The Committee Against Torture's Approach to Extrajudicial Killing

(c) VOCAL-NY (Voices Of Community Activists & Leaders)[/caption]

The Philippines has seen an unprecedented level of killing by law enforcement since President Duterte took office in June 2016. According to the European Parliament Resolution of 19 April 2018, “since 1 July 2016, around 12 000 people, including women and children, have, reportedly, been killed in the Philippines during an ongoing campaign against drugs, internationally proclaimed as President Duterte’s ‘war on drugs’”. Already in February 2018, the Prosecutor of the International Criminal Court decided to open a preliminary examination of the situation in the Philippines, stating that “it is alleged that many of the reported incidents involved extra-judicial killings in the course of police anti-drug operations”. Extrajudicial executions are not limited to the Philippines. For example, in Bangladesh, there have been 845 documented cases of extrajudicial killings from May 2013 until September 2017, with not a single one of them having been duly investigated. OMCT and its members have also documented numerous cases involving extra-judicial killings in Latin American countries, notably Honduras, Colombia, Mexico, Nicaragua and Venezuela, in the context of increased militarization. Amnesty International Report 2017/2018 refers to evidence of large-scale extrajudicial executions in many other countries including Congo, Egypt, Ethiopia, Iraq, Nigeria and Syria.

Definition of the term

Apart from «extrajudicial killing», other terms used in this context are arbitrary, summary, extra-legal or extrajudicial execution or killing. According to the UN Manual on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions (1991), extrajudicial killings include:

• political assassinations,

• deaths resulting from torture or ill-treatment in prison or detention,

• deaths resulting from enforced disappearances,

• deaths resulting from the excessive use of force by law-enforcement personnel,

• executions without due process, and

• acts of genocide.

In the report of the UN Special Rapporteur on extrajudicial, summary or arbitrary executions (September 2016), extrajudicial killing is defined as «arbitrary deprivation of life» which might take place in various forms, including:

• in the context of law enforcement, if the intentional lethal use of force by law enforcement officials does not meet the requirements of necessity, proportionality and/or precaution;

• in other cases of killing incurring state responsibility, i.e. if the state fails to address systematic patterns of violence through precautionary measures – in particular with respect to journalists and human rights defenders, witchcraft accusations and related violence, «honour killings», killings on the basis of sexual or gender identity, and deaths of migrants.

On the other hand, the term does not cover:

• execution after a due judicial process,

• killing in a valid exercise of law enforcement, i.e. for reasons of public safety, and

• killing pursuant to the law of armed conflict,

even though the two latter situations concern a killing which is effectively extrajudicial, but is nonetheless considered lawful.

The Committee against Torture on extrajudicial killing

According to the Convention Against Torture, the main elements of the definition of torture are involvement of a public official, infliction of severe pain or suffering, intent, and a specific purpose. Extrajudicial killing means intentionally causing the death of the victim. In practice, however, death and torture often considerably overlap: victims are threatened with death or the killing of a third party, torture is so intense that it results in death, or death is contemplated or accepted as a consequence of severe physical torture. Therefore, in some cases, extrajudicial killing may meet the elements of the definition of torture according to Article 1 of the Convention.

In its concluding observations on state reports, the United Nations Committee against Torture regularly refers to extrajudicial killing; sometimes it uses also other similar terms, such as «extrajudicial, arbitrary or summary executions» (e.g. Burundi 2016), «excessive use of force, including lethal force» (e.g. Israel 2016), «deprivation of life» (e.g. Ukraine 2014), «arbitrary deprivation of the right to life» (e.g. Burundi 2014), or «unlawful killings» (e.g. Sierra Leone 2014). In a more specific context, the Committee sometimes deals with the issue of «death in custody as a result of torture» (Iraq 2015, China 2015) which is also considered as falling under the term of extrajudicial killing as mentioned above.

The Committee includes also acts perpetrated by non-state actors. In its 2016 concluding observations of the Philippines, the Committee «remains concerned that extrajudicial killings (…) implicating (…) armed militias have continued to take place» (similarly Iraq 2015). In its 2016 review on Burundi, the Committee «urges the State party to exercise strict control over the police and security forces to prevent them or any other person from committing extrajudicial executions». In its 2017 review on Afghanistan, the Committee «deplores the presence of a wide range of armed groups, including the Taliban, Da’esh and Hizb-i Islami, perpetrating severe human rights abuses, including extrajudicial killing». Furthermore, the 2012 concluding observations on Albania mention «blood feuds» defined as «revenge killing vindicating honour outside the regular legal system»; in this context, the Committee «expresses concern that this practice still remains entrenched in certain parts of the society, in particular, due to the prevalence of deeply rooted stereotypes of defending and restoring family honour lost as a result of the initial murder». In a similar vein, in its 2017 review on Pakistan, the Committee notes its concern about «honour killings» and «reports that parallel justice systems (…) have sentenced women to violent punishment or even death, including stoning», as well as about a reported case of mob killing. A specific situation arises if state security forces encourage local residents to carry out extrajudicial executions (Rwanda 2017).

When confronted with actual or alleged extrajudicial killing in a particular state, the Committee usually:

• expresses its «concern» (Thailand 2014), «high concern» (Sierra Leone 2014), «grave concern» (Mozambique 2013), «deep concern» (Iraq 2015), «serious concern» (Pakistan 2017) or «alarm» (Rwanda 2017);

• invites the respective country to ensure that all allegations of extrajudicial killing are promptly, impartially and effectively investigated, that alleged perpetrators are duly prosecuted and punished and that victims’ families receive adequate compensation (the most recent example can be found in the 2018 concluding observations on Senegal);

• asks the country in question to provide statistics and information concerning extrajudicial killing, in particular with regard to penal and disciplinary measures taken (e.g. Burundi 2016); and

• invites the state party to take effective measures to prevent extrajudicial killing (e.g. Israel 2016, Pakistan 2017, Cameroon 2017, Rwanda 2017).

The question remains whether the Committee views extrajudicial killing as constituting in itself a form of torture within the meaning of Article 1 of the Convention Against Torture. In its concluding observations, the Committee sometimes refers to «torture and extrajudicial killings» (e.g. Burundi 2014, similarly Cameroon 2010; emphasis added). However, in some cases the Committee also mentions «enforced disappearances, torture and extrajudicial killings» (e.g. Sri Lanka 2011, Russia 2012, or Iraq 2015), whereas enforced disappearance has already be included under the term of torture by the Committee. In any case, the Committee has repeatedly enumerated extrajudicial killing amongst «grave violations of the Convention« (Yemen 2010, Iraq 2015), «serious violations of the Convention« (Ukraine 2014) or simply «violations of the Convention« (Turkmenistan 2016). This presumably implies that according to the Committee, extrajudicial killing qualifies either as torture or as “other acts of cruel, inhuman or degrading treatment or punishment” pursuant to Article 16 of the Convention, which appears to be further confirmed by the fact that with respect to individual complaints alleging a violation of the non-refoulement principle, the Committee examines – among other issues – also possible risk of extrajudicial killing of the complainant in case of his forced removal to another state.

This approach is unquestionably coherent and should be maintained since many oppressive regimes – instead of torturing and subsequently releasing their victims – often kill them outright, or torture and kill them, so that they are not left as witnesses. It would seem strange that a greater cruelty could remove a human rights violator from international jurisdiction.

Reconciling the absolute prohibition of torture and CIDTP with lawful extrajudicial killing

The circumstances where the deprivation of life is not considered unlawful under international law have been abused by States to justify killings by law enforcement officials. In many countries including the Philippines, Bangladesh, Mexico, and Gaza, public officials allege or stage “crossfires” or “gunfights” when they unlawfully kill people or allege public safety to crack down demonstrations.

As extrajudicial killing may fall within the scope of article 1 or 16 of the Convention against Torture depending on the specific circumstances of the case, it would be important that the Committee against Torture develops further guidelines on the obligations of the State to protect individuals from extra-judicial killings, in the particular in situations where patterns of extra-judicial killings have been identified like in crowd management.

Jana Martinkova

OMCT Team