Violations of the right to life in armed conflict and internal strife

41.       Recent years have seen a growing number of civilians and persons hors de combat killed in situations of armed conflict and internal strife.  One result has been a general lessening of respect for established and clearly binding international norms.  This is manifested in part by the proliferation of proposals that seek to justify illegal executions.  Thus, it is increasingly common to read arguments along the lines that “targeting and eliminating known terrorists is more efficient and costs fewer lives than waging conventional war”.[1]  While there are a great many empirical arguments that might be made in order to show that such strategies will be counterproductive, the point is that such proposals directly undermine the essential foundations of human rights law.  Empowering Governments to identify and kill “known terrorists” places no verifiable obligation upon them to demonstrate in any way that those against whom lethal force is used are indeed terrorists, or to demonstrate that every other alternative had been exhausted.  While it is portrayed as a limited “exception” to international norms, it actually creates the potential for an endless expansion of the relevant category to include any enemies of the State, social misfits, political opponents, or others.  And it makes a mockery of whatever accountability mechanisms may have otherwise constrained or exposed such illegal action under either humanitarian or human rights law.

42.       There are several responses which need to be made to recent developments, and the Commission can contribute significantly to this effort through its work.  The first is to reject unequivocally the killing of all innocent civilians and non-combatants by no matter whom and in no matter what circumstances.  This includes those struggling against foreign occupation, for whom an exception is sometimes claimed.  But, as the High-level Panel on Threats, Challenges and Change concluded at the end of a detailed analysis of the issue, “the central point is that there is nothing in the fact of occupation that justifies the targeting and killing of civilians”.[2]

43.       The second response is to underscore the fact that efforts to eradicate terrorism must be undertaken within a framework clearly governed by human rights law as well as international humanitarian law, and that executions occurring in the context of armed conflict that violate that framework fall squarely within the remit of the Special Rapporteur.  These issues have assumed particular salience in the past couple of years because they have been contested by some Governments.  The most important responses in this regard have come from the Government of the United States in relation to two sets of allegations.  The first concerned the alleged killing of six men by a “U.S.-controlled Predator drone aircraft” when they were travelling in a car in Yemen.  At least one of those killed was said to have been a suspected senior figure of Al-Qaida.  While there was no armed conflict in Yemen at the time, the United States pointed out that since Al-Qaida was waging war unlawfully against it, the situation constituted an armed conflict and thus “international humanitarian law is the applicable law”.  In its view, “allegations stemming from any military operations conducted during the course” of such an armed conflict “do not fall within the mandate of the Special Rapporteur”, or of the Commission itself (E/CN.4/2003/G/80, annex).

44.       The second set of allegations concerned reports that United States military personnel had used excessive force against civilians in the city of Fallujah, Iraq, in 2003.^[3]  In a subsequent communication the Special Rapporteur expressed concern about reports that United States soldiers had been given orders to “shoot on sight” persons suspected of looting property in Iraq. In reply, the United States Government stated that “inquiries related to military operations conducted by the United States do not fall within the mandate of the Special Rapporteur, which does not extend to the laws and customs of war”, and requested that consideration of the incidents raised be discontinued.[4]

45.       These responses raise a number of matters which warrant clarification.  The first concerns the place of humanitarian law within the Special Rapporteur’s mandate.  The fact is that it falls squarely within the mandate.  All major relevant resolutions in recent years have referred explicitly to that body of law.  Most recently, the General Assembly, in resolution 59/197 of 20 December 2004, dealing with the mandate of the Special Rapporteur, urged Governments “to take all necessary and possible measures, in conformity with international human rights law and international humanitarian law, to prevent loss of life … during … armed conflicts” (para. 8 (b)).  Consistent with this approach, every single annual report of the Special Rapporteur since at least 1992 has dealt with violations of the right to life in the context of international and non-international armed conflicts.[5]

46.       The second matter concerns the applicability of the right to life in a situation such as that under which United States troops were operating in Iraq in 2003.  The right to life in article 6 of the International Covenant on Civil and Political Rights, to which both the United States and Iraq are parties, is non-derogable.  Thus, the existence of an armed conflict does not per se render the Covenant inapplicable in the territory of a State party.  The Human Rights Committee has held that a State party can be held responsible for violations of rights under the Covenant where the violations are perpetrated by authorized agents of the State on foreign territory, “whether with the acquiescence of the Government of [the foreign State] or in opposition to it”.[6]

47.       In 2004 in an Advisory Opinion the International Court of Justice approved of the Human Rights Committee’s reasoning and held that the Covenant “is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory”.[7]  It follows that any case involving the arbitrary deprivation of life of Iraqi or other nationals by United States military personnel (or other authorized government agents) may amount to a violation of the Covenant and would thus fall squarely within the Special Rapporteur’s mandate.

48.       The third matter concerns the relationship between human rights law and humanitarian law.  The implications of the United States position in this regard would appear to be twofold:  (i) extrajudicial, summary or arbitrary executions, falling within the Special Rapporteur’s mandate, can take place only in situations where international human rights law applies; and (ii) where humanitarian law is applicable, it operates to exclude human rights law.

49.       Acceptance of this analysis would dramatically reduce the mandate of the Special Rapporteur since so many of the executions brought to his attention take place in contexts of armed conflict.  It would mean that in many situations in which a Government declares itself to be under attack and argues that the resulting conflict is governed by the laws of armed conflict, the applicability of human rights law would be entirely excluded.

50.       This proposition is not supported by general principles of international law.  It is now well recognized that the protection offered by international human rights law and international humanitarian law are coextensive, and that both bodies of law apply simultaneously unless there is a conflict between them.  In the case of a conflict, the lex specialis should be applied but only to the extent that the situation at hand involves a conflict between the principles applicable under the two international legal regimes.  The International Court of Justice has explicitly rejected the argument that the International Covenant on Civil and Political Rights was directed only to the protection of human rights in peacetime:

“... [T]he protection of the International Covenant of Civil and Political Rights does not cease in times of war, except by operation of Article 4 [derogation in a time of national emergency].  Respect for the right to life is not, however, such a provision.  In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities.  The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities.[8]

51.       The Court repeated and approved of this passage in its 2004 Advisory Opinion.[9]

52.       It follows that the application of international humanitarian law to an international or non-international armed conflict does not exclude the application of human rights law.  The two bodies of law are in fact complementary and not mutually exclusive.

53.       One additional matter warrants particular attention in this context.  Governments which are criticized for violating the right to life under human rights law or for failing to respect humanitarian law by killing civilians who are not directly taking part in hostilities sometimes announce that they have initiated an investigation into the relevant incidents.  In such cases it is essential that the results of the investigation be published, including details of how and by whom it was carried out, the findings, and any prosecutions subsequently undertaken.  Broad, general statements of findings, or non-disaggregated information as to the number of investigations and prosecutions, are inadequate to satisfy the requirements of accountability in such contexts.  Formalistic investigations are almost always the precursors of a degree of impunity.

54.       Remedial proposals to inculcate higher “ethical” standards or to develop a greater “moral” sensibility in the offending military personnel are also inadequate.  Respect for human rights and humanitarian law are legally required and the relevant standards of conduct are spelled out in considerable detail.  Remedial measures must be based squarely on those standards.

IV. CONCLUSIONS AND RECOMMENDATIONS

A.  Conclusions

77.       Executions involving violations of international humanitarian law fall squarely within the mandate of the Special Rapporteur. 

78.       The application of international humanitarian law to an international or non‑international armed conflict does not exclude the application of human rights law.  The two bodies of law are thus complementary and not mutually exclusive.

79.       A State can be held responsible for violations of human rights that are perpetrated by authorized agents of the State on foreign territory.

B.  Recommendations

84.       Proposals seeking to justify or rationalize the arbitrary execution or targeted assassination of individuals alleged to have committed crimes or to be linked to terrorism involve a fundamental undermining of international human rights law and should be condemned without reservation.

85.       The Commission should reject unequivocally the intentional killing of all civilians and non-combatants, no matter by whom and no matter what the circumstances.

86.       National-level investigation of alleged violations of international law by the armed or security forces are indispensable.  To be credible and acceptable, however, the results must be made public, including details of how and by whom the investigation was carried out, the findings, and any prosecutions subsequently undertaken.