Legal Observations > Non-State Actors

Violations of the right to life by non-State actors

65. One of the more complex issues arising especially under this mandate concerns killings by non-State actors. The fact that this category is not readily susceptible of a clear definition increases the complexity. Indeed, in recent years the term “non-State actors”, which was long used primarily to describe groups whose purposes are essentially benign such as non-governmental organizations, religious groups and corporations, has increasingly come to be associated with groups whose agendas include wreaking havoc and terror upon innocent civilians.22

66. Although it has not yet come, there will be a time when the international community decides that this category has outlived its usefulness and that it should instead be looking at different ways of dealing with very different actors.

67. Various non-State actors have featured in the reports of previous Special Rapporteurs. Thus, for example, in her 2004 report to the Commission (E/CN.4/2004/7) the Special Rapporteur addressed members of this group under the following three sections of the report: (i) “deaths due to attacks or killings by security forces of the State, or by paramilitary groups, death squads or other private forces cooperating with or tolerated by the State”; (ii) “violations of the right to life of women”; and (iii) “impunity, compensation and the rights of victims”.

68. For understandable reasons, the focus on killings carried out by individuals or groups occupying no official position, and whose actions might even be condemned by the Government, has given rise to some controversy within the Commission. It thus seems desirable to seek to clarify the basis upon which such matters are dealt with in these reports.

69. The most important category of non-State actor within the context of this mandate are those groups which, although not government officials as such, nonetheless operate at the behest of the Government, or with its knowledge or acquiescence, and as a result are not subject to effective investigation, prosecution, or punishment. Paramilitary groups, militias, death squads, irregulars and other comparable groups are well known to the readers of the Special Rapporteur’s reports. There is no legal complexity in relation to this group because insofar as the Government is directly implicated its legal responsibility is engaged.

70. A second group, which is becoming far more numerous and very much a part of the landscape in many of the situations brought to the attention of the Special Rapporteur, is private contractors or consultants who, although not government officials in any way, are nonetheless exercising functions which would otherwise have been carried out by the State. This might include prison management, law enforcement, interrogation, etc. In dealing with such cases the Human Rights Committee has made clear, in relation to torture for example, that States parties to the International Covenant on Civil and Political Rights should report on the provisions of their criminal law not only in relation to acts committed by public officials or persons acting on behalf of the State, but also by private persons.23 In final Views adopted in 2003 the Committee concluded that “the contracting out to the private commercial sector of core State activities which involve the use of force and the detention of persons does not absolve a State party of its obligations under the Covenant”.24 While there may be some debate over what constitutes a “core State activity”, it is clear that actions carried out by contractors and consultants which attract the attention of the Special Rapporteur may well engage the responsibility of the State concerned.

71. Criminal actions might also evolve into a third, and very important, category of non-State actors of relevance to this mandate. Crimes, including murder, carried out by individuals can also give rise to State responsibility in instances in which the State has failed to take all appropriate measures to deter, prevent and punish the perpetrators as well as to address any attitudes or conditions within society which encourage or facilitate such crimes. Two sometimes contested examples include honour killings (as defined in previous reports) and killings directed at groups such as homosexuals and members of minority groups. Other examples which have drawn attention in recent times include sustained attacks on trade unionists, so-called social cleansing of “undesirable” elements, or repeated attacks on professional groups such as doctors who are subjected to extortion demands. Also included in this category would be the activities of any of the groups described in the first category above insofar as it can be shown that there is no element of governmental involvement or complicity in their activities.

72. In most situations, the isolated killing of individuals will constitute a simple crime and not give rise to any governmental responsibility. But once a pattern becomes clear in which the response of the Government is clearly inadequate, its responsibility under international human rights law becomes applicable. Through its inaction the Government confers a degree of impunity upon the killers.

73. The term most frequently used in international legal instruments to characterize the State’s obligations in such contexts is “due diligence”. Its substance was formulated in considerable detail more than 25 years ago in a report to the General Assembly by Abdoulaye Dieye of Senegal in his capacity as an expert in relation to the situation in Chile (A/34/583/Add.1, para. 124). He examined in depth the responsibility of States for acts such as disappearances which are not committed by government officials or their agents. He observed that a State is responsible in international law for a range of acts or omissions in relation to disappearances if, inter alia, the authorities do not react promptly to reliable reports, the relevant legal remedies are ineffective or non-existent, the State does not act to clarify the situation in the face of reliable evidence, or it takes no action to establish individual responsibility within the national framework.

74. This approach was endorsed by the Inter-American Court of Human Rights in a landmark case almost a decade later,25 and the concept of due diligence has since been further developed in a variety of United Nations contexts, especially in relation to violence against women (see, e.g., E/CN.4/2000/68, para. 53).

75. Thus, in taking up the types of issues noted above, the Special Rapporteur is following clearly established principles of international law, and is raising with Governments matters which engage State responsibility, as opposed to the responsibility of individual murderers or other criminals.

76. The fourth major group of non-State actors relevant to the Special Rapporteur’s mandate is armed opposition groups. The traditional approach of international law is that only Governments can violate human rights and thus, such armed groups are simply committing criminal acts. And indeed this may be an accurate characterization. In reality, however, that is often not the end of the matter and in some contexts it may be desirable to address the activities of such groups within some part of the human rights equation.26 This could mean addressing complaints to them about executions and calling for respect of the relevant norms.27 This may be both appropriate and feasible where the group exercises significant control over territory and population and has an identifiable political structure (which is often not the case for classic “terrorist groups”). In cases in which such groups are willing to affirm their adherence to human rights principles and to eschew executions it may be appropriate to encourage the adoption of formal statements to that effect. And in reporting on violations committed by Governments it may be appropriate to provide details of the atrocities perpetrated by their opponents in order to provide the Commission with an accurate and complete picture of the situation. It goes without saying that any such approaches would in no way diminish the central human rights responsibilities of Governments, nor does it seek to give legitimacy to opposition groups. The condemnation of such groups and insisting that they respect international human rights law should not be taken as equating them with States. On the other hand, in an era when non-State actors are becoming ever more important in world affairs, the Commission risks handicapping itself significantly if it does not respond in a realistic but principled manner.

Conclusions

81. International human rights law clearly indicates that killings undertaken by non-State actors can engage State responsibility in a number of different circumstances. The obligation upon Governments to show due diligence in such contexts is of the utmost importance.

22 A More Secure World, for example, focuses extensively on non-State actors but exclusively in terms of the nuclear threat they pose.

23 General comment No. 20 (1992) on art. 7, para. 13.

24 Cabal and Pasini Bertran v. Australia, case No. 1020/2001, decision of 7 August 2003 (CCPR/C/78/D/1020/2001), para. 7.2.

25 Velásquez Rodriguez v. Honduras, Annual Report of the Inter-American Court of Human Rights, OAS/Ser. l./V./III.19, doc. 13 (1988), 28 ILM (1989) 291.

26 See, e.g., the approach of the United States State Department: “[w]e have made every effort to identify those groups (for example, government forces or terrorists) that are believed … to have committed human rights abuses”. United States Department of State, Country Reports on Human Rights Practices 2003 (2004), appendix A.

27 A similar result is achieved in relation to international humanitarian law through the application of common article 3 of the Geneva Conventions of 1949.