treatment are strictly applied in all places of detention.
86. The Special Rapporteur notes that most cases of custodial death occur
in the period between a person's arrests and his or her arraignment. She
therefore calls on Governments to deploy efforts to minimize the time of
pre-trial detention prescribed by law, and to ensure that standards pertaining
to the treatment of persons in pre-trial custody are observed. Prison guards
and law enforcement personnel should receive training on the observance of the
aforementioned norms in performing their duties. All deaths in custody should
be promptly investigated by a body that is independent from the police or
prison authorities. State authorities should guarantee the right of persons
in detention to receive visits by their lawyers and family, and to have access
to adequate medical care. When applicable, Governments should also continue
and strengthen their cooperation with the International Committee of the
Red Cross and allow free and unimpeded access of its delegates to places of
detention. In addition, she requests the Commission on Human Rights to call
for the rapid adoption of an optional protocol to the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment with
a view to establishing a system of periodic visits to places of detention.
4. Excessive use of force by law enforcement officials
87. The Special Rapporteur calls on all Governments to ensure that their
police and security personnel receive thorough human rights training, in
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particular with regard to restrictions on the use of force and firearms in the
discharge of their duties. Such training should also include the teaching of
methods of crowd control without resorting to lethal force. States are under
an obligation to ensure that all cases of excessive use of force by State
agents are thoroughly investigated, and that the persons responsible for such
abuses are brought to justice.
S. Violations of the right to life during armed conflict
88. States that have not yet ratified the four Geneva Conventions of 1949
and their two Additional Protocols are strongly encouraged to do so.
Governments should ensure that members of their military and security forces
receive adequate training in the human rights and humanitarian law standards
applicable to situations of armed conflict and internal strife. Officers and
other persons in positions of command should maintain strict discipline in
their respective units, and take prompt action to prevent human rights abuses
by their subordinates. Violations of humanitarian and human rights law
standards by members of the armed forces should be promptly and consistently
sanctioned.
89. Governments of countries engaged in action against armed opposition
groups should take the necessary steps to ensure that counter-insurgency
operations are conducted in strict compliance with international human
rights standards, and that government forces do not resort to excessive or
indiscriminate use of force. Non-State actors engaged in armed conflict
should undertake to respect basic humanitarian principles, particularly those
defined in common article 3 of the Geneva Conventions. Members of such forces
should be held legally accountable for their acts. Governments that control
armed groups operating outside their own territory should take full
responsibility for human rights violations, including extrajudicial, summary
or arbitrary executions, committed by these forces.
6. Imminent expulsion of persons to countries where
their lives are in danger
90. The Special Rapporteur calls upon Governments that have not yet ratified
the Convention and the Protocol relating to the Status of Refugees 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 to enable the host country to receive
these persons in safety and dignity.
7. Genocide
91. Governments are encouraged to ratify the Convention on the Prevention
and Punishment of the Crime of Genocide. The Special Rapporteur calls on
States to pay due attention to the stipulations in the Convention concerning
the prevention of genocide. Concerned States, assisted by the international
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community, should take all necessary measures to prevent acts of communal
violence or inter-ethnic conflict 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. If required, the international community should assist
these countries in preventing and defusing such conflicts. Governments should
at all times refrain from spreading or condoning any propaganda or incitement
to hatred and intolerance that might foment acts of communal violence.
Persons responsible for such acts should be brought to justice.
92. The Special Rapporteur encourages the States parties to the Convention
on the Prevention and Punishment of the Crime of Genocide to consider ways of
establishing a monitoring mechanism to supervise the implementation of the
Convention. She 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. She also welcomes the
adoption of the Statute of the International Criminal Court, and notes with
appreciation that the Court will have jurisdiction over the crime of genocide.
She is hopeful that the Court will be active in combating impunity for persons
responsible for acts of genocide, and thereby contribute to the eradication of
this horrendous crime.
8. Acts of omission
93. The Special Rapporteur urges Governments to adopt the necessary
preventive and protective measures to ensure full enjoyment and protection of
the right to life of all persons under their jurisdiction. Such measures may
include requests for international assistance, should the Governments
concerned feel unable to fulfil this obligation themselves. Governments are
obliged to fight impunity for all crimes and to bring to justice persons
committing murder in the context of mob violence or in the name of so-called
popular justice. Governments should at no time allow acts of incitement to
revenge that might lead to violations of the right to life. Governments
should under no circumstances harbour and support groups or persons engaged
in acts of terrorism. State officials who fail to take appropriate action to
prevent violations of the right to life should be prosecuted.
9. Impunity
94. States are obliged to conduct exhaustive and impartial investigations
into allegations of violations of the right to life, in all its
manifestations, and to identify and prosecute those responsible. In addition
to combating impunity by addressing past or ongoing abuses, States should take
positive measures aimed at preventing the recurrence of such violations.
95. In this regard, the Special Rapporteur believes that the following
measures should be introduced: (a) Governments that have not done so should
establish strict procedures, such as habeas corpus, aimed at ensuring the
integrity of persons under any form of detention; (b) State authorities should
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ensure that strict discipline and a clear chain of command is maintained
within the police and armed forces. All paramilitary or security forces
not directly and strictly under government control should be immediately
disbanded; (c) Governments should consider the establishment of independent
human rights redress mechanisms, such as the Ombudsman institution, with the
authority to take action on behalf of victims of human rights abuses. Such
mechanisms would also serve to increase the transparency of State institutions
and the accountability of public officials; (d) Governments should take
effective action to strengthen the integrity, status and resources of the
judiciary; (e) 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;
(f) no person, regardless of his or her present or past status, function and
position, should be immune from prosecution for gross human rights violations,
including extrajudicial, summary or arbitrary executions. The Special
Rapporteur further believes that a free and independent press can contribute
to curbing impunity by giving publicity to human rights abuses and
scrutinizing the work of the State authorities.
96. The Special Rapporteur welcomes the adoption of the Statute of the
International Criminal Court and believes that the Court will provide an
important complement to national legal systems that are unable or unwilling to
combat impunity by exercising their own jurisdiction. In this context, the
Special Rapporteur strongly recommends that States expedite the establishment
of the International Criminal Court by securing the necessary ratifications of
the Statute adopted by the United Nations Diplomatic Conference in July 1998.
10. Child soldiers
97. The Special Rapporteur deeply regrets the continuing practice of
engaging children under the age of 18 in armed conflict. She strongly
supports the adoption of an optional protocol to the Convention on the Rights
of the Child aimed at prohibiting the recruitment of children under 18 years
of age into the armed forces and armed groups and their participation in armed
conflict. She further urges States to take immediate unilateral action to
raise the age of enlistment to 18 years.
