Published in July 2018.
This module is a resource for lecturers
Arbitrary deprivation of life
Generally applicable principles
The United Nations has defined the deprivation of life as involving a "deliberate or foreseeable and preventable life-terminating harm or injury, caused by an act or omission" (Human Rights Committee General Comment No. 36, 2017, para. 13.2). Although there is no standardized definition of "arbitrary", according to the African Commission on Human and People's Rights (ACommHPR) General Comment 3:
[A] deprivation of life is arbitrary if it is impermissible under international law, or under more protective domestic law provisions. Arbitrariness should be interpreted with reference to considerations such as appropriateness, justice, predictability, reasonableness, necessity and proportionality. Any deprivation of life resulting from a violation of the procedural or substantive safeguards in the African Charter, including on the basis of discriminatory grounds or practices, is arbitrary and as a result unlawful. (OAU, ACommHPR, 2015).
This approach reflects the earlier observations and conclusions of the Human Rights Committee. Notably, in 1982 in Suarez de Guerrero v. Colombia, the Committee specified the elements of arbitrariness as follows: (a) sufficient legal basis; (b) legitimate purpose; (c) absolute necessity; and (d) strict proportionality (United Nations, Human Rights Committee, 1982(a)). Subsequently in 1989, in the Principles on Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, the requirement of ex post facto investigation was specified too (paras. 9-17).
The Inter-American Court (see e.g. Constantine and Benjamin et al. v. Trinidad and Tobago, 2002, discussing arbitrary deprivation of life in relation to the death penalty), together with the Inter-American Commission on Human Rights (IACommHR), have specifically viewed the death penalty, disproportionate use of force in law enforcement, disproportionate use of force in armed conflict, deaths of prisoners, and forced disappearances as the five general scenarios in which the arbitrary deprivation of life may occur. This is especially important for States that may utilise these sorts of practices within their counter-terrorism strategies and therefore - whether intentionally or not - may paradoxically arbitrarily deprive and violate another's right to life. Interestingly, in the case of Raxcaco Reyes v Guatemala, the Court viewed the State's extension of capital punishment to the crime of kidnapping, which is a commonly used tactic by terrorist groups, as an infringement of article 4(2) (2005, para. 66).
The Human Rights Committee, the Inter-American Commission and Court, as well as the African Commission, have all established standards for the determination of "arbitrary" through the rule of law, necessity and proportionality. Notably, the ECHR and therefore the ECtHR, take a different approach. The relevant Convention text does not use the term "arbitrary", which may denote versatility, instead prohibiting all intentional killings unless they fall within its designated exceptions specified in article 2(2). Nonetheless, in Wasilewska and Kalucka v. Poland (2010), it was declared that the Polish Government had not addressed the issue of proportionality on the use of force by police, as well as sufficient information on whether laws and administrative rules had been implemented to protect individuals against arbitrariness. The Human Rights Committee has further affirmed that:
The protection against arbitrary deprivation of life which is explicitly required by the third sentence of article 6(1) is of paramount importance. The Committee considers that States parties should take measures not only to prevent and punish deprivation of life by criminal acts, but also to prevent arbitrary killing by their own security forces. The deprivation of life by the authorities of the State is a matter of the utmost gravity. Therefore, the law must strictly control and limit the circumstances in which a person may be deprived of his life by such authorities. (General Comment No. 6, HRI/GEN/1/Rev.1, para. 3).
Whilst non-lethal capture, surrendering opportunities and other prevention of loss of life tactics must be prioritised during counter-terrorism practice, there are situations where force may be required. Any State's counter-terrorism strategy which permits the use of force must fall within margins that are not deemed arbitrary. The force must comply with the principle of necessity under international law, as well as the principle of proportionality.
A gender-sensitive approach to arbitrary killings
The issue of arbitrary killings has long been on the agenda of the international community, however gender-based killings have generally been excluded from international human rights law discourse and practice. Gender is understood, according to international legal interpretations, as "social attributes and opportunities associated with being male and female, an evolving social and ideological construct that justifies inequality and a way of categorising, ordering and symbolising power relations" (General Assembly, Human Rights Council report A/HRC/35/23, para. 16; see also Economic and Social Council, Committee on Economic, Social and Cultural Rights General Comment No. 20 E/C.12/GC/20). In General Comment No. 20, the Committee on Economic, Social and Cultural Rights recognized that gender, and gender identity, is among the prohibited grounds of discrimination (E/C.12/GC/20). Within the United Nations, the Security Council, the Counter-Terrorism Committee and the Committee's Executive Directorate have all regularly emphasized the on-going importance of a gender-based approach given the role played by women in countering terrorism due to their influential position in families and communities. Adequately addressing the role of women and girls appears now to be an essential part of counter-terrorism and counter extremism strategies, as "targets, as perpetrators, and as potential partners" (Security Council, Counter-Terrorism Committee, The Role of Women ).
In relation to gender-sensitivity and arbitrary killings, attention has centred on the issue of "gender-based killings". The Special Rapporteur on extrajudicial, summary or arbitrary executions defined the concept of "gender-based killings" as those killings that occur within the private sphere, as opposed to having been perpetrated by the State, with gender-based discrimination being a primary cause or motive (Human Rights Council report A/HRC/20/16, para. 15). As the right to life more generally has been viewed as a public law issue, such categorisation has led to the implication that some arbitrary loss of life is of greater concern, severity and frequency than other types of arbitrary deprivation of life. This misnomer has resulted in some entities, such as the General Assembly in its resolution 71/198, seeking to implement more inclusive approaches to their work on arbitrary killings, urging States to ensure the effective protection of the right to life of targeted groups of individuals including those that are victims of gendered violations. As was held in the Inter-American Court of Human Rights (IACtHR) case of Velasquez Rodrigues, "what is decisive is whether a violation of the rights recognized by the Convention has occurred with the support or the acquiescence of the government, or whether the State has allowed the act to take place without taking measures to prevent it or punish those responsible". In this regard, States must act with due diligence to ensure that private actors, including non-State violent extremists/terrorist actors, comply with the requirements of the human right to life.
Integrating gender-based killings within the remit of arbitrary ones not only strengthens the ability and right of victims to claim reparation, but it also goes some way to reducing the infringement of the right to life in the first place. Furthermore, it can assist in ensuring that States and their agents perform counter-terrorism activities more strictly and diligently in line with the rule of law.
One area where women find that their right to life is disproportionately violated is with regard to the death penalty. Most women who have been sentenced to death have been on grounds not meeting the criteria of constituting the most serious of crimes, such as for offences of adultery, same-sex relationships or gender identity. Critically, the Special Rapporteur on extrajudicial, summary or arbitrary executions noted that actions of this nature should not be considered as crimes, pursuant to international human rights jurisprudence (General Assembly, Human Rights Council report A/HRC/35/23, p. 8). Examples of other offences that have resulted in convictions being punished by a sentencing of death include offences committed in the context of self-defence which would fall short of being deemed the most serious of crimes. In this regard, the Special Rapporteur on extrajudicial killings has stated that the imposition of the death penalty in such circumstances would be arbitrary. It should, also, be noted that the Special Rapporteur reiterated that the death penalty must not be imposed in a discriminatory manner (General Assembly, Human Rights Council report A/HRC/35/23, para. 31; see also General Assembly note A/70/304, para. 143), therefore indicating that individuals of both genders should receive commensurate punishment upon conviction.
Women and girls are also more adversely and inexplicably affected by armed conflict. When looking at the armed conflict context, one sees the use of rape and sexual violence against women as a recurring weapon of warfare. Such offences are perpetrated by both State and non-State actors and include unlawful gender-based killings (General Assembly report A/61/122/Add.1, para. 143). Even more general wartime killings and strategy are coordinated and typified by gender, such as the use of weapons in areas where high levels of women and children reside. The link between gender and arbitrary killings is such that in both peacetime and armed conflict situations, protection of the right to life must be respected, bearing in mind these quite predominant gender-based issues. Additionally, the empowering of women facilitates effective counter-terrorism strategy and facilitates the realization of Sustainable Development Goal 5 of gender equality.
A gender-sensitive approach to arbitrary killings cannot ignore that in certain instances those persons identified as being male are also discriminated against. For instance, and of particular relevance in relation to counter-terrorism, it has been determined that the targets of drone strikes are often identified based on the gender of the target, with the blanket categorization of adult men, in certain geographical areas, as being militants (Acheson, Moyes and Nash, 2014). This gender-based approach to targeting terrorist suspects has obvious human rights concerns, with targeting based on gender, alone, being arbitrary. Furthermore, this method of targeting has significant international humanitarian law concerns. It was the recommendations of a Report by the Women's International League for Peace and Freedom, Sex and Drone Strikes: gender and identity in targeting and casualty analysis, that States must not use gender as a signifier to assume militancy in targeting attacks or in post-strike casualty analysis, and that all States should cease extrajudicial killings as well as so-called 'signature' strikes whether with armed drones or by other means. Furthermore, it has been suggested that any States operating armed drones should provide transparent explanations indicating why an individual was deemed a necessary target (Acheson, Moyes and Nash, 2014).
In summary, it is apparent that the General Assembly has made a concerted effort to reduce the incidence of the violation of the right to life, based on gender related issues, through a continued drive to improve the rule of law, and move away from the arbitrary deprivation of life. In addition to the General Assembly's specific focus on gender discrimination, within Resolution 71/198 the Assembly has recognized the importance of the 2030 Agenda for Sustainable Development, noting that its implementation would have significant positive consequences on the promotion and protection of human rights for all, irrespective of gender.
Arbitrary killings and the deprivation of socio-economic rights
The broad scope of "arbitrary", as contained within article 6 ICCPR, means that the deprivation of socio-economic rights could also lead to the arbitrary loss of life. It is worth recalling that the concept of socio-economic rights encompasses a wide array of entitlements, with article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) providing for the recognition of the right to work, with article 11 noting that everyone has a right to "an adequate standard of living … including food, clothing and housing". The contents of article 13 provide for the right to education. From this perusal of some of the rights contained within the ICESCR it is unsurprising that a connection has been found between these rights, and that of the right to life.
That the notion of the right to life is connected to the fulfilment of economic and social rights is one of long standing. There can be a strong correlation between the protection of the right to life and the protection of socio-economic rights, a lens through which article 6 ICCPR has increasingly been interpreted. The Special Rapporteur on adequate housing put forward an inclusive understanding of the right to life in her 2016 report (A/71/310). In the report the right to life was recognized as being one that "does not actually belong to one or the other category of human rights. Lived experience illustrates that the right to life cannot be separated from the right to a secure place to live, and the right to a secure place to live only has meaning in the context of a right to live in dignity and security, free of violence". This single quotation gives a sense of the depth of the contemporary understanding of the right to life.
Echoing this, the Human Rights Committee has also interpreted article 6 in a manner which requires States to address issues such as homelessness, malnutrition, disease and poverty as a violation of the right to life. In the Committee's draft General Comment No. 36, on article 6, the Rapporteur remarked that "[t]he right to life is a right which should not be interpreted narrowly" (emphasis added) (p. 1, para. 3). This being said, as at June 2018, the current draft makes no reference to a provision contained within the ICESCR. However, given the general tone of the document, together with the lack of an expressive statement to the contrary, this omission would not seem to preclude the previously adopted expansive interpretation of article 6.
Similarly, this wide interpretative approach to the right to life has been adopted by the IACtHR and by the ACommHR. Taking a closer look at the IACtHR, a number of cases before the body have developed the right to life as enveloping the right to socio-economic aspects of society, including access to food and water, healthcare and sanitary facilities. For example, the Street Children, Yakye Axa Indigenous Community Sawhoyamaxa cases 2005; Yakye Axav Paraguay, 2005) are illustrative examples of such judicial interpretation. In the Sawhoyamaxa case, the Court developed a two-part test, which 1) assessed whether the authorities knew or should have known of the existence of a circumstance that was an immediate and definite risk to the life of an individual or of group; and 2) whether the necessary measures were not adopted within the scope of their authority which could have been reasonably expected to prevent such a risk. This is a particularly significant interpretation, since it indicates that it is not enough for a State to undertake action which would result in the violation of the right to life, but that the hindering of the protection of socio-economic rights can therefore be deemed an arbitrary killing.
The broad understanding of the term "arbitrary" is not limited to the findings of the Human Rights Committee and the IACtHR. For example, the World Food Programme sees itself as being an essential component in the prevention of arbitrary killings, with its role to play in the fulfilment of the right to adequate food, article 11 ICESCR. Furthermore, it has been argued by David Beasley, head of the World Food Programme since 2017, that the organization has a critical role to play as "the first line of defence against extremism and terrorism", since the deprivation of the right to adequate food can be one of the key catalysts in turning people towards extremism (Beasley, 2017).
Not only can a causal link between socio-economic factors and arbitrary killings exist, but improved integration of socio-economic rights within what amounts to "arbitrary" would strengthen a number of Sustainable Development Goals (SDG), including the reduction of poverty (SDG 1) and hunger (SDG 2), facilitation of good health and well-being (SDG 3), and access to improved sanitation (SDG 6). In is notable too that the World Food Programme sees the pursuit of gender equality (SDG 5) as being central to fulfilling the Programme's mandate, and in ensuring the fulfilment of the right to adequate food. This is of particular relevance in conflict situations where women, together with children, are of increased vulnerability to abuse and of having their right to adequate food violated. The significance of this was clearly highlighted in the World Food Programme's Project report on the Democratic Republic of the Congo (World Food Programme, 2015, p. 5).
Particular risks here may exist for migrants . Various drivers of migration - such as socio-economic problems, political violence and other forms of persecution - may result, at least, in groups of exiled communities that are negatively profiled in their adoptive homes. Furthermore, counter-terrorism operations in some States seem, at least on occasion, to have focused disproportionately on migrants and, in some cases, directly attribute terrorist incidents to them.
Key principles governing arbitrary deprivation of life
The discussion in this section reveals the following constitutive elements for determining whether a particular killing was arbitrary or unlawfulness: