1.1.1 Extrajudicial, arbitrary or summary execution or other unlawful killing [art 6(1) ICCPR)] Condensed: An execution or killing is considered arbitrary if: (1) a state agent, or someone acting at the behest of the government or with its knowledge or acquiescence, (a) intentionally kills a person without it being strictly unavoidable in order to protect life or (b) kills a person as a result of excessive or disproportionate use of force ; (2) the state has not taken adequate measures todeter, prevent, investigate, prosecute and punish killings whether by state agents or private individuals. Lethal force may be used in armed conflict against combatants as long as the requirements of international humanitarian law are observed. The death penalty is not prohibited under international law. However, execution of the death penalty in violation of international safeguards constitutes arbitrary execution. Comprehensive: Article 6(1) ICCPR provides: ‘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.’ Similar provisions are included in other international and regional human rights instruments.[1] An execution or killing is considered arbitrary,[2] thus incurring state responsibility, if: (1) a state agent, or someone acting at the behest of the government or with its knowledge or acquiescence,[3] (a) intentionally kills a person without it being strictly unavoidable in order to protect life;[4] or (b) kills a person as a result of excessive or disproportionate use of force. (2) the state has not taken adequate measures to deter, prevent, investigate, prosecute and punish killings whether by state agents or private individuals.[5] Lethal force may be used in armed conflict against combatants as long as the requirements of international humanitarian law are observed. (See *willful killing of person who has surrendered or is otherwise hors de combat*; *use of other prohibited weapons*). The death penalty is not prohibited under international law. However, execution of the death penalty in violation of any international safeguards constitutes an arbitrary execution.[6] (See *death penalty*). Law enforcement agents kill alleged criminals openly in many countries, while elsewhere killings are committed by unacknowledged ‘death squads’. Arbitrary killings may also result from excessive use of force when arresting a suspect, preventing escape from prison or in connection with riots.[7] (See *excessive or disproportionate use of force*). Deaths often occur in custody, whether directly inflicted by guards, by fellow prisoners or by general prison conditions. When someone dies in custody there is a presumption that the state is responsible.[8] In McCann v UK, the ECtHR held that the killing of IRA terrorists in Gibraltar who were in the process of planting a bomb was not necessary as the authorities knew about the threat in advance and could have prevented the terrorists from entering Gibraltar.[9] The ECtHR has held that lethal force was not ‘absolutely necessary’, and therefore prohibited by the ECHR, to prevent the escape from prison of unarmed prisoners who had been convicted of non-violent offences.[10] After a mission to the Democratic Republic of the Congo, the UN Special Rapporteur on extra-judicial executions reported that hundreds of members of a political religious group, Bunda dia Kongo (BDK), had been killed by security forces. The Special Rapporteur noted that there were a small number of credible reports of murders committed by BDK members but that the response of the security forces ‘was grossly disproportionate to any threat, and it was targeted to suppress the BDK as a political opposition force, not to protect victims of BDK violence.’[11] The state has a duty to prevent, try and punish deprivation of life whether by its own security agents or as a consequence of criminal acts,[12] and must investigate any suspicious deaths.[13] (See *failure to investigate*). Prevention includes a duty on the state to put in place a legal and administrative framework in line with international safeguards as to when lethal force may be used.[14] The state’s obligation to take measures to prevent killings by private individuals extends beyond putting in place effective criminal law provisions. According to the ECtHR in Osman v UK a state has an obligation to take measures if ‘the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.’[15]
[1] Art 4(1) ACHR; art 4 ACHPR. Art 2 of the ECHR provides: ‘No one shall be deprived of his life intentionally’. The exceptions listed in the article are execution of the death penalty and deprivation of life which ‘results from the use of force which is no more than absolutely necessary: in defence of any person from unlawful violence; in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; in action lawfully taken for the purpose of quelling a riot or insurrection.’ [2] ‘Arbitrary’ is here used to also cover the terms ‘extrajudicial’, ‘summary’ and ‘unlawful’ as this is the term used in the ICCPR. The Special Rapporteur on extrajudicial, summary or arbitrary executions has noted that ‘[t]he terms of reference of this mandate are not best understood through efforts to define individually the terms “extrajudicial”, “summary” or “arbitrary”, or to seek to categorize any given incident accordingly. These terms had important roles to play in the historical evolution of the mandate but today they tell us relatively little about the real nature of the issues.’ Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, E/CN.4/2005/7 (2004) para 6. [3] Special Rapporteur on extrajudicial, summary or arbitrary executions A/HRC/14/24 (2010) para 46(a). This includes militias, paramilitary groups, death squads as well as private contactors and consultants who engage in core state activities such as law enforcement. [4]UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials principle 9. The Special Rapporteur on extrajudicial, summary or arbitrary executions has noted that ‘the police may shoot to kill only when it is clear that an individual is about to kill someone (making lethal force proportionate) and there is no other available means of detaining the suspect (making lethal force necessary)’, A/HRC/14/24 para 35 [5] Special Rapporteur A/HRC/14/24 para 46(d). See also Myrna Mack Chang v Guatemala, Merits, reparations and costs Series C no 101 (IACtHR 2003) para 153. [6] Special Rapporteur A/HRC/14/24 para 50. [7] Special Rapporteur A/HRC/14/24 para 33. [8] Special Rapporteur A/HRC/14/24 para 49. [9]McCann and others v UK, App 18984/91 (ECtHR GC 1995). [10]Nachova and others v Bulgariaapplications 43577/98, 43579/98 (ECtHR (GC) 2005). [11]Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, Mission to the Democratic Republic of the Congo A/HRC/14/24/Add.3 (2010), para 74. [12]Myrna Mack Chang v Guatemala Series C no 101 (IACtHR 2003) para 153. [13]Principles on the effective prevention and investigation of exta-legal, arbitrary and summary executions (1989) principle 9. [14]Nachova and others v Bulgaria para 95; Makaratzis v Greece, application 50385/99 (ECtHR GC 2004). [15] Application 87/1997/871/1083 (ECtHR 1998) para 116.
Condensed:
An execution or killing is considered arbitrary if: (1) a state agent, or someone acting at the behest of the government or with its knowledge or acquiescence, (a) intentionally kills a person without it being strictly unavoidable in order to protect life or (b) kills a person as a result of excessive or disproportionate use of force ; (2) the state has not taken adequate measures to deter, prevent, investigate, prosecute and punish killings whether by state agents or private individuals.
Lethal force may be used in armed conflict against combatants as long as the requirements of international humanitarian law are observed. The death penalty is not prohibited under international law. However, execution of the death penalty in violation of international safeguards constitutes arbitrary execution.
Comprehensive:
Article 6(1) ICCPR provides: ‘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.’ Similar provisions are included in other international and regional human rights instruments.[1] An execution or killing is considered arbitrary,[2] thus incurring state responsibility, if:
(1) a state agent, or someone acting at the behest of the government or with its knowledge or acquiescence,[3] (a) intentionally kills a person without it being strictly unavoidable in order to protect life;[4] or (b) kills a person as a result of excessive or disproportionate use of force.
(2) the state has not taken adequate measures to deter, prevent, investigate, prosecute and punish killings whether by state agents or private individuals.[5]
Lethal force may be used in armed conflict against combatants as long as the requirements of international humanitarian law are observed. (See *willful killing of person who has surrendered or is otherwise hors de combat*; *use of other prohibited weapons*). The death penalty is not prohibited under international law. However, execution of the death penalty in violation of any international safeguards constitutes an arbitrary execution.[6] (See *death penalty*).
Law enforcement agents kill alleged criminals openly in many countries, while elsewhere killings are committed by unacknowledged ‘death squads’. Arbitrary killings may also result from excessive use of force when arresting a suspect, preventing escape from prison or in connection with riots.[7] (See *excessive or disproportionate use of force*). Deaths often occur in custody, whether directly inflicted by guards, by fellow prisoners or by general prison conditions. When someone dies in custody there is a presumption that the state is responsible.[8]
In McCann v UK, the ECtHR held that the killing of IRA terrorists in Gibraltar who were in the process of planting a bomb was not necessary as the authorities knew about the threat in advance and could have prevented the terrorists from entering Gibraltar.[9]
The ECtHR has held that lethal force was not ‘absolutely necessary’, and therefore prohibited by the ECHR, to prevent the escape from prison of unarmed prisoners who had been convicted of non-violent offences.[10]
After a mission to the Democratic Republic of the Congo, the UN Special Rapporteur on extra-judicial executions reported that hundreds of members of a political religious group, Bunda dia Kongo (BDK), had been killed by security forces. The Special Rapporteur noted that there were a small number of credible reports of murders committed by BDK members but that the response of the security forces ‘was grossly disproportionate to any threat, and it was targeted to suppress the BDK as a political opposition force, not to protect victims of BDK violence.’[11]
The state has a duty to prevent, try and punish deprivation of life whether by its own security agents or as a consequence of criminal acts,[12] and must investigate any suspicious deaths.[13] (See *failure to investigate*). Prevention includes a duty on the state to put in place a legal and administrative framework in line with international safeguards as to when lethal force may be used.[14]
The state’s obligation to take measures to prevent killings by private individuals extends beyond putting in place effective criminal law provisions. According to the ECtHR in Osman v UK a state has an obligation to take measures if ‘the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.’[15]
[1] Art 4(1) ACHR; art 4 ACHPR. Art 2 of the ECHR provides: ‘No one shall be deprived of his life intentionally’. The exceptions listed in the article are execution of the death penalty and deprivation of life which ‘results from the use of force which is no more than absolutely necessary: in defence of any person from unlawful violence; in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; in action lawfully taken for the purpose of quelling a riot or insurrection.’
[2] ‘Arbitrary’ is here used to also cover the terms ‘extrajudicial’, ‘summary’ and ‘unlawful’ as this is the term used in the ICCPR. The Special Rapporteur on extrajudicial, summary or arbitrary executions has noted that ‘[t]he terms of reference of this mandate are not best understood through efforts to define individually the terms “extrajudicial”, “summary” or “arbitrary”, or to seek to categorize any given incident accordingly. These terms had important roles to play in the historical evolution of the mandate but today they tell us relatively little about the real nature of the issues.’ Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, E/CN.4/2005/7 (2004) para 6.
[3] Special Rapporteur on extrajudicial, summary or arbitrary executions A/HRC/14/24 (2010) para 46(a). This includes militias, paramilitary groups, death squads as well as private contactors and consultants who engage in core state activities such as law enforcement.
[4]UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials principle 9. The Special Rapporteur on extrajudicial, summary or arbitrary executions has noted that ‘the police may shoot to kill only when it is clear that an individual is about to kill someone (making lethal force proportionate) and there is no other available means of detaining the suspect (making lethal force necessary)’, A/HRC/14/24 para 35
[5] Special Rapporteur A/HRC/14/24 para 46(d). See also Myrna Mack Chang v Guatemala, Merits, reparations and costs Series C no 101 (IACtHR 2003) para 153.
[6] Special Rapporteur A/HRC/14/24 para 50.
[7] Special Rapporteur A/HRC/14/24 para 33.
[8] Special Rapporteur A/HRC/14/24 para 49.
[9] McCann and others v UK, App 18984/91 (ECtHR GC 1995).
[10]Nachova and others v Bulgaria applications 43577/98, 43579/98 (ECtHR (GC) 2005).
[11]Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, Mission to the Democratic Republic of the Congo A/HRC/14/24/Add.3 (2010), para 74.
[12] Myrna Mack Chang v Guatemala Series C no 101 (IACtHR 2003) para 153.
[13]Principles on the effective prevention and investigation of exta-legal, arbitrary and summary executions (1989) principle 9.
[14] Nachova and others v Bulgaria para 95; Makaratzis v Greece, application 50385/99 (ECtHR GC 2004).
[15] Application 87/1997/871/1083 (ECtHR 1998) para 116.