LEGAL 3 ADARSH SRIRAM 22JUN (1) - · PDF fileAs a set of rules and principles it aims, for humanitarian reasons, to limit the effects of armed conflict. ... to halt extrajudicial killings

The Dhirubhai Ambani International School Model United Nations 2017

Research Report | Page 1 of 26

Forum: General Assembly Sixth Committee - Legal

Issue: Establishing a legal framework for the prevention of extra judicial, summary or arbitrary killings in Non-Conflict zones.

Student Officer: Adarsh Sriram

Position: Deputy Chair

Introduction

Under Article 55 of the Rome Statute, a person “Shall not be subjected to arbitrary arrest or

detention, and shall not be deprived of his or her liberty except on such grounds and in accordance with

such procedures as are established in this Statute.”1

The right to life and liberty is clearly defined in Article 3 of the Universal Declaration of Human

Rights.2 Article 6 of the International Covenant on Civil and Political Rights (ICCPR) recognizes the

fundamental right of every person to life, adding that this right "shall be protected by law" and that "no

one shall be arbitrarily deprived of life.”3 Extra judicial, summary or arbitrary killings and detentions are

clearly in complete violation of these ideals. Despite having been repeatedly condemned by several

General Assembly and UN Commission on Human Rights (UNCHR) resolutions, in a number of

countries the negation of this fundamental justice, and self-proclaimed impunity continues to prevail and

often remains the main cause of the continued occurrence of extrajudicial, summary or arbitrary.

Tragically, these are in fact more frequent in Non-conflict affected regions and nations; many of whom

have acceded to international laws and tribunals, but whose governments directly or indirectly are party

to these atrocities.

In 1989, the Economic and Social Council in resolution 1989/65 adopted the Principles on the

Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions4, which in

essence sets forth the obligation of Governments to guarantee effective protection through judicial or

other means to individuals and groups who are in danger of extra-legal, arbitrary or summary executions.

Despite this comprehensive resolution urging nations to be accountable for instances of any such extra-

judicial excesses, such abhorrent practices are still in some way encouraged, covertly or otherwise by 1RomeStatuteoftheICC,1998:Article55,Clause1(d)http://legal.un.org/icc/statute/99_corr/cstatute.htm2InternationalDeclarationofHumanRightshttp://www.un.org/en/universal-declaration-human-rights/index.html3ICCPR,1966,Article6http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx4Seefullresolution:<https://www.un.org/ruleoflaw/blog/document/principles-on-the-effective-prevention-and-investigation-of-extra-legal-arbitrary-and-summary-executions/>



many States. Resolutions in the past, such as A/RES/51/92 have condemned this practice, and asked all

governments to “ensure that the practice of extrajudicial, summary or arbitrary executions be brought to

an end and that they take effective action to combat and eliminate the phenomenon in all its forms”; and

must “conduct exhaustive and impartial investigations into all suspected cases of extrajudicial, arbitrary

or summary executions, to identify and bring to justice those responsible, to grant adequate

compensation to the victims or their families and to adopt all necessary measures to prevent the

recurrence of such executions.”5

In 1982, the mandate of the Special Rapporteur was established by the Economic and Social

Council as Resolution 1982/35, and has since then been renewed periodically- most recently in 2014

and further elaborated upon by several other Assembly resolutions. The Special Rapporteur, must

“examine situations of extrajudicial, summary or arbitrary executions and to submit his findings, together

with conclusions and recommendations, to the Commission”; and “enhance further his dialogue with

Governments, as well as to follow up on recommendations made in reports after visits to particular

countries”; among his other functions.6

Keeping all this in mind, there has been no significant deterrence in this regard. Although there

have been instances where forceful action was taken by the United Nations Security Council in Burundi

in 2016, (Resolution 2303) – where the Secretary-General was requested to establish police component

in Burundi to “Monitor security situation expressing concern about continuing violence and a persistent

political impasse”; this was a narrow approach to tackle just one case of extra-judicial excess, leaving so

many others unaddressed.

As of today, in countries like Philippines (The Philippine drug war), Argentina, Chile, The United

States of America, El Salvador, India (“encounter” killings) and many more, extrajudicial and summary

executions and detentions are common place, with the regional judiciaries turning a blind eye to

perpetrators, with governments either covertly or openly complying with such activities.

5Seefullresolution:<http://www.un.org/documents/ga/res/51/ares51-92.htm>6Mandate of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Human Rights Council resolution 26/12



Definition of Key Terms

Extra-judicial executions

Extrajudicial killing is broadly defined as a deliberated killing not authorized by a previous

judgement pronounced by a regularly constituted court, or any International Law affording all the

judicial guarantees which are recognized as indispensable by civilized peoples.7

Summary execution

An execution wherein a person is accused of a crime and immediately killed without benefit of a

full and fair trial.

Non-conflict zone

A zone or designated area in which there are no major belligerents waging any war, and the

rights of neutral entities are respected and protected in accordance to peacetime law.

Immunity

Immunity from prosecution is a doctrine of international law that allows an accused to avoid

prosecution for criminal offences. The main kinds of immunity include:

1. Functional immunity (or immunity ratione materiae). This is an immunity granted to people

who perform a certain function for state.

2. Personal immunity (or immunity ratione personae). This is an immunity granted to certain

officials purely because of the office they hold, regardless of the act they have committed.

Impunity

A kind of immunity, which deems certain individuals exempt from punishment or freedom from the

injurious consequences of an action

Human Rights

Human rights are rights inherent to all human beings, whatever our nationality, place of

residence, sex, national or ethnic origin, colour, religion, language, or any other status. We are all

equally entitled to our human rights without discrimination. These rights are all interrelated,

interdependent and indivisible.

7UnitedStatesTortureVictimsProtectionAct,1991,Section3(a)



International Humanitarian Law (IHL)8

IHL is essentially the legal framework applicable to situations of armed conflict and occupation.

As a set of rules and principles it aims, for humanitarian reasons, to limit the effects of armed

conflict.

Background Information

Several nation states in recent times have taken obscene advantage of the absence of an

internationally agreed upon framework for preventing extra-judicial killings. Either covertly, with the

example of the alleged arbitrary encounter killings by police officials in India, or extremely blatantly, as in

the killings during the Philippine Drug War – the number of extra-judicial and summary killings aided

directly or indirectly by State actors have drastically increased in incidence. When responsibility for illegal

targeted killings could be credibly assigned, such killings have been strongly condemned by the

international community – including by other States alleged to practice them. More recently, however, a

few States have even openly adopted official policies that legalise targeted killing and make

accountability mechanisms redundant

Philippine Drug War

In May 2016, Rodrigo Duterte was elected the president of Philippines. Since taking office on

June 30, 2016, Philippine President Rodrigo Duterte has carried out a “war on drugs” that has led to the

deaths of thousands of Filipinos till date. At least 2,555 of the killings have been attributed to the

Philippine National Police (PNP).9 The state has incited the killings in their campaigns that could amount

to crimes against humanity, and violation of human rights. Additionally, it has been proven that Duterte

used flawed data to support his claim that the Philippines was a "narco-state". The Philippines in fact has

had a relatively low prevalence of drug users according to the United Nations Office on Drugs and Crime

(UNODC) databases. Duterte claimed that data from the Philippines Drug Enforcement Agency (PDEA)

shows that there were 3 million drug addicts in the Philippines a few years ago, and further said that the

figure may have increased to 3.7 million. However, according to the Philippines Dangerous Drugs Board

8InternationalCommitteeoftheRedCross–WhatisInternationalHumanitarianLaw< https://www.icrc.org/en/document/what-international-humanitarian-law> 9 Philippine Police Killings in Duterte's “War on Drugs” | HRW <https://www.hrw.org/report/2017/03/01/license-kill/philippine-police-killings-dutertes-war-drugs>



(DDB), only 1.8 million Filipinos used illegal drugs in 2015, while only a third of them had used illegal

drugs only once in the last year10.

Graphical representation of the number of deaths from May –

September, 2016, according to

ABS-NBC and other sources11

In one instance, when Duterte was asked if he could prove and confirm his claims regarding his arbitrary

allegations, he said, “As the President, I got this information, as a privilege. But I am not required to

prove it in court. That is somebody else's business.”12 UN human rights officials called on the Philippines

to halt extrajudicial killings last year. Agnes Callamard, the UN Special Rapporteur extra-judicial and

summary executions, stated that Duterte had given a "license to kill" to his citizens and law enforcement

officials, by encouraging them to do so.13 Duterte even threatened to withdraw from the United Nations

and form a separate group with African nations and China.

In January this year, Amnesty International published a report titled “If you are poor you are killed":

Extrajudicial Executions in the Philippines' "War on Drugs”, which talks about police involvement in these

atrocities, and how they have been manipulating and faking evidence, and systematically targeted the

poor and defenceless across the country. Citizens even claimed, according to the report, that police

planted evidence of drug trade or usage, recruited paid killers and fabricated official incident reports.

Amnesty International has strongly recommended that the International Criminal Court initiate a

10 "Suspect Stats". Reuters. October 18, 2016. Retrieved 8 February 2017 <https://www.reuters.com/investigates/special-report/philippines-duterte-data/> 11 Infographic by ABS-CBN Investigative and Research Group - Drug-related killings in Philippines on the decline: Gonzales, Juni, 9th Sept, 2016. <http://news.abs-cbn.com/news/09/09/16/drug-related-killings-in-philippines-on-the-decline> 12 "‘Love affair led to corruption’" (August 21, 2016). LLANESCA PANTI. The Manila Times. Retrieved August 22, 2016. http://www.manilatimes.net/love-affair-led-to-corruption/281280/ 13 UNOHCR. "UN Rights Experts Urge Philippines to End Wave of Extrajudicial Killings amid Major Drug Crackdown." UN News Center. United Nations, 18 Aug. 2016. <http://www.un.org/apps/news/story.asp?NewsID=54707#.WWbW9IiGNPY>.



preliminary investigation into extra-legal killings in the Philippines’s violent anti-drug campaign and

related Human rights violations.14

Though the incidence of killings has reduced since January this year, and intentional community is

heavily pushing for investigations, the fact remains that urgent, significant and precise change needs to

be implemented.

Special Rapporteur on extrajudicial, summary or arbitrary executions

Grieved by the alarming frequency of incidents of extra-judicial killings and executions across the

world, the Commission on Human Rights in 1982 suggested that the Economic and Social Council

request the Chairman of the Commission to appoint an individual as the Special Rapporteur on

extrajudicial, summary or arbitrary executions, to submit a report to the Commission on the incidence

and extent of the practice of summary, extra-judicial or arbitrary executions, together with his/her

conclusions and recommendations. Dr. Agnes Callamard was appointed the UN Special Rapporteur on

Extra-Judicial summary or arbitrary Executions last year. The Special Rapporteur is empowered to

receive information and complaints, and send either urgent appeals or allegation letters to the United

Nations based on the credibility of proof regarding the occurrence of an extra-judicial killing. The

mandate of the Special Rapporteur in accordance to the most recent resolution by the Human Rights

Council can be encapsulated as follows:

Examinations and communications to the United Nations15

The Special Rapporteur must bring the Council’s attention to serious situations of extrajudicial,

summary or arbitrary executions that justifies immediate attention or where early action might

prevent further deterioration. The feature of “urgent appeals” is an implicit function of this and is

an integral part of the Report. He or she must continue to draw the attention of the United Nations

High Commissioner for Human Rights to serious situations of extrajudicial, summary or arbitrary

executions that warrant immediate attention or where early action might prevent further

deterioration. He or she must also respond effectively to information which comes before him or

her, in particular when an extrajudicial, summary or arbitrary execution is imminent or threatened

or when such an execution has taken place.

14“If you are poor you are killed”: Extrajudicial Executions in the Philippines’ “War on Drugs” ." Amnesty International USA. Amnesty International, n.d. 15 “Extrajudicial, summary or arbitrary executions”, A/RES/51/92; Adopted by the General Assembly on the report of the Third Committee (A/51/619/Add.2, 28th February, 1997



Relationship with States

He or she is required to transmit urgent appeals to Governments and other relevant credible

actors with regard to individuals reported to be at risk of imminent extrajudicial, summary or

arbitrary executions, as well as communications on past alleged cases of extrajudicial, summary

or arbitrary executions. Country visits must be compulsorily taken to thoroughly examine the

situation of extrajudicial, summary or arbitrary executions in the respective country, and to

formulate comprehensive and precise recommendations to the Government and other actors on

upholding the right to life in accordance to international standards and various Covenants. He or

she is also mandated to enhance further his or her dialogue with Governments, as well as to

monitor and follow up actively on any recommendations made in reports after visits to particular

countries. The implementation of existing international standards on safeguards and restrictions

relating to the imposition of legal executions and targeted killings must be very carefully

monitored, bearing in mind the comments made by the Human Rights Committee in its

interpretation of Article 6 of the International Covenant on Civil and Political Rights, as well as the

Second Optional Protocol.

Arbitrary or targeted killings by law enforcement officials

Law enforcement officials in several member states must always act in accordance to state law,

and is often obliged to use force. However, in many cases, the law allows a law enforcement official the

use of force resulting in a killing if this action is unavoidable and is an attempt to save his/her own life.

However, targeted and often arbitrary killings by law enforcement officials, which not only include police

officers, but also all wings of the military, criminal and civil justice enforcers, etc., is a rampant practice in

several member states. A few frequent incidents of the same can be observed in several countries

including:

Indian “encounter killings”

The phenomenon of arbitrary killings by the police or the armed forces, under the pretext of self-

defence, is very commonplace, and is widely known as the infamous “encounters” or “encounter

killings”. The law enforcement officials initially claimed that such incidents were limited to

operations in cracking down on gangster networks, terrorists, etc. who were an immediate and

imminent threat to the nation’s security; but now there is evidence to indicate that the police

staged “fake encounters” to cover up the killing of persons in custody, even if they were

unarmed/posed no threat.16 Notable instances of the same were observed in the Gujarat riots of

16S Gurumurthy (2011-08-11). "Sohrabuddin: Interrogating the media". Indian Express. <http://www.newindianexpress.com/opinions/2011/aug/11/sohrabuddin-interrogating-the-media-280391.html>



2002, when several individuals were allegedly victims of “fake encounters”, whose deaths

received national media attention.

The Armed Forces Special Powers Act (AFSPA) was a series of three acts of Parliament that

granted “special powers” to the military in certain “disturbed areas” (as deemed by the

government). While the acts were implemented to maintain status quo in the regions,

international community as well as national media have heavily criticised the acts over concerns

of extra-judicial killings and human rights violations in the areas of their enforcement. The

Supreme Court of India, in July 2017, ordered the Central Bureau of Investigation to probe the

265 documented cases of extra-judicial killings in Manipur since 2000; after overruling the army’s

and the Central government’s curative appeals. Following the Supreme Court’s indictment, the

ruling parties of Jammu & Kashmir are likely to start focusing efforts on either repealing or

amending the AFSPA. Among many other powers granted, the AFSPA allowed an officer of the

armed forces to:

1. Use lethal force and firearms according to his/her discretion

2. Arrest individuals without a warrant

3. Enjoy virtually absolute legal immunity from the law

Israeli Defence Forces in Palestinian territory

The Israeli Government and Israeli Defence Force confirmed its national policy which it justified

targeted and summary killings in self-defence, because the Palestinian Authority was failing to

prevent and prosecute terrorists – especially those targeted at Israel. Many reported incidents of

extra-judicial and summary killings by the State have taken place on the West Bank region under

the control of Palestine, where law enforcement officials have been targeting “suspected”

members of militia, who were “allegedly” planning attacks against Israeli civilians. Evidence to

validate their claims were rarely provided. Furthermore, it has been reported that Israeli forces

have conducted targeted killings in violation of the Supreme Court’s requirements. The reports

though denied by Israeli officials, were allegedly based on classified documents taken by a

soldier who was later charged of espionage.

Russian anti-terrorism operations

In 1999 Russia launched a counter-terrorism military operation in Chechnya. Russia reportedly

sanctioned “seek and destroy” groups of army units to track and eliminate suspected insurgents,

and has justified these reported targeted killings in Chechnya to be absolutely essential to protect

Russia’s security. This justification is especially ambiguous and controversial as large parts of the



population have in fact been labelled as terrorists. With regards to summary killings, the Russian

government continues to resist cooperation with the Special Rapporteur. In addition, the Kremlin

denies responsibility for these deaths and has taken no concrete action to deem summary killings

unlawful or establish protocol and procedure to prosecute or review such operations. There is no

information presently about safeguards adopted to ensure that summary killings are officially

deemed unlawful in Russia, the criteria for those who may be targeted, or accountability

measures for reviewing such operations

The United Nations has taken a few steps to recommend preventive measures, such as:

The UN Code of Conduct for Law Enforcement Officials17

This code of conduct, adopted by the General Assembly on 17th December, 1979, lays down two

major principles of sorts:

1. Force should be used "only when strictly necessary". The Code further implies that the

use of force should be only under exceptional circumstances, that it should be used

strictly “as is reasonably necessary under the circumstances" and that it should be used

for only two purposes:

a) The prevention of crime

b) Effecting or assisting in the lawful arrest of offenders or suspected offenders,

2. The force used should be only proportional to the objectives, i.e. it should be used only "to

the extent required" for the performance of law enforcement officials' duty. The

Commentary of the Code acknowledges a concept known as the principle of

proportionality, as laid down in the legislations of most member states, and signifies that

the Code should not be taken to authorize the use of force which is not proportionate to

the predetermined objective to be achieved.

UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials18

Adopted in the fall of 1990 by the Eighth United Nations Congress on the Prevention of Crime

and the Treatment of Offenders, Havana, Cuba, these set of principles further elaborate and

clearly define the circumstances wherein the use of firearm is justified legally; and develops on

the above two principles laid down in the UN Code of Conduct for Law Enforcement Officials. The

use of firearms is thus restricted, in accordance to these principles, to a list of situations involving:

17Seefulldocument:http://www.ohchr.org/EN/ProfessionalInterest/Pages/LawEnforcementOfficials.aspx18Seefulldocument:http://www.ohchr.org/EN/ProfessionalInterest/Pages/UseOfForceAndFirearms.aspx



1. Imminent threat of death or serious injury

2. Grave threat to life

3. A scenario when only when less extreme means is insufficient to achieve the objectives

specified.

Furthermore, the intentional lethal use of firearms, or an evident intent to kill, is to be made only

when strictly unavoidable in order to protect life. "Strictly unavoidable" here implies that lesser

means should be used first and that firearms should not be used before lesser means have

proved insufficient to protect life.

Regional Treaties

Governments across the world have created organizations or committees to discuss matters of

regional concern, including human rights. Some of the many regional intergovernmental organizations

have officially adopted human rights treaties which are legally binding on the states which are a party to

the respective organisation. They are as follows:

1. The European Convention for the Protection of Human Rights and Fundamental

Freedoms19 - signed in 1950 and entered into force in 1953,

2. The American Convention on Human Rights, adopted in 1969 and entered into force in

1978,20

3. The African Charter on Human and Peoples' Rights, was adopted in 1981 and entered

into force in 1986.21

Similar to the International Covenant on Civil and Political Rights, these conventions provide for

the right to life – thus as a corollary also guaranteeing the right not to be arbitrarily deprived of life. All

three provide for the following rights:

1. The right to liberty and security of person,

2. The right not to be subjected to torture or cruel, inhuman or degrading treatment or

punishment

3. Right not to be subjected to arbitrary arrest or detention.

19Moreinformationandfulltextofconvention:http://www.echr.coe.int/pages/home.aspx?p=basictexts20Fulltextofconvention:http://www.cidh.oas.org/basicos/english/basic3.american%20convention.htm21Moreinformationandfulltextofconvention:http://www.achpr.org/instruments/achpr/



Summary, arbitrary and extrajudicial executions are clearly prohibited under these conventions,

just as they are under the Universal Declaration of Human Rights. These treaties provide for the

establishment of institutions to supervise their respective implementation in their respective regions.

Political Killings

Russia

Russia’s policy regarding targeted killings against political figures, journalists and activists, has in

the recent past been heavily tainted with controversy. Those deliberately targeted for their work

tended to be reporters, correspondents, and editors. In Russia many directors of new regional TV

and radio stations have been murdered but some of these deaths are thought to relate to

conflicting business interests. In 2009 an investigation by the International federation of

Journalists (IFJ), into the deaths of journalists and activists in Russia was published. The IFJ

launched a comprehensive documentation of over three hundred deaths and disappearances

since 1990. The Committee to Protect Journalists (CPJ) argued that journalists often died or were

killed because of the work they were doing, with a negligible number of cases receiving

substantial legal persecution.

One of the most famous unresolved cases was one of Anna Stepanovna Politkovskaya: a

Russian journalist and activist, who was widely known to very openly express her feelings and

thoughts against the policies of Russian President Vladimir Putin. Anna was arrested by Russian

military forces in Chechnya, where she had been reporting from, and subjected to a “mock

execution”. On 7 October 2006, she was murdered in the elevator of her flat - an assassination

that attracted international media attention. Sergei Sokolov, a journalist testified in court that he

had received information that defendant Dzhabrail Makhmudov was an agent of the FSB. He

claimed that Makhmudov's uncle Lom-Ali Gaitukayev, who was serving a sentence in prison, also

worked for the FSB (formerly the KGB). All three men earlier associated with her murder were

acquitted in 2009.

Philippines

Extra-judicial killings in the Philippines first became very prominent under the administration of

Gloria Macapagal-Arroyo, in 2001.These included targeted and summary executions with a

largely political motive, of civilian non-combatants. In 2007, the report submitted by then Special

Rapporteur Philip Altson suggested that the military and the police were responsible for these

crimes. In his report, Alston accused Arroyo’s supposed “counter-insurgency” strategy of

“encouraging or facilitating the extra-judicial killings of activists and other alleged enemies (of the

state)”. He further said that the Armed Forces of Philippines (AFP) remained in a state of total



denial of its need to respond effectively and authentically to the significant number of killings

which have been convincingly attributed to them, especially considering the significant rise in

deaths since 2001.

Numerous actors were said to be responsible for these killings which include the New People’s

Army (NPA) and the Morg Islamic Liberation Front. Left-wing political groups, such as the Bagong

Alyansang Makabayan accused the AFP, the Philippine National Police (PNP), the Citizen Armed

Force Geographical Unit (CAFGU), and government-backed militias, who were guised as “anti-

insurgency” task forces, of encouraging and perpetrating these terrible crimes. The alleged

perpetrators stated that it was a part of the official government policy of eradicating the threat

from the insurgency of the Communist Party of the Philippines (CPP) and was even officially

sanctioned by the Government. Those who were targeted included, Left-wing politicians,

journalists, activists, political opposition, outspoken clergy and Human rights advocates.

The Maguindanao Massacre, or the Ampatuan massacre, was a condemnable, tragic event that

occurred on November 23, 2009, wherein 58 victims were kidnapped and killed under the orders

of Ampatuan Jr. - son of the incumbent Maguindanao governor. Andal Ampatuan Sr. The victims

were on their way to the regional office of the Commission on Elections in a convoy of six

vehicles, to file the certificate for candidacy for Esmael Mangudadatu - the vice mayor of Buluan

town. Mangudadatu was standing against Ampatuan Jr., in the upcoming Maguindanao elections

(following up to the 2010 general elections

The death toll by 2010 amounted to around 1200 – majority of whom were non-combatting

civilians. In 2011 President Arroyo arrested following the filing of criminal charges against her for

electoral fraud in the previous year. Amnesty International released a commentary, stating that,

“the more than 860 confirmed murders are clearly political in nature because of "the methodology

of the attacks, including prior death threats and patterns of surveillance by persons reportedly

linked to the security forces, the leftist profile of the victims and climate of impunity which, in

practice, shields the perpetrators from prosecution.

The Human Rights Watch also released a report stating that, “the Philippine government is

consistently failing in its obligations under international human rights law to hold accountable

perpetrators of politically motivated killings....With inconclusive investigations, implausible

suspects, and no convictions, impunity prevails....Out of hundreds of killings and

“disappearances” over the past five years, there have been only two successfully prosecuted

cases resulting in the conviction of four defendants....The number of senior military officers

convicted either for direct involvement or under command responsibility remains zero” It was

further noted that law officials refused to cooperate with the families of victims, and police officers

gave up investigations within mere days.



The right to self-defence against a non-state actor

Article 51 of the United Nations Charter explicitly states the inherent right of individual or

collective self-defence cannot be impaired if an armed attack occurs against a Member of the United

Nations, until the Security Council has taken measures necessary to maintain international peace and

security. Any measure taken by Members in the exercise of this right of self-defence shall not in any way

affect the authority and responsibility of the Security Council to take at any such action as it deems

necessary in order to maintain international peace and security.22

States may very conveniently, cite the right to self-defence to justify the extra-legal use of force.

There is no agreement to date, as to what extent self-defence can be used to justify a legal violation of

Article 51. Additionally, exceptions established to justify violation of Article 51 would diminish hugely the

importance of its fundamental prohibition. US officials advocate a form of self-defence, wherein once

proven that a killing is legal on grounds of self-defence, no other legal frameworks would prevent

targeted killings. This was largely seen as a defence of US’ operations in Afghanistan and Pakistan, and

criticised by international community Under this view, once it is justified to use force in self-defence, IHL

would cease to be applicable to that use of force. This approach reflects a disturbing attitude to permit

violations of the fundamental right to life.

Even if the use of inter-state force is offered as justification for a targeted killing, it does not

subvert the obvious question of whether the killing of the particular targeted individual or individuals is

lawful. The legality of a specific killing depends on whether it meets the requirements of IHL and human

rights laws.

Major Countries and Organizations Involved

United Nations Human Rights Council (UNHRC)

The Human Rights Council is an inter-governmental body established in 2006 under United Nations

responsible for strengthening the promotion and protection of human rights around the globe and for

addressing situations of human rights violations and make recommendations on them. Its mandate is to

discuss all thematic human rights issues and situations that require its attention throughout the year. It

holds its meeting at the United Nations office at Geneva.

The UNHRC has worked seamlessly in bringing the atrocities of extra-legal and summary killings across

the world to the notice of United Nations, and have pushed for efforts in preventing the same from the

other UN organs and bodies. The UNHRC renewed the mandate of the Special Rapporteur on

22 Chapter VII - Action with respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression, Article 51 of the United Nations Charter



extrajudicial, summary or arbitrary executions in 2014, which has been elaborated upon earlier. The

Special Rapporteur must also report to the UNHRC, which also acts as a consolidation of intelligence for

all purposes obtained from the Special Rapporteur’s report.

Philippines

In the mid 1990’s, around 10,000 citizens of the Philippines won a US class-suit against Ferdinand

Marcos, who ruled Philippines as a dictator in the 70’s and 80’s. They were either the victims themselves

who had faced summary detentions and torture, or the families of victims of extra-judicial killings by the

death squads who reported directly to the Marcos regime. According to famous historian, Alfred McCoy,

around 3,257 individuals were victim to extra-judicial killings under the Marcos regime, and over 70,000

were arbitrarily incarcerated or tortured – marking one of the worst phases of extra-legal killings and

human rights violations in the Philippines.

The New People’s Army (NPA), which also participated in the extra-legal killings from 2001-2010, were a

rebel-militia group that was a part of the Communist Party of the Philippines (CPP) that has targeted

politicians and government officials for many decades. Since 1975, the Armed Forces of Philippines

(AFP) have been in sporadic conflict with the NPA. Today, even though armed conflict has greatly

reduced, the AFP continues to target members associated or allied with the NPA or the CPP. Former

president Gloria Macapagal-Arroyo has been accused of directly aiding in AFP operations to illegally kill

their political opponents, as earlier elaborated, between 2004 and 2010.23

The Philippine War on drugs as declared by President Rodrigo Duterte is the strongest example in

recent times that highlights to what inhuman extents vacuums in legal mechanisms can be exploited to

justify the most horrendous violations of Human Rights.

Russia

Political killings, and assassinations of journalists and activists have seen a sharp increase in incidence

since the early 1990’s, i.e. the presidency of Boris Yeltsin- the first president of the Russian Federation.

However, it was only in 2006, after the assassination of Anna Politkovskaya, that concern over the issue

of Impunity, unresolved cases and “partial justice gained nation-wide media attention. Ex-FSB (Russia’s

Federal Security Service) officers and agents have been charged with major cases, which have led

sceptics to believe that the State could have had a bigger role to play in these targeted killings than what

was previously perceived.

Mark Galeotti, a professor at New York University and an authority on the FSB, remarked that, “Outside

of popular culture, there are no highly skilled hitmen for hire. If it’s a skilled job, that means it’s a state

23Calamur, Krishnadev. "Freedom for Arroyo in the Philippines." The Atlantic. Atlantic Media Company, 19 July 2016. <https://www.theatlantic.com/news/archive/2016/07/philipplines-arroyo/491936/>



asset.” After the notorious case of Alexander Litvinenko, one of Vladimir Putin’s (current president of

Russia) strong opponents, who died very suddenly of Polonium poisoning, several of the Kremlin’s critics

have decided to flee Russia and seek refuge elsewhere. Gennadi Gudkov, an ex-MP and former KGB

officer very solemnly stated that, “They (The Kremlin) is using the special services to liquidate its

enemies.” He further observed that the State would classify the deaths as accidents and deny any

associations to the killings, for obvious reasons. Vladimir Kara-Mirza, a leader of the Russian opposition

against Putin, who in 2015 had encouraged the US to expand on sanctions against Russia to speed up

political and economic reforms, claimed to have been poisoned and fell into a week-long coma. He says

that he was very lucky to have survived, but he knows of cases wherein others have not been as

fortunate as he was.

There have been several other such cases over the last two decades, and while the government

continues to deny any ties, investigations are revealing the involvement of current and former FSB

officers, regional political figures and classified communications that suspiciously lead back to the

Kremlin itself. The media and other organisations are all waiting for a slip in the governments otherwise

meticulous procedure – for the several deaths of political oppositions and journalists, allegedly carried

out with intent and precision, cannot all simply be “accidents”.

India

The concept of “encounters”, was popularised in India in the early 2000’s, with its origins in Mumbai,

when law enforcement officers used this tactic targeting the city’s criminal networks. Over the years,

there have been many controversial cases wherein the legality of an encounter killing was placed under

heavy scrutiny. According to the National Human Rights Commission of India, there have been around a

thousand documented encounter killings across India since 200224. A significant number of these cases

have been highly controversial, as there were witnesses and video footage to indicate that the police

officials had either staged the encounter, had the liberty to simply detain the suspect, had used a firearm

against an unarmed individual.

Additionally, regional parties have been shown to have been associated with the political killings of their

opponents, or journalists/activists in active opposition of their ideologies. Recently, there have been an

increase in the number of deaths of activists in the state of Kerala who have openly opposed the

ideologies and policies of both the state government and other major opposing parties. Investigations are

being held in this regard, with sceptics claiming that these killings were politically motivated. Pre-election

violence is very common in many Indian districts, and often influential political figures have allegedly

involved law enforcement officials to fulfil their personal agenda. International Standards, such as the UN

24"NHRC Stats Show There Were More Fake Encounters in Congress-ruled States than in Narendra Modis Gujarat." India Today. N.p., n.d. Web. 13 July 2017. <http://indiatoday.intoday.in/story/fake-encounters-congress-ruled-states-narendra-modi-gujarat/1/286891.html>



Code of Conduct for Law Enforcement Officials, have set a defined set of guidelines and regulations

within which officials must operate, in consideration with Human rights and IHL. However, the standards

upheld by the Indian are very different from these International Standards in principle. The AFSPA has

been much criticised by International community – including the Special Rapporteur, Human rights

groups, and the United Nations itself.

The “Right to private defence”, is natural and inherent right of every citizen, as recognized in section 96

of Indian Penal Code (IPC). Section 100 of the IPC and the implicit right to self-defence, though do not

directly authorize encounters, are in some sense “enabling provisions” for the same.25 Section 160 of the

Bombay Police Act, 1951, further provides that no public servant shall be liable to any penalty for giving

effect in good faith to any order or direction issued with apparent authority by the state

government.26 Last year, police officers killed eight Students' Islamic Movement of India (SIMI) activists

who had broken out of a jail in the city of Bhopal. The police claimed that these individuals were terror

suspects, and received strong backing from the Central and State government, who were both in support

of their actions. These eight individuals, supposed terrorists or not, had yet not been charged with a

sentence, were unarmed and posed no imminent threat to the police force. Even though this incident

was not as serious as many other instances of extra-judicial encounter killings such as the Gujarat riots

of 2002, the fact that the State condoned such an act that was in clear violation of fundamental human

rights, is cause for grave concern.

Israel

The extra-judicial killings by Israeli forces are slightly different from other cases, owing to the ambiguous

territorial demarcations where the killings usually take place. Israeli military units have known to carry out

extra-judicial killings of Palestinians using intentional lethal force without justification. Though the Israeli-

Palestinian border is quite a grey area in regards to its classification as a “Conflict-zone”, the military’s

excesses during ceasefires and the absence of significant armed conflict, should be considered for this

specific agenda. Amnesty International said that based on the findings of an ongoing research at the

West Bank, including East Jerusalem, several incidents have been reported wherein Palestinians who

posed no threat to life were shot dead by Israeli forces. Israeli forces shot dead Sa’ad Muhammad

Youssef al-Atrash in Hebron as he attempted to retrieve an ID at an Israeli soldier’s request. Authorities

classified the incident an “attempted stabbing”, contrary to the testimonies of the few eye-witnesses

present.

Israeli forces have categorised several other alleged extra-judicial killings as attempts to attack an Israeli

soldier or official, and that out of self-defence, there was no other choice but to use lethal force. As is the

25The Indian Penal Code (IPC), 6th October, 1860 26 THE BOMBAY POLICE ACT, 1951; 11th June, 1951 (Bombay Act No. XXII) - An Act to consolidate and amend the law for the regulation of the Police Force in the State of Bombay



case in few other nations, Israel’s investigation systems have long served to allow impunity, for extra-

judicial and arbitrary killings of Palestinians, and civilians suspected to be a terrorist threat, by Israeli

military and police forces.27 Though Israel does plan on allowing for impartial investigations into the

same, the government has no shown no intent to sustain such efforts significantly.

Turkey

Though majority of extra-judicial killings in Turkey have occurred in “conflict-zones”, or regions

frequented with armed conflict, usually between the Kurdish rebels in the south-eastern areas of the

country. However, the military units and police forces have taken advantage of the breakdown or law and

order in the area, imposed curfews and restrictions on movements, and have carried out alleged unlawful

killings of non-combating civilians. According to eye-witnesses, security forces arbitrarily opened fire on

unarmed civilians walking down streets with white flags. Organizations like Amnesty International and

Human Rights Watch have been denied entry to the region and are not allowed to provide a credible

report on the atrocities being perpetrated in the region. This highlights another interestingly unique

aspect of the issue, where in regions usually regarded as “Conflict zone” when there is no significant

armed conflict on an ongoing basis, law enforcement officials abuse their power to carry out arbitrary

killings under the pretext of either self-defence or acting under laws concerning armed conflicts.28

After the failed coup last July, President Erdogan has ordered certain measures to subvert any opposing

sentiments that have alarmed the United Nations. Zeid Ra’ad al-Hussein, the current UN High

Commissioner for Human Rights said that the emergency measures adopted by Erdogan appeared to be

an attempt to “target criticism, not terrorism.” al-Hussein remarked that the State imposed unnecessary

curfews, during which majority of the human rights violations have been taking place in select areas,

including restricted access to food and water, forced disappearances and even unlawful killings. Notable

cases of such extra-legal and summary killings over the past decade include that of Huseyin Altın,

Ibrahim Kılıc and Askin Gunel, the families of whom all appealed to the European Court of Human Rights

(ECHR). The ECHR sentenced Turkey to pay compensation of these families, as there was substantial

evidence to prove that lethal force need not have been used against these individuals, who were terror

suspects, and they could simply have been detained instead.

However, many such families of victims of extra-judicial or summary killings have yet been unable to

obtain justice, either due to fear of the State, complacency shown by the legal system, or just sheer lack

of awareness of other legal systems such as the ECHR.

27"Shoot to Kill Policy." Shoot to Kill Policy. Amnesty International, n.d. Web. <http://www.amnesty.org.il/en/cat/use-excessive-force-dispersal-demonstrations-west-bank/>. 28"Turkey: State Blocks Probes of Southeast Killings." Human Rights Watch. HRW,11July2016.



United States of America

Aside from the extra-territorial use of drones, missiles, military operations, etc. to conduct alleged extra-

judicial killings in countries such as Syria, Pakistan and Afghanistan, the United States in recent times

has seen a rising number of extra-judicial killings by law enforcement officers. A report prepared for the

United Nations Human Rights Committee, in 2006, states that in the U.S., the "War on Terror"29 has-

"created a generalized climate of impunity for law enforcement officers, and contributed to the erosion of

what few accountability mechanisms exist for civilian control over law enforcement agencies.

Consequentially, the controversial issue of Racial Profiling in the US again comes to the front. Infamous

cases of police excess leading to the death of the victims include: the assault of Malice Green, Detroit,

the shooting of Amadou Diallo in New York City, the shooting of Laquan McDonald, Chicago, and the

shooting of Michael Brown in Ferguson-among many others. All of these cases caught extensive national

media attention leading to several protests across the country, including the famous Black Lives Matter

social movement. The United States’ Federal Law in no way endorses police brutality, but has been

ineffective in reforming its legislations concerning the same. Though the country has safeguards such as

the Fourteenth Amendment, the Civil Rights Act of 1871 and the Federal Tort Claims Act, these laws

have been largely ineffective in dealing with police excesses.

Pakistan

The Human Rights Watch (HRW) has consistently been of the opinion that Pakistani law enforcement

officials have been staging armed conflicts to perpetrate extra-judicial killings, especially in the last few

years. The HRW claimed that, the police were one of the most widely feared, complained against, and

least trusted government institutions in Pakistan, lacking a clear system of accountability and plagued by

corruption at the highest levels.” Meenakshi Ganguly, the HRW’s South East Asia Director commented

that when the country was under colonial rule, the police were not a public service, but were an

instrument to keep the people in check in accordance to the Government’s whims. She believes that this

attitude has not changed to this day. 30

According to the Human Rights Commission of Pakistan, over 2,000 people were killed in 2015 in

“encounters” with the police, very similar to controversial practice of its neighbour – India.31 HRW

29OHRC. In The Shadows of the War on Terror. - PERSISTENT POLICE BRUTALITY AND ABUSE OF PEOPLE OF COLOR IN THE UNITED STATES: Rep. N.p, Dec 2007 30"Pakistan." Human Rights Watch. N.p., 27 Jan. 2016 https://www.hrw.org/world-report/2016/country-chapters/pakistan 31""This Crooked System"." Human Rights Watch. HRW, 12 July 2017. <https://www.hrw.org/report/2016/09/26/crooked-system/police-abuse-and-reform-pakistan>.



interviewed a police officer, who said that an "encounter killing is a way of ensuring that a known criminal

does not escape justice because of lack of evidence and witnesses." Civilians interviewed by the HRW

claims that the military often targets the poor and those who have no means of defending themselves,

either physically or legally. Additionally, Pakistani media is of the opinion that the government under

Nawaz Shariff has failed to significantly bring about a change in this attitude, and has even allegedly

abetted in several extra-judicial killings, especially those associated with politically opposing parties.

Timeline of Events

Date Description of event

March 23rd,1976 International Covenant on Civil and Political Rights comes into force,

May 24th, 1989 Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary

and Summary Executions is adopted without a vote

1994-1995 Families of victims of extra-judicial and summary killings win a US class-suit

against the estate of Ferdinand Marcos

January 20th, 2001 Gloria Macapagal-Arroyo wins the controversial presidential elections, becoming

the first female president of the Philippines

February 2002 Riots break out in Gujarat, India, where several individuals were allegedly killed

by law enforcement officers in fake encounters

October 7th, 2006 Anna Stepanovna Politkovskaya, a Russian journalist is found dead in her flat.

Her assassination gains international media attention.

June 2009 The International Federation of Journalists (IFJ) published a report into its

investigations into the deaths of journalists in Russia

November, 23rd,

2009

The Maguindanao massacre takes place, where 57 individuals on their way to

file Esmail Mangudadatu’s certificate of candidacy, are murdered by armed men

associated with Andal Ampatuan Jr. and his political party

May, 2010 Philip Alston, Former Special Rapporteur submits his report and

recommendations to the United Nations

November 16th, 2010 Human Rights Watch publishes a 96 page report regarding events leading up to

and implications of , the Maguindanao Massacre

2010 The official death toll by extra-judicial killings in the Philippines since 2001 rises

to 1200

November 18th, 2011 Gloria Macapagal Arroyo is arrested over charges of election fraud

June 26th, 2014 The Mandate of the Special Rapporteur on extrajudicial, summary or arbitrary

executions, Human Rights Council is renewed by the HRC June 30th, 2016 Rodrigo Duterte is sworn in as the President of Philippines. He promises to kill



the thousands of supposed illegal drug traffickers and encourages the police to

adopt a shoot-on-sight policy. This marks the start of Philippine’s war on drugs.

May 5th, 2017 Senator Alan Peter Cayetano, leads a delegation to attend the UN’s Universal

Periodic Review to advocate the state of human rights in the Philippines and

dispel reports that killings linked to the drug war were state-sponsored

Relevant UN Treaties and Events

• Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary

Executions, Recommended by Economic and Social Council resolution 1989/65, 24 May 1989

• The Ninth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, (A/RES/50/14), 21 December, 1995

• International Convention for the Protection of All Persons from Enforced Disappearance, General

Assembly, 2006 • Mandate of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Human

Rights Council (A/HRC/26/L.23), 26 June, 2014.

• Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston,

Human Rights Council, Agenda Item 3, 28 May, 2010.

• UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, Eighth

United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana,

Cuba, 27 August to 7 September 1990

• Extrajudicial, summary or arbitrary executions, 28 February, 1997, United Nations General

Assembly (A/RES/51/92)

Previous Attempts To Solve The Issue

The International Covenant on Civil and Political Rights, set forth rights which are violated in the

perpetration of summary and extrajudicial executions, includes a requirement that states parties to the

Covenant implement the standards contained in that treaty. Under Article 2, each state party accepts to

respect and to ensure to all individuals within its territory and subject to its jurisdiction the Violations of

international human rights recognized in the present Covenant"



A resolution on extra-legal executions adopted by the Sixth UN Congress on the Prevention of Crime and the Treatment of Offenders32 called on all governments "to take effective measures to

prevent such acts". Both the Declaration on Disappearances33 and the Principles on Extra-Legal, Arbitrary and Summary Executions suggested that authorities to conduct impartial investigations into

complaints and reports of these abuses, to bring the alleged perpetrators to trial and to establish specific

safeguards for the prevention of these abuses. One must not forget, however, that the basic

responsibility for action is with governments. Just as governments have allegedly been associated with

extrajudicial executions or allowing them to be perpetrated, the UN has tried to encouraged governments

to end this lawless situation and uphold human rights. Unfortunately, as these resolutions had no legal

bearing on member states, Nations paid little to no heed to these efforts, and the practice of extra-legal

and summary executions continued with the same, if not higher, frequency and incidence across the

world.

The International Convention for the Protection of All Persons from Enforced

Disappearance34 is an instrument of human rights, overseen by the Committee on Enforced

Disappearances (CED) – an independent body under the United Nations established by the Commission

on Human; and adopted by the General Assembly. Article 1 of the convention explicitly states that: “No

exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political

instability or any other public emergency, may be invoked as a justification for enforced disappearance

(or extra-judicial killing).” The convention has been either ratified or acceded to by 54 states, France and

the United Kingdom being the only permanent 5 members to do so. Arguably, several member nations

did not feel that the convention met their expectations, leading to many of them choosing not to accede

to the same; despite its seemingly appealing feature for reporting and monitoring complaints against

violations.

32UN General Assembly, Report of the 6th United Nations Congress on the Prevention of Crime and the Treatment of Offenders., 15 December 1980, A/RES/35/171, 33 47/133. Declaration on the Protection of All Persons from Enforced Disappearance, A/RES/47/133 92nd plenary meeting, 18 December 1992 34InternationalConventionfortheProtectionofAllPersonsfromEnforcedDisappearance,December20,2006-Seefulltext:http://www.ohchr.org/EN/HRBodies/CED/Pages/ConventionCED.aspx



Key Issues

Absence of transparency and accountability mechanisms

Several states even in today’s context, have continuously failed to uphold fundamental human

rights and fulfil the moral obligation to provide accountability and transparency, especially regarding

information of targeted killings. This is evidently a matter of deep concern for the United Nations. To this

day, no State has disclosed the legality for any reported targeted killings, nor has any nation revealed

procedural and other safeguards to ensure that killings are all justified, the accountability mechanisms

that ensure extra-judicial killings are investigated, prosecuted and punished. Transparency is required by

IHL, for it to be effectively implemented. A lack of disclosure, as shown by most member state where

extra-judicial killings occur, manifests into a virtual and impermissible license to kill. States would often

refrain from providing factual information about who has been targeted under their policies and with what

outcome, including whether innocent civilians have been collaterally killed or injured.

In some instances, such killings take place in busy urban areas, and human rights monitors and

civil society are able to document the outcome. In others, because of remoteness, it has been impossible

for independent observers and the international community to conclude the legalities of such killings. But

without disclosure of the rationale as well as the bases for the selection of targets only if in accord with

immediate and unavoidable security needs, States have been allowed to operate in an “accountability

vacuum” of sorts. It is very difficult for international community to confirm the authenticity or otherwise of

intelligence relied upon, or to ensure that unlawful targeted killings do not result in impunity; due to the

absence of a legal framework to monitor the same. The fact that there is no universally accepted process

for such disclosure does not absolve States of the need to adopt explicit policies; this being of the most

integral underlying aspects to tackling this issue.

Impunity, Immunity and national legal systems

As defined earlier, certain individuals can be exempt of prosecution owing to the position they

hold in the government, or rank they occupy in a particular office. This right has been abused and taken

advantage of in several instances. For example, in the regions of North Caucasus and St. Petersburg, in

Russia, no one has ever been prosecuted for killing a journalist. Officials in these regions enjoy complete

impunity, and there has been close to no documented accountability on such matters. In some cases,

where there was a significant burden of proof that the murder of a journalist was premeditated, “partial

justice”, or an unsatisfactory level of prosecution, is what has been delivered. Sometimes, an individual

who perpetrated an extra-judicial killing is sentenced, however the network of accomplices leading to the

specific killing are rarely ever brought to justice. Those who ordered or paid for the killing, more often

than not face no consequences.



President Duterte made a statement in 2016 saying that journalists were not exempt from

assassination, if they behaved in a certain way – which allegedly could be seen as a threat against

opposing media opinions.35 Here arises the concept of assumed or self-proclaimed immunity from the

law. Individuals, including Presidents of nations, members of parliament, officers in both the military and

police force, and even political families, have no fear for their country’s judicial system. Extra-judicial and

targeted killings have greatly risen in frequency since the turn of the millennium; with very few cases

receiving even the least of consideration from the legal systems. National laws and the general

International Covenants are being treated as redundant documents.

The absence of a legal framework with precise consequences, definitions, parameters, etc., has

essentially encouraged political and legislative institutions across governments to neglect accountability

measures and indulge in the practise of conducting extra-judicial killings for their vested motives. These

state actors have never had the otherwise common pretence of an armed conflict – for these were all

Non-conflict zones enjoying times of peace. Immunity and by corollary impunity have been the bane of

justice in regard to extra-judicial killings, and in the absence of consequences has given States the

power to quash the provisions of the International Declaration of Human rights and related covenants

whenever they so pleased.

The lack of a comprehensive, structured and precise legal framework, that looks into all matters previously discussed

This is the briefest, yet most fundamental and obvious concern regarding this issue; and has thus

been deemed to be broad scope of this topic. This subject is in essence an encapsulation of the issue at

hand. The International Criminal Court, as empowered by the Roman Statute, is mandated to try

individuals regardless of their immunity too National or International Law. However, due to the absence

of a legal framework, definitions and parameters, the ICC cannot successfully try an individual in regard

to his or her association with extra-judicial killings. Hence, without any inter-governmental legal

safeguard in place, most States are virtually empowered to pay no heed to the principles and resolutions

discussed above, and thus associate themselves with the practice of extra-legal killings.

The absence of a legal framework causes for a high level of ambiguity in many aspects including

but not limited to:

• Accountability measures

• Definitions and the legalities of conflicts between international and national law

35Sawatzky, Robert. "Duterte: Killing Corrupt Journalists Justified." CNN. Cable News Network, 01 June 2016. www.cnn.com/2016/05/31/asia/philippines-duterte-journalists/index.html



• Definitions of the parameters regarding when states can call upon the justification of “self-

defence”

• Guidelines for national and regional legislative structures and operational regulations

Hence, in order to ensure inter-governmental co-operation, transparency, and collaboration on such a

volatile matter, an official legal understanding must be pushed for, and it is of utmost importance that it

be established with utmost precision and minimal scope for misinterpretation.

Possible Solutions

One of the strongest issues regarding this agenda is that of accountability. In order to ensure

accountability mechanisms, States must specifically disclose the measures in place to investigate

alleged unlawful targeted killings and either to identify State bodies party to the extra-legal crimes, who

can then be charged by the ICC for violations of the rights under the Covenant since the violations are

perpetrated by authorized agents of the State. Furthermore, States should publicly identify measures in

international law they consider to provide a basis for any targeted killings they undertake. There could

even be a mechanism for the state to submit an obligatory report of the same to the UN for its perusal.

This report could be an independent submission, or a collaborative effort with the Special Rapporteur.

Aspects to be specified may include: the bases for decisions to kill rather than capture, the safeguards in

place to ensure targeted killings comply with international law, and the measures taken after such a

killing, to prove with reasonable conviction to the United Nations, that it is in fact legal, and factual

analysis was accurate. In terms of consequences, the remedial measures and reparations a State would

take upon themselves must also be publicly and officially stated with the utmost clarity. If a State

commits a targeted killing in another State, the second State should indicate formally on the basis of its

consent, if it was even provided in the first place.

In regard to validity, states must ensure that targeted killings should never be based solely on

“suspicious” conduct or unvalidated information. The value of a citizen’s life must be given the utmost of

priority, unless proven otherwise with substantial evidence that an individual is an imminent threat to life.

Intelligence gathering and collaborative arrangements must include procedures for reliably verifying

targets, and adequately vetting information. State forces should ensure adequate intelligence on the

effects of weapons to be used by law enforcement officers, the presence of civilians in the targeted area,

and whether civilians can protect themselves from an attack.

The appropriate measures have been clearly elaborated upon in the Principles on the Effective

Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions. These should guide

countries whenever they carry out law enforcement operations, with specific focus on accountability,

investigative and procedural mechanisms. A legal framework, as is the scope of this agenda, must

define: Permissible objectives of a targeted killing, which however must have measures to prevent the



imminent loss of life; and efforts that must be made to minimize lethal force used, including specifying

the level of force that must be used at every possible stage. Further, it should take into consideration that

a threat may be so imminent that a warning is futile. At the same time, safeguards must be in place and

the proof of imminence must be established with a high degree of certainty, and must never circumvent

the requirements of necessity and proportionality.

Further, the scope of international law, and its bearing on national law in these specific

circumstances must be addressed. In regard to the controversy over Article 51 of the Declaration of

Human Rights discussed earlier, a consensus on the extent of IHL’s implications could be reached to

prevent further dichotomy. In addition, the issue of non-compliance of a State with IHL or a legal

framework as shown explicitly in the Philippines, Pakistan and Russia, must also be resolved using a

comprehensive legal system

As such, this agenda has the narrow objective of creating a legal framework for the prevention of

extra-judicial, summary and arbitrary killings. Resources to consult and consider as precedent include

existing international law as well as several resolutions and conventions as listed above (though must

not be the sole source for inspiration). The committee aims to create a comprehensive legal framework

encompassing all the parameters, definitions, exceptional circumstances and consequences in a

systemic approach, so as to successfully tackle the issue of extra-judicial and summary killings.

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Documents

LEGAL 3 ADARSH SRIRAM 22JUN (1) - · PDF fileAs a set of rules and principles it aims, for humanitarian reasons, to limit the effects of armed conflict. ... to halt extrajudicial killings