Reporting Killings as Human Rights Violations Handbook

Reporting Killings as Human Rights Violations Handbook

How to document and respond to potential violations of the right to life within the international system for the protection of human rights

By Kate Thompson and Camille Giffard

Handbook links: website home page
Table of Contents - Search - Part I: Essential Reading - Part II: Identifying a Potential Violation - Part III: How to Document Allegations of Unlawful Killings - Part IV: Responding to the Information Collected - Part V: Where can you Seek Further Help? - Appendices
II. Identifying a Potential Violation: section links...
1. Introduction - 2. Legal Context - 3. The Right to Life - 4. Patterns of Violation - 5. Is There a Violation? - Summary of Part II

PART II - IDENTIFYING A POTENTIAL VIOLATION

3. THE RIGHT TO LIFE

The right to life is guaranteed in all international and regional human rights instruments. There are some variations in formulation, but it is universally accepted that the individual has a right not to be arbitrarily or unlawfully killed by the state.

 

The Right to Life: International Standards

Article 3 Universal Declaration of Human Rights
Everyone has the right to life, liberty and security of person.

Article 6(1) International Covenant of Civil and Political Rights
Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

Article 4 African Charter of Human and Peoples' Rights
Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No-one shall be arbitrarily deprived of this right.

Article 4 American Convention on Human Rights
Every person has the right to have his life respected. This right shall be protected by law and, in general from the moment of conception. No-one shall be arbitrarily deprived of his life.

Article 2 European Convention on Human Rights
1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
a) in defence of any person from unlawful violence;
b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
c) in action lawfully taken for the purpose of quelling a riot or insurrection.

The right to life is considered so fundamental that it can never lawfully be restricted, even in times of war or emergency. The absolute nature of this right does not, however, mean that it is never lawful for the state to kill. What is prohibited is the arbitrary or unlawful deprivation of life. This means that there are a number of accepted exceptions to the presumption that the state must not kill. These are:

Consequently, if an allegation is made of a violation of the right to life, it must be shown not only that the death occurred, but also that it was arbitrary or unlawful - that it does not fall within one of those lawful exceptions.

The obligation on the state to guarantee the right to life goes well beyond the mere obligation to refrain from killing. It is composed of four major elements:

The right to life may thus be viewed as a continuing duty of the state to create general conditions and systems protecting the right to life, and as a specific duty, to fulfil those conditions and use the systems in each individual case. Each of these elements will be addressed in turn. It is essential, when submitting an allegation of violation of the right to life, to remember to consider all aspects of the potential violation.

The central focus of any allegation is establishing the responsibility of the state for the breach of one of the obligations flowing from the right to life, making a link between the state and the circumstances surrounding the death. As will be seen in more detail below, this does not always mean being able to prove that state officials carried out the killings in person, which can be very difficult to do. Since the right to life encompasses positive obligations to prevent killings, to conduct an effective investigation where a suspicious death has occurred, and to provide an effective remedy where a death has occurred at the hands of state officials, it may be enough to provide evidence of, for example, the state's failure to act, or of the inadequate nature of the investigation, in order to establish the responsibility of the state.

A useful distinction is to think in terms of direct and indirect responsibility. Where it can be shown that state officials are directly implicated in the killing, that there was a deliberate intent as to the outcome (the death), and that the killing did not fall within one of the lawful exceptions, then the state can be held responsible for a violation of the prohibition of arbitrary killing. Where the state has failed to take measures to prevent a death from occurring, or has failed to carry out an effective investigation or to provide an effective remedy, the element of intent is much more difficult to establish. In such cases, it is necessary to rely on the concept of indirect responsibility, that although the state may not have intended for the specific death to occur, it has failed in its associated obligations to create and implement systems designed to ensure that such deaths do not occur. This distinction is not so clear-cut in practice. A failure to intervene to prevent a death, for example, of one detainee at the hands of another, can be as deliberate as pulling a trigger, but it is extremely difficult to provide evidence of intent in such circumstances. For the purposes of this handbook, the right to life is considered in terms of distinct categories, but it is essential to be aware that in practice there are many grey areas, and that it is always worth trying to argue that the state is directly responsible, if evidence exists which can be used to show deliberate intention that the death occur.

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3.1. Prohibition of arbitrary killing

The starting point of the prohibition of arbitrary killing under human rights law is that state officials should not kill. As previously mentioned, however, there are certain strictly controlled exceptions which mean that not all deaths at the hands of state officials are unlawful. This means that there are two major elements which need to be addressed when alleging that the state has violated the prohibition of arbitrary killing: the first is to establish that state officials were directly responsible for the death, the second, is to be able to show that the killing does not fall within one of the lawful exceptions.

If you wish to allege that the state has violated the prohibition of arbitrary killing, you need to be able to show that state officials were directly responsible for the death, that there was a deliberate act or omission on their part which was intended to result in the death. The direct involvement of the state official can occur at a number of levels: it can relate to the carrying out of the killing itself, e.g. shooting the victim, inflicting the torture that causes the death, or planting the car bomb that blows up the victim, or it can relate to the giving of an order to kill, even where the killer is not necessarily a state official - for example, if a detainee is bribed by a prison officer to kill another prisoner, the prison officer can be considered responsible for the death. Acts not actually resulting in death, such as threats to kill or unsuccessful attempts on life, may also amount to violations of the prohibition of arbitrary killing where state officials are directly responsible for them. They would also amount to a failure by the state to protect the right to life.

For reasons explained in Part I, Chapter 1, the death penalty will not be considered in this handbook. This means that for the purposes of reporting killings as human rights violations, it is necessary to examine the circumstances under which a killing can be lawful in the context of law enforcement, and those under which it is lawful in a situation of armed conflict.

3.1.1. Law enforcement

3.1.1.1. Basic principles

Law enforcement officials are those officials who exercise police powers, especially the powers of arrest and detention. Where the military or other security forces are called upon to carry out police functions, they are included within the definition. Policing situations can include the prevention of a crime, the apprehension of a suspect, preventing an escape by a suspect, or the containment of a crowd, among many others. Because there is so much potential for abuse under such circumstances, the use of force by officials in carrying out their functions is very limited and strictly regulated. In particular, the lawfulness of the use of lethal force in the fulfilment of these functions revolves around compliance with the principles of legitimate purpose, strict necessity and proportionality of the force used, and will need to be assessed on the facts of each individual case. The general rule on the use of force can be found in the Code of Conduct for Law Enforcement Officials (see Part II, Chapter 2, for a note on the legal status of this type of instrument). It states that force may be used by law enforcement officials 'only when strictly necessary and to the extent required for the performance of their duty'. In other words, the use of force by law enforcement officials should be an exceptional measure, to be used only for the prevention of crime or in carrying out lawful arrests, and only to the extent reasonably necessary under the circumstances. More specific guidelines, in particular on the use of firearms, are contained in the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (see Part II, Chapter 2, for a note on the legal status of this type of instrument), which set out a list of safeguards which must be respected regarding the manner in which the firearms are used, and the procedures which must be followed every time a firearm is used.

Legitimate purpose:

Force may only be used by law enforcement officials in the performance of their duty, which means for the prevention of crime or in carrying out a lawful arrest. The use of firearms, which is considered a particularly extreme measure, is restricted to an even narrower range of circumstances. Firearms may not be used against persons except for one of the following reasons:

Strict necessity:

Even where a legitimate purpose is being pursued, the use of force is only lawful where it is strictly necessary under the circumstances. In other words, if lesser means would have been sufficient to fulfil the same objective, the resort to force is unlawful even for a legitimate purpose. Non-violent means should be applied as far as possible before resorting to the use of force and firearms, the latter being used only if other means are ineffective or could not possibly achieve the desired objective. The test of necessity for the intentional lethal use of firearms is even stricter: it may only be used where it is strictly unavoidable for the protection of life.

Proportionality:

Even where the use of force is for a legitimate purpose and is considered strictly necessary under the circumstances, it must still be used only to the minimum extent necessary to achieve the objective. The amount of force used must be proportionate to the objective pursued and the seriousness of the offence involved. For example, whereas it might be proportionate to use a firearm to prevent the escape of an individual who has committed a murder, it would almost certainly be disproportionate to take the same measure to prevent the escape of an unarmed youth caught in the act of spraying graffiti on a wall.

Safeguards:

In addition to specifying the need for restraint and proportionality in the use of force, the Basic Principles provide that where the use of force and firearms is unavoidable, law enforcement officials are still expected to minimise damage and injury, and respect and preserve human life. They should also ensure that assistance and medical aid are provided to any injured persons as soon as possible, in order to minimise the likelihood of complications or loss of life resulting from the injury.

Where a decision is made that firearms are to be used against persons, in pursuit of one of the legitimate purposes previously noted, and where less extreme means are inadequate, the emphasis continues to be placed on making sure that there is no alternative to the use of firearms. Law enforcement officials must identify themselves as such and give a clear warning of their intention to use a firearm. Sufficient time must be given following the warning for it to be acted upon, unless this would place the law enforcement officials, or other persons, at risk of death or serious harm, or if it would be clearly inappropriate or ineffective in the particular circumstances. Failure to respect these safeguards suggests that an opportunity was missed to ensure that the use of force was indeed unavoidable.

The lawfulness of any resort to the use of force or firearms in law enforcement needs to be approached in stages. If this is done systematically, it may be possible to discover failures or avoidable errors in the decision-making process or in the carrying out of the killing. It is essential to know as many precise facts and details as possible about the incident, as the state will usually seek to show that the killing was lawful, that it was carried out by a law enforcement official for a legitimate purpose, that it was necessary, that it represented a proportionate response and that all the proper safeguards were respected. It is only through a close examination of the facts that it can be argued that this was not the case.

RELEVANT PRINCIPLES:
Code of Conduct for Law Enforcement Officials, Articles 1-3
Basic Principles on the Use of Force and Firearms by
Law Enforcement Officials, Principles 4-5, 9-10

 

Approach to analysing the lawfulness of killings in a law enforcement context:

Legitimate purpose: Does the stated purpose for which the force was used fall within one of the permitted law enforcement objectives?
i.e. Was the force in question applied for the prevention of crime or in the carrying out of a lawful arrest?

If firearms were used, was it:

  • In self-defence or the defence of others against an imminent threat of death or serious injury
  • To prevent the perpetration of a particularly serious crime involving a grave threat to life, or
  • To arrest a person presenting such a danger and resisting arrest or to prevent his/her escape?

If the answer to any of these question is no, the use of force was unlawful.
If yes, further questions need to be asked.

Strict necessity: Could the same purpose have been achieved without resorting to the use of force?
If yes, the use of force was unlawful.
If no, further questions need to be asked.

Proportionality of response: Could the same purpose have been achieved by using a lesser degree of force?
If yes, the use of force was unlawful.
If no, the use of force was lawful.

A killing by a law enforcement official is lawful where:

  • the force used was applied for a legitimate purpose
  • its use was strictly necessary, AND
  • the degree of force used was proportionate under the circumstances.

These questions can only be answered through a thorough examination of the facts. The state will argue that the conditions were complied with. Use the facts to show that this was not the case.

 

3.1.1.2. Potential violations

Abuses by law enforcement officials could occur in their dealings with individuals, or they could occur in the context of policing gatherings of people.

In the case of individuals, the rules that apply will be those set out in the basic principles - the need for a legitimate purpose, strict necessity of the use of force, and proportionality of the degree of force used, as well as the obligation to follow proper safeguard procedures. Resort to the use of force could arise in the prevention of a crime, during an arrest, during a transfer, in order to foil an escape attempt, or during custody. The prevention of a crime could involve a pre-planned policing operation, for example, a complex operation to catch suspected drug smugglers or members of an organised crime syndicate, or it might involve intervening to stop a crime which is in the process of being committed, for example, an assault or a pick-pocketing incident. An arrest might result from police intervention to prevent a crime in a scenario like those already mentioned, or it might involve an order to arrest an individual who is suspected of involvement in a crime, and take place at the person's home, workplace or in the street. A person might be transferred from the place of arrest to a police lock-up, from a police station to a prison, from one prison or other place of custody to another, from a place of custody to a hospital or, in order to appear before a court or judge. An escape attempt, real or alleged, might take place during any of these scenarios. The potential for abuse, finally, exists during any period when an individual is in the custody of law enforcement officials, in whichever place of detention that might be. The risk, which exists in institutions and places of custody, is considered separately, and is somewhat different in nature to that which exists during active policing. The common factor in all the scenarios touched upon, and other similar instances, is that law enforcement officials are in a heightened state of alert and the individuals at risk are those who pose an obstacle to the fulfilment of law enforcement objectives. In such circumstances, law enforcement officials may well resort to the use of force, which can result in death. They may also interpret an innocent action by the victim as an attempt to cause a risk to life or to escape, or claim that their response was to such an attempt, even where it was not. Once again, it is crucial to examine the facts, to see if there was indeed an escape attempt or a risk to life created by the victim.

In the context of policing unlawful gatherings of people, the basic principles apply but there are also some rules specific to such situations. A distinction is made between violent and non-violent assemblies. Where an assembly is non-violent, the use of force must be avoided and, if this is not practicable, must be restricted to the minimum degree necessary. In the case of assemblies involving violence, the limitation is on the use of firearms rather than the use of force - there is an implication that force may be used, but it is made clear that firearms, which are potentially lethal, may be used only where it is not possible to use less dangerous means, and only to the minimum extent necessary. Where firearms are used, the principles of legitimate purpose, strict necessity and proportionality must be respected. The understanding that lesser forceful measures may be used under such circumstances has implications for the state in terms of making available, to its law enforcement officials, the means for a graduated response, as will be noted below when addressing the state's obligation to protect.

RELEVANT PRINCIPLES:
Basic Principles on the Use of Force and Firearms by
Law Enforcement Officials, Principles 12-14

3.1.2. Institutions

3.1.2.1. Institutions within the criminal justice system

The rules for policing persons in custody or detention are based on similar principles to those applying to law enforcement generally, but adapted to the particular context.

Force may only be used where it is strictly necessary for the maintenance of security and order within the institution, or when personal safety is threatened. It is only to be used in self-defence or in cases of attempted escape, or active or passive resistance to an order based on law or regulations. Firearms, in particular, may only be used in self-defence or in the defence of others against the immediate threat of death or serious injury, or when strictly necessary to prevent the escape of a person in custody likely to commit a particularly serious crime involving grave threat to life. Again, we find the concepts of legitimate purpose and strict necessity. Where force is used, it must be no more than is strictly necessary, in other words proportionate under the circumstances, and any incident must be reported immediately to the director of the institution. These rules are applicable both to relations with individual prisoners and in the context of group violence within the institution.

In addition to rules on the use of force, persons deprived of their liberty are entitled to the protections contained in the Standard Minimum Rules on the Treatment of Prisoners (see Part II, Chapter 2, for a note on the legal status of this type of instrument). Many of these are more relevant to the state's obligation to protect the right to life, but some of the rules, where abused and resulting in death, have the potential to give rise to direct responsibility. These relate primarily to the infliction of punishment and the application of instruments of restraint.

Corporal punishment, punishment by placing in a dark cell, and all cruel, inhuman or degrading punishments are absolutely prohibited as punishments for disciplinary offences. Any punishment which may be damaging to a prisoner's mental or physical state, including punishment by close confinement or reduced diet, may never be imposed without an examination and written certification by a medical officer that the prisoner is fit to undergo the punishment. The medical officer must also make daily checks on any prisoner undergoing such punishment with a view to advising the director of the institution if the prisoner's physical or mental health requires termination or alteration to the punishment. Thus, for example, if a punishment is deliberately inflicted on a prisoner in spite of a warning by the medical officer that it poses a risk to the prisoner's health, and the prisoner dies as a result, it may be possible to argue that the officials are directly responsible.

The use of certain instruments of restraint is authorised under limited circumstances. It is never allowed as a punishment. Chains and irons are never to be used. Other instruments, such as handcuffs and straight-jackets, may be used only as a precaution against escape during a transfer (though they must be removed while the prisoner appears before a judicial or administrative authority), on medical grounds on medical advice, or by order of the director of the institution where other methods of control prove unsuccessful in order to prevent injury by the prisoner to himself or others or to prevent damage to property. In the latter instance, a medical officer must immediately be consulted and the higher authorities informed. Where applied, restraints must be removed as soon as they are no longer strictly necessary. Policy on the use of instruments must be determined by the central prison administration, another obligation with implications for the state's duty to protect the right to life. Some instruments of restraint may pose a greater risk to certain prisoners. For an example, the use of a straight-jacket on an agitated prisoner who is known to suffer from major asthma attacks under stress could potentially cause death.

A further point to note is that there tends to be a presumption that where a person is taken into official custody in good health, and is injured or dies while in custody, the state has a duty to account for the death or injury. This presumption is well established within the European human rights system (discussed in Part IV) and can be argued elsewhere. Any death in custody must therefore, be investigated. Where the death cannot be explained, or the explanations are unsubstantiated, for example, where it is alleged that the prisoner was killed while attempting to escape or to attack a prison official, but there is no evidence to support this, it is possible to argue that the state is directly responsible for the killing.

RELEVANT PRINCIPLES:
Basic Principles on the Use of Force and Firearms by
Law Enforcement Officials, Principles 15 - 17
Standard Minimum Rules for the Treatment of Prisoners 31-34, 54

3.1.2.2. Institutions outside the criminal justice system

Although most of the deaths likely to be reported as human rights violations will occur in the context of law enforcement and the criminal justice system, there is a potential risk to life in any institution where persons are under the authority of state officials. These can include psychiatric hospitals, reception centres for asylum seekers and refugees, children's homes, or institutions for the elderly or the handicapped. Suspicious deaths which occur in such contexts may also amount to human rights violations where it can be established that a state official deliberately caused the death, for example, through serious physical abuse.

Where a deliberate killing by a state official occurs outside the law enforcement context, there is no question of the killing falling under one of the lawful exceptions (lawful killings in the context of law enforcement, or lawful acts of war). The governing law would be the national law on murder and manslaughter. In many systems, this will provide for a defence to such offences on grounds of self-defence or the defence of the life of others. Where a killing by a state official occurred in such circumstances, it is more likely to raise issues of indirect, rather than direct, responsibility, as is the case where death occurs as a result of neglect or of an omission. Where the killing was not in response to an immediate threat to life, and it can be demonstrated that the state official deliberately caused the death, there is scope to argue that the state should be held directly responsible. This is an area of state responsibility which is not well established, however, and it may well be more fruitful to examine such deaths in the context of the state's failure to protect the right to life, for example, on the basis that the state failed to introduce adequate screening procedures for employees or that the legislation protecting the right to life is not effectively implemented by the courts (e.g. where a plea of self-defence by a state official is automatically accepted without challenge by the judge).

3.1.3. Military operations

Operations involving military personnel can take place in peace time, in which case the governing international law relating to the protection of the right to life is human rights law, as usual. Where military operations take place in the context of an armed conflict, however, the applicable law becomes more complex. In such situations, human rights law continues to apply with some modifications, but the law of armed conflict (ILAC) also comes into operation in parallel with human rights law. This means that there are two sets of rules to consider in relation to the lawfulness of killings in times of armed conflict.

3.1.3.1. Applicable human rights rules

In times of armed conflict or other form of public emergency, it is lawful for states to take measures restricting the scope of certain human rights. The right to life, however, is one of a small core of rights which cannot be limited for any reason, even in time of war. However, since the prohibition is of killings which are arbitrary or unlawful, the concept of lawfulness has to expand to include killings which are permitted under the law of armed conflict. As will be seen below, the major consequence flowing from this is that members of the armed forces are legally entitled to kill members of the opposing armed forces or fighting group. For the purpose of understanding how this impacts upon the lawfulness of a killing in times of armed conflict, this means that where the killing has been carried out by a member of the armed forces, or any other state official who is carrying out military functions at the time of the killing, it is the rules of ILAC which must be applied to the analysis. Where the killing is carried out by a state official who is not a member of the armed forces (i.e. a civilian or a law enforcement official) and was not carrying out military functions at the time of the killing, it is the human rights analysis, which must be considered.

3.1.3.2. Applicable ILAC rules

The law of armed conflict is an extremely detailed body of law, further complicated by the fact that its provisions vary according to whether the armed conflict is international or non-international in character. For the purposes of this handbook, the rules which must be extracted from it are those necessary to assess the lawfulness of a killing, in other words those which provide the answers to the following questions:

The principal distinction between human rights law and ILAC, from the point of view of the lawfulness of killings, is that under human rights law lethal force should be a measure of last resort, to be used only after all other means have been attempted or would be pointless, or where the danger to life is so great that there is no time for any lesser reaction. The basic rule is that there should be a graduated response, an attempt to detain, the issuing of warnings, the use of non-lethal force, and finally, the use of lethal force where there is no other choice. Under ILAC, there is no obligation to adopt a graduated response or to seek to detain because it is lawful for members of the armed forces to kill, provided they respect the rules on who they target and how they carry out their attacks.

What is an armed conflict?

The law of armed conflict applies whenever an armed conflict is taking place. The determination of what level of violence needs to exist in order for a situation to be categorised as an armed conflict is in itself a controversial matter beyond the scope of this handbook, and many states prefer to deny that a conflict is talking place. Sometimes, especially in the context of international armed conflict, those wishing to increase protection for the victims of armed conflicts will seek to argue that ILAC applies even at low levels, as its provisions are much more detailed than human rights law. For the purposes of analysing the lawfulness of a killing, however, it is not necessarily disadvantageous to be guided by the position taken by the government in question. If it denies the existence of an armed conflict, the logical consequence is that lawful exceptions to the prohibition of unlawful killing do not need to include killings that would be lawful under the law of armed conflict, since it is not applicable. This makes the protection of the right to life stronger. If the government accepts that an armed conflict applies, on the other hand, the ILAC analysis can be followed.

Killings in international conflict

International conflict is that which takes place between two or more states. Although this may seem like a fairly straightforward concept, it can often be complicated by many factors, for example, where an outside state provides support to an opposition group in a conflict against its own government. The relevance of the distinction between international and non-international conflict is that the rules are not the same for each, with the rules in international conflict being, by far, the most detailed. Consequently, if a situation is not clear-cut, it is desirable to seek to argue that a conflict is international in character, provided that evidence exists to support such a claim. The principal conventions, which apply in international armed conflict, are the four Geneva Conventions of 1949 and their First Additional Protocol of 1977 on the Protection of Victims of International Armed Conflicts.

Who can lawfully kill?

Only combatants are lawfully entitled to kill, their objective being to weaken the military force of the enemy. Combatants are all members of a state's armed forces. Civilians, medical personnel and other protected persons, are entitled to use force only in self-defence. This may result in death, but their sole objective should be defence of their own or someone else's life.

Who can lawfully be killed?

The only legitimate targets are those who are participating in the fighting. Primarily this means members of the armed forces, but it can also include other persons who have forfeited protected status by joining in the fighting. Protected persons are all those who are not (or are no longer) involved in the fighting - civilians, wounded, sick and shipwrecked members of the armed forces, prisoners of war. Such persons can never be intentionally targeted. If protected persons take up arms, they lose their special status and can then be attacked because they are contributing to the military effort. This loss of protection lasts only for as long as they are fighting. There is a presumption of protected status, so that where there is doubt as to whether or not someone is a civilian, they must be treated as a civilian unless there is evidence to the contrary.

If civilians, or other protected persons, are killed as a result of an attack on a legitimate target (see below), this is not necessarily unlawful, provided the rules on the conduct of operations were respected. What is unlawful is either the deliberate targeting of protected persons or their incidental death, where the rules on targeting were breached.

How should the killing be carried out in order for it to be lawful?

The need to distinguish between those who can be targeted (combatants) and those who cannot (protected persons) means that attacks must take into account the likelihood that protected persons will be affected. The intended target must be a military objective (an object which is making an effective contribution to the military action, such as a tank, a former school building being used to shelter troops, an ammunition dump, objects which would be militarily useful to attack) and any likely loss of civilian life must not be excessive in relation to the military advantage expected from the attack - it must be proportionate. This means that when selecting a target and how to attack it, a balancing exercise must be made between the military advantage expected and the likelihood of incidental loss to civilian life. An attack would be unlawful where, for example, it was foreseeable that the loss of civilian life would be excessive, yet it was carried out anyway, if a weapon was used which could not be directed accurately at the military objective and resulted in civilian deaths, or if a weapon was not directed at any specific military objective and resulted in civilian deaths. At the planning and decision-making level, this also means that there is a duty to do everything feasible to verify that a target is indeed a military objective, to take care in the choice of weapons and to take steps to minimise the incidental effects on civilians. In case of doubt about the use to which an object that is normally civilian (e.g. a school building) is being put, it should be presumed to be civilian.

Killings in non-international conflict

A non-international conflict is that which takes place within the territory of a single state, and involves either governmental forces and one or more opposition forces, or only non-governmental forces divided into opposing factions. The relevant provisions of ILAC are those of Common Article 3 to the 1949 Geneva Conventions, as well as their Second Additional Protocol on the Protection of Victims of Non-International Conflicts. Unlike human rights law, which binds only states, ILAC is binding on, and can be invoked against, non-state forces in a non-international armed conflict.

Who can lawfully kill?

States are reluctant to grant rebel groups and opposition movements any legitimacy. This concern is reflected in the rules governing non-international armed conflict, which do not address the concept of who is a combatant. Consequently, the answer to the question 'who can lawfully kill?' is not found in the law on non-international armed conflict. The issue in this context, in terms of the lawfulness of a killing, is not entitlement to kill but who was killed and the way in which the killing was carried out.

Who can lawfully be killed?

The protections in non-international armed conflict are much less detailed than in international armed conflict, but the basic rule is the same. Persons not taking an active part in the fighting, be that civilians, wounded, sick and shipwrecked members of the armed forces, medical personnel or those in detention, cannot be deliberately targeted or murdered. A particular complication arises in areas where there is guerrilla activity, as fighters are then often difficult to distinguish from civilians. In such cases, it is essential to gather as many facts as possible in order to establish what categories of persons or objects the armed forces, responsible for the killing, believed they were targeting and what measures they took to verify their belief.

How should the killing be carried out in order for it to be lawful?

There are no detailed rules on targeting in the law applicable to non-international conflict but, as in international armed conflict, civilians must not be made the object of attack, and there is an obligation to distinguish between fighters and civilians in attack. Consequently, attacks should only be directed against military personnel and objects, and precautions must be taken to ensure that the choice and use of weapons makes this possible.

Approach to analysing the lawfulness of killings in the context of military operations:

Is there an armed conflict?

  • If not: human rights law applies as usual
  • If yes: both human rights law and the law of armed conflict apply

Was the killing carried out by a member of the armed forces or some other state official carrying out military functions?

  • If not: a human rights law analysis should be used
  • If yes: an ILAC analysis should be used

Is the armed conflict international or non-international?

  • If international: the rules on international armed conflict should be applied
  • If non-international: the rules on non-international armed conflict should be applied

 

3.1.4. Deaths resulting from torture

Torture is a particularly serious human rights violation in its own right and all the more so if it results in death. Torture is defined in Article 1 of the UN Convention Against Torture as

"any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."

The three essential elements constituting torture are thus:

Torture can be inflicted in the exercise of law enforcement activities, for example, at the time of arrest, during transfer from one place to another, in a police lock-up or during an interrogation, or it can occur in an institutional context, whether punitive or non-punitive in nature, for example, in a prison or in an institution for the mentally-ill. It may not be expressly intended to result in death, but if the torture is so severe that it does so, or medical treatment is withheld from a person who has been gravely injured as a result of torture and that person subsequently dies, the action is sufficiently deliberate and the death sufficiently foreseeable to give rise to direct responsibility.

Torture can be the sole cause of the death or it could be combined with other factors relating to the conditions of detention such as, deprivation of, or inadequate medical treatment, deprivation of food and water or exposure to extremes of temperature. One of the major difficulties with the documentation of torture is often the lack of physical evidence that the torture has occurred. Where the torture is so severe that it results in death, the evidence is more difficult to conceal, as the marks on the body do not have an opportunity to fade.

Where torture results in death, both the right to life and the right to be free from torture have been violated. This makes available a greater range of international mechanisms than those available where there is just a violation of the right to life, for example the Committee Against Torture or the UN Special Rapporteur on Torture. Torture is a crime subject to universal jurisdiction, which means that perpetrators can be tried by any state, or must be given up for trial at the request of another state. It can also be a war crime if it takes place in a situation of armed conflict, or a crime against humanity if it occurs as part of a widespread or systematic attack.

A companion volume to this handbook, The Torture Reporting Handbook, focuses specifically on the documentation and reporting of allegations of torture, and reference details can be found in Appendix II.

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3.2. Obligation to protect the right to life

The right to life is considered so fundamental that the state has an express obligation not only to refrain from directly engaging in arbitrary or unlawful killings, but also to take positive measures to protect the right. This means, in the first instance, that the state must adopt legislation to criminalise murder and other forms of killing, but the obligation extends much further, requiring the creation and implementation of systems designed to reduce the risk to life, both from the activities of state officials and, under certain circumstances, from private persons.

3.2.1. General obligation to protect

The general obligation of the state is to create an environment in which the right to life is protected, both from abuses by officials and from killings by private persons. This means that legislation must be adopted criminalising murder and other forms of killing, but it also means ensuring that this prohibition is respected. This applies at many levels. There must be awareness among state officials and the general population that the prohibition of arbitrary killing exists. This means incorporating such awareness-raising into training programmes, in particular for law enforcement officials and all those carrying out such functions. It is insufficient for the prohibition merely to exist as a formality. Steps must be taken to ensure that, where the prohibition is not respected, there is no impunity. There must be supervisory systems in place which ensure that abuses by officials are noted and followed up. There must be a penalty for committing the offence which takes into account the seriousness of the act. Where an allegation is made of an unlawful killing, there must be an effective investigation (which will be considered in more detail below). The judiciary must not treat officials differently from other persons, and if an official is found guilty of an unlawful killing, the penalty must be applied appropriately. In other words, the prohibition must be effectively enforced.

There are also less well-developed aspects of the protection of the right to life, mostly relating to the extent to which the state must take positive steps to regulate the activities of private actors, for example, those of corporations or employers, or the steps to actively reduce mortality and increase life expectancy. These aspects are beyond the scope of this handbook, which is concerned specifically with killings.

One final aspect, which is best considered as part of the general obligation to protect the right to life, is the question of deportation or extradition of persons to a country where there are substantial grounds for believing that they may be at risk of being arbitrarily killed. The UN Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions would prohibit this, and the international human rights mechanisms have taken the view that this would be in violation of the state's obligation to protect the right to life and the prohibition of torture and other ill-treatment, although it is not specifically mentioned in the provisions on the right to life. Possibilities for taking action to prevent such deportations are addressed in Part IV.

3.2.2. State officials and the obligation to protect

3.2.2.1. Law enforcement

As previously noted, law enforcement operations pose the greatest risk of arbitrary deprivation of life at the hands of state officials. How can the state act to minimise the risks in this context? Its duty to protect life is most relevant in the context of actions preceding a killing (such as the planning of a security operation, decisions relating to the equipment provided to law enforcement officials and the training of police officers in the use of firearms), but actions which take place after a death (e.g. medical examination of the cause of death, investigation of the suspected killer, fair and independent trial of the suspect) also contribute to effective protection, as they operate as deterrent measures which contribute to the prevention of impunity. Obligations relating to the effective investigation of suspicious deaths and the provision of a remedy for violation are addressed separately (see Sections 3.3. and 3.4.). The state's obligation to protect, in the context of law enforcement, is both general and specific in nature. It involves the adoption of general measures to minimise abusive use of force in law enforcement, as well as an ongoing obligation to take precautions in relation to each individual operation.

General measures

General measures to minimise abusive use of force in law enforcement involve the development of an appropriate regulatory framework on the use of force, the proper selection and training of personnel, the provision of appropriate equipment, and the establishment of internal systems of monitoring and enforcement.

Rules and regulations on the use of firearms by law enforcement officials should be detailed and should set out, very clearly, the circumstances under which it is lawful to carry and use firearms. They should specify which types of firearms and ammunition are permitted, prohibiting those which present an excessive risk, regulate their control, storage and issuance and ensure that officials must account for any use of equipment issued to them. The rules must also specify the manner in which firearms are to be used, through the giving of warnings where appropriate, and other ways in which to reduce the likelihood of unnecessary harm. The importance of having such detailed rules is to reduce the need for officers to use their own discretion in deciding whether or not to resort to potentially lethal force. They will, of course, need to assess the facts and circumstances themselves, but a good set of regulations should make it possible for a law enforcement official, once he or she has categorised a situation, to know immediately if it is one in which it is lawful and appropriate to use force, especially firearms.

Proper selection procedures should be in place to ensure that the personnel employed as law enforcement officials are fit to perform their functions, something which should also be kept under periodic review. They should be provided with extensive training to enable them to deal with difficult situations with very limited resort to the use of force and firearms, for example, through training in crowd management and alternatives to the use of force and firearms. They should, in particular, be trained and tested in the use of force and firearms and authorised to use the latter only if provided with special training in their use.

Law enforcement officials should be equipped with the means to adopt an appropriate graduated response to a situation. In particular, they should not be issued only with firearms, which would give them no alternative in a situation where a lesser use of force would be sufficient. Appropriate equipment could include defensive equipment such as shields, helmets, and bullet-proof vests, which would reduce the need to use weapons for protection, as well as a range of different weapons and ammunition.

Internal monitoring and reporting starts with the establishment of a clear chain of command over all officials responsible for arrest, detention and imprisonment, as well as all those officials authorised to use force and firearms, in order to maximise accountability. All deaths and injuries caused by the use of force and firearms must be reported immediately to a superior officer and investigated. Superior officers should be held responsible where they knew or should have known that those under their supervision resorted to the unlawful use of force and firearms and did not take appropriate measures to stop or report them.

Many of these requirements are very detailed and it is not every failure to implement one which can support an argument that the state has failed to protect the right to life. However, what is important is to be able to show that the state did not take sufficient steps to protect the right to life. Where it is possible to point to a number of failures across the system it can be argued that the state was not serious about securing such protection.

Specific precautions

The state has an ongoing obligation to minimise risks to life in the conduct of each individual operation. Much of this is achieved through effective implementation of the general measures of protection, but it should be ensured that such precautions are adapted to each particular operation. Killings can result from defects in the short or long term planning of an operation, or its command and control. In such situations lethal force may be used because of errors in the carrying out of a law enforcement plan and this can constitute a failure to protect the right to life particularly where it results in a death. The kinds of defects can include:

It is likely to be particularly difficult to obtain information about the planning of an operation which states may regard as highly sensitive, and in such cases it becomes essential that there be an independent and open inquiry into the events which led to the use of lethal force. As usual, the more facts are available, the more possible it may be to build a strong case.

RELEVANT PRINCIPLES:
Basic Principles on the Use of Force and Firearms by
Law Enforcement Officials, Principles 2, 6-7, 11, 18-26
Principles on the Effective Prevention and Investigation of
Extra-legal, Arbitrary and Summary Executions, Principle 2

3.2.2.2. Institutions

In an institutional context, similar considerations will apply as in law enforcement generally, as far as the protection of the right to life during law enforcement operations is concerned, e.g. where an operation is mounted to control a prison riot, or with respect to the training of prison officers to use lesser forms of restraint rather than firearms. In addition, however, there is a presumption that since these institutions house persons who are under state authority and not free to leave at will, the state has a resulting obligation to look after their welfare. This translates, among other things, into an obligation to protect their right to life and ensure their security in the everyday running of the institution. This includes taking positive measures to preserve physical and mental health, to protect detainees from each other and to be alert to risks to life.

Examples of situations in which the state has failed to protect the right to life could include:

There can be a fine line between actions by state officials intended to cause death, and negligence or recklessness as to whether death occurs, for example, where medical treatment is deliberately withheld although it is known that the person in question will die without it, or if a prison officer deliberately places a victim in the same cell as a detainee whom he or she knows has threatened to kill the victim. In each case, it might be argued that the resulting death is sufficiently foreseeable to claim that there was deliberate intent, but the state will certainly argue that this was not the case. Where a death in custody could fall into either category, it is worth trying to argue that the state is directly responsible for the death, but always backing up that argument with the alternative one, that the state failed to protect the victim's right to life.

3.2.3. Non-state actors and the obligation to protect

Where someone other than a state official carries out a killing, what are the implications for trying to hold the state responsible for a violation of the right to life? Private persons can be tried in domestic proceedings under criminal legislation, but not generally for human rights violations as such, as these relate to obligations that are binding only on the state rather than individuals. From a human rights perspective, a state may be responsible for such deaths if it can be shown that it failed to protect the right to life.

As noted previously, the state has a general obligation to prohibit killings in its domestic law, and to enforce this prohibition through effective investigation and the consistent application of appropriate sanctions to those who are found responsible. It would be failing to protect the right to life if these systems were not in place or remained ineffective.

A failure to adopt effective measures to prevent deaths from occurring might take the form of tolerating certain traditionally accepted practices, such as "honour" killings, or failing to provide protection for an individual who has received death threats. It might involve the promotion of impunity by failing to prosecute perpetrators where, for example, drug cartels are actively killing people in a certain region, or by failing to investigate a racist murder. It could involve tolerance of killings by detainees within a prison, or by paramilitaries in a region where guerrillas are known to be protected by the local population. It is also possible for the state to be held responsible for failure to protect the right to life and the prohibition of torture and other forms of ill-treatment, where a person is to be deported to a country where he or she is at risk of being killed, including at the hands of non-governmental actors.

As always, there are grey areas, where the state could perhaps be argued to be directly responsible - for example, if it is known that paramilitaries have a practice of killing certain categories of persons (e.g. sympathisers of an opposition party) and the state tolerates this. It may amount merely to a failure to protect - but if the state makes available a list of sympathisers to the paramilitaries, even without a direct order to kill, it may be possible to argue that it is directly responsible for their deaths.

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3.3. Obligation to conduct an effective investigation

Where a reliable report of unnatural death is received, the state has a duty to investigate that complaint effectively. The most important characteristic of the investigation is that it be effective, not merely a formality. Although the most stringent requirements are provided for in the Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, which are designed to apply in the context of killings by state officials, requirements regarding the effectiveness of investigations have been developed by the human rights supervisory bodies for wider application. Investigations into all forms of suspicious deaths should comply with these requirements, and if the state fails to investigate, such that no genuine attempt is made to identify the perpetrator of a killing or to bring that person to justice, it would have failed in its obligation to conduct an effective investigation. This could also amount to a failure to protect the right to life, since it represents a failure to enforce the prohibition of killings.

An effective investigation should be thorough, prompt and impartial. It should be carried out by an investigative authority which has the power to obtain all the necessary evidence, including the power to compel suspects and witnesses to appear and give evidence. The investigation should include an autopsy of the body, the collection and analysis of all relevant physical and documentary evidence, and the taking of statements from witnesses. The autopsy should be carried out by an impartial and independent physician, ideally one with forensic experience. The autopsy should be detailed and, as a minimum, establish the identity of the deceased and the cause and manner of death. The body of the deceased should be returned to the next-of-kin at the end of the investigation.

In order to ensure the transparency of the investigation, families and legal representatives should be granted access to all relevant hearings and entitled to present evidence. A final written report of the investigation must be produced within a reasonable time and made public. It should include details of the scope of inquiry, the procedures and methods used to evaluate evidence, and the conclusions and recommendations reached by the investigators on the basis of the facts established.

Such established investigative procedures should be initiated whenever there are reasonable grounds to believe that a death is unnatural. Where the procedures are inadequate or not impartial, an independent inquiry should be set up. Those implicated in the killing should be removed from positions where they may seek to influence the investigation, and complainants, witnesses, investigators and their families, should be protected from all forms of violence or intimidation connected to the investigation. All persons identified as having participated in unlawful killings must be brought to justice. As is the case concerning the obligation to protect the right to life, it is not each single breach of these detailed elements of the obligation to investigate which give rise to the responsibility of the state, but evidence that, overall, the state has not respected the obligation.

RELEVANT PRINCIPLES:
Principles on the Effective Prevention and Investigation of
Extra-Legal, Arbitrary and Summary Executions, Principles 9 - 18

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3.4. Obligation to provide an effective domestic remedy

The state has a general obligation under human rights law to provide an effective domestic remedy for human right violations. This is an essential condition for the effective protection and enforceability of every right, including the right to life. States should ensure that fair administrative and judicial systems exist to provide access to criminal and civil sanctions and disciplinary measures in response to unlawful killings, which apply equally where those responsible are state officials. The provision of fair and adequate compensation is also an essential part of providing a remedy to the victim's family. Where the death results from torture, the UN Convention Against Torture specifies that dependants are entitled to compensation. Such remedies should be available equally to all victims and must be enforced.

RELEVANT PRINCIPLES:
Principles on the Effective Prevention and Investigation of
Extra-Legal, Arbitrary and Summary Executions, Principle 20
International Covenant on Civil and Political Rights, Article 2
European Convention on Human Rights, Article 13
Inter-American Convention on Human Rights, Article 25
Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, Article 14

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3.5. Enforced disappearances as a violation of the right to life

Enforced disappearances are a complex phenomenon encompassing a number of different human rights abuses, which can include the arbitrary deprivation of life. The phenomenon, as a whole, has its own particular characteristics which make it more than just a collection of individual violations and is beyond the scope of this handbook, but it does represent a particular kind of potential violation of the right to life which cuts across the range of state obligations deriving from that right.

Enforced disappearances typically involve the unacknowledged detention of persons for an extended or indefinite period, such that there is no opportunity to challenge the legality of the detention or to benefit from procedural safeguards, and no information is given to family or friends about the whereabouts or fate of the person. A disappearance does not always necessarily end in the death of the disappeared person, but can do so and, at the very least, creates a grave risk to life. The real problem for anyone wishing to pursue an alleged violation of the right to life in connection with a disappearance is that, by definition, the detention is not acknowledged by the state. This makes the direct responsibility of the state difficult to establish since evidence proving that state agents carried out the deprivation of liberty is not often available and, even less so, evidence that the person has died while in custody.

Where evidence does exist that a person has died while in unacknowledged detention, there is clearly a violation of the right to life. The state has an obligation to account for a person who has been taken into custody, so failure to do so where there is evidence that the state was responsible for the detention, creates a presumption of responsibility. Where death in custody cannot be established, a disappearance can still represent a violation of other aspects of the right to life. It can constitute a failure of the state's obligation to protect the right to life, particularly where the practice of enforced disappearance is widespread and the state tolerates or has not taken steps to eliminate it. It can also constitute a failure to respect the obligation to carry out an effective investigation if the state does not seek to establish the whereabouts of the person and account for their fate. There may be a further failure to provide a domestic remedy where, for example, family members may only seek compensation for an unlawful killing where it is able to prove that a death has occurred. Where no body has been found, this would make it impossible for a remedy to be pursued.

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Handbook links: website home page
Table of Contents - Search - Part I: Essential Reading - Part II: Identifying a Potential Violation - Part III: How to Document Allegations of Unlawful Killings - Part IV: Responding to the Information Collected - Part V: Where can you Seek Further Help? - Appendices
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