Summary of the UN Special Rapporteur report on Extrajudicial, Summary and Arbitrary Executions

The UN Special Rapporteur on extrajudicial, summary and arbitrary executions, Christof Heyns, released his first annual report on the subject on 23 May 2011 [1]. The report is presented within a focused framework of the Right to Freedom of Assembly and explores standards provided by international law in conjunction with those enacted by domestic law before concluding with a set of recommendations. Heyns findings reflect a meager compliance with international standards by nations, based primarily on unequivocal domestic laws which are open to misinterpretation.

The crux of his report centres on the Right to Life, often described as the ‘Supreme Human Right’; within the skeleton of protests and demonstrations, he illustrates the unwarranted use of state violence. At the outset a disparity is defined between those laws which target the protection of public order versus those which focus on the preservation of peace. The domestic legal systems mostly outline their laws based on the characterization of legal and illegal protests, where as the international law is inclined to differentiate based on violent and non-violent protests. This discrepancy makes room for ambiguity, allowing state authorities to morph their illicit actions into seemingly lawful ones.

Whilst the freedom of assembly is widely recognized and protected in international organizations, the right to life while policing protests or demonstrations remains ambiguous. Article 2.1of the European Convention states that “everyone’s right to life shall be protected by law” and that it is the states responsibility to protect this right [2]. However, it provides for three extreme circumstances in which this right can be suspended – self-defence, arrests and riots. Any state intervention must be brought upon by a context in which the use of force is both ‘necessary’ and ‘proportionate’. [3] The first limitation lies in that local authorities fail to understand that the use of firearms is not a justified means of crowd control, even if a protest is illegal. The legality of a demonstration, according to international law, is secondary to that of peace. The protection of an individual life is thus not disparaged when the group it is part of is considered an imminent threat. This distinction is not clearly reflected in the domestic laws of those nations who recognize the right to freedom of assembly. The derogation of this right may be brought upon in a state of emergency, which is often misused by nations. Whilst the right to life is a universally documented law, nations such as Bahrain, China, Cuba, UAE, Mexico etc. do not expressively recognize it. Similarly, Gabon, Qatar, Yemen etc. do not accept the right to freedom of peaceful assembly in their constitution. This inconsistency and rejection further propels illicit state activities.

His analysis further reflects that several countries have a loose set of rules when it comes to the use of force. A standard provision, he states is, “any police officer may use such force as, in the circumstances of the case, may be reasonably necessary”. Without specific clauses and definitions, such as what circumstances warrant use of force, extrajudicial killings and arbitrary executions are allowed to perpetuate. Observations have been made to understand crowd behaviour in an attempt to increase peaceful collaboration. [4] Heyns discusses the evolution of views on crowds, from considering them as a dangerous group prone to violence to an approach which looks into working with crowds instead of against them. This philosophy of ‘negotiated management’ grapples to dilute the clash between protestors and the police opening channels of communication, negotiation and cooperation. The use of force and the treatment of a crowd as an irrational group of criminals will only further advance conflict and anarchic demonstrations. International law emanates from this theory which is driven to ensure peace rather than to enforce law. Based on this paradigm, countries have employed approaches to facilitate peaceful protests. The formalized role of the ‘safety-triangle’ during demonstrations, in which the police, the protestors and the local authorities each communicate transparently, is exemplary of this paradigm. At the outset, however, it is imperative for the police to be aware of their tasks and for them to receive appropriate training in an attempt to protect citizens from paramilitary policing. [5]

Heyns offers some entry points to assembly law reform categorizing his suggestions on a global, regional and domestic level. On a global realm, he suggests that additional protocol be adopted to the ICCPR on the freedom of assembly and use of state force. This could lead to model legislation, which may then be adopted by domestic state laws. Another avenue is the reports presented by various treaty bodies, which have an opportunity to critique and condemn illicit state action. Alongside, the various reports offered by the Special Rapporteur on freedom of assembly and association, extrajudicial killing and arbitrary execution should be used in conjunction to provide a mandate on managing demonstrations.

On a regional level, he alludes to the African Commission on Human and Peoples’ Rights, acknowledging their openness to adopting resolutions provided by the UN. They should enact model legislation, which can then be implemented or replicated in other regions. The Organisation for Security and Co-operation in Europe (OSCE) is deemed as one of the most impressive initiatives on assembly reform. Presenting guidelines on freedom and assembly, the comprehensive report is divided into seven parts, covering all aspects concerned (Regulation of Freedom of Peaceful Assembly, General Principles, Restrictions to Freedom of Assembly, Procedural Issues, Rights and Responsibilities of Law Enforcement Officials, Responsibility of the Organizer and Human Rights Monitor, Media and other Stakeholders).[6] The six driving guidelines are:

• Presumption in favour of holding assemblies
• State’s duty to protect peaceful assembly
• Legality and proportionality
• Good administration
• Transparent decision-making, and access to justice; and
• Non-discrimination [7]

This all-encompassing project could be regarded as a model for replication. Finally, on a domestic level he stressed on the importance of the role played by civil society members in demanding rights reflective of their democratic governance, instead of submitting to repressive state authority. Additionally, National Human Rights Institutions should approach assembly reform as a pressing concern and try to adhere to the international standards stated on the subject. Whilst police training should be indispensable, the implementation of police complaints agencies, as an external oversight body, should be incorporated under the constitutions of these nations.

The report concludes by providing an overview of the pressing concerns and dilemmas that surround the use of lethal force. While self-defence should take precedence, arrest and riots are secondary and should be based on the context rather than a fixed law. Due to the discrepancy on prioritizing the maintenance of public order and the protection of others rights, disparate decisions are bound to be taken on the use of firearms. The ‘negotiated management’ approach, which is directed at the protection of rights, is more viable by international standards than the force approach, which is used to maintain public order. It is difficult to make distinctions on when force is warranted and when not; thus, the overarching influencing principle shall be self-defence – the protection of life. Another vital point addressed by Heynes is an overall adherence to human rights standards; he states, with an increase in such compliance, the likelihood of protests turning violent is drastically reduced. In a free society, the desire to engage in violent protests and rebellious demonstrations is far lower, due to the satisfaction that is already provided to citizens.

Recommendations are furnished; Firstly the United Nations bodies which are involved in monitoring human rights should scrutinize laws and practices of countries, driving them to comply with international standards. A focus shall be placed on the role of domestic institutions in regard to assembly and the use of lethal force, especially when in a state of emergency, as to avoid further illicit activity. Secondly, the principles that guide the freedom of assembly shall be more coherently stated in the ICCPR, specifically focusing on the use of force. Drafting model legislation for nations to comply with can propel collaboration for global reform on the front of assembly rights. Thirdly, the UN should engage with both regional and domestic suggestions provided, in attempt to increase conformity with international standards. Lastly, UN peacekeepers, as well as domestic law enforcement agencies, shall be adequately equipped to manage demonstrations in a manner that complies with international standards.

It is evident that state authorities continue to morph the law to justify illegal acts of force in nations the world over. With low compliance to international standards, domestic laws successfully use loopholes to escape accountability. The issue of extrajudicial killings and arbitrary executions is widespread, especially in less developed nations and the Middle East. It is only by means of action following such reports, as that presented by Heyns, and the enforcement of rules through coherent legislation that an expected change can be brought upon.

(The author is currently an intern working for the Commonwealth Human Rights Initiative. Article edited by Devyani Srivastava, CHRI.)

• [1] Christof Heyns assumed his role as Special Rapporteur on 1 August 2010. This is first annual report to the Human Rights Council.

• [2] See Nowak, UN Covenant on Civil and Political Rights (see para. 34, fn. 9), p. 128.

• [3] Proportionality: Requires that the benefits attached to the objective pursued should outweigh the damage that would be caused through violence. Necessity : Requires that the lowest possible level of force necessary to achieve a legitimate objective should be used.

  See A/61/311, paras. 40-45; also Suárez de Guerrero v. Colombia, No. R.11/45 (A/37/40); Jiménez Vaca v. Colombia, No. 859/1999 (CCPR/C/74/D/859/1999); Güll v. Turkey, ECHR 2267/931 (4 December 2000); Zambrano-Vélez and others v. Ecuador I/A Court H.R. Series C No.166 (2007); Neira Alegria v. Peru I/A Court H.R. Series C No. 20 (1995); contrast Kelly v. United Kingdom [1993] ECHR 17579/90 (13 January 1993).

• [4] See Donatella della Porta and Herbert Reiter, eds., Policing Protest: The control of mass demonstrations in Western democracies (Minneapolis, University of Minnesota Press, 1998), and David Waddington, Policing Public Disorder: Theory and practice (Devon, Willan Publishing, 2007).

• [5] See Donatella della Porta and Herbert Reiter, eds., Policing Protest: The control of mass demonstrations in Western democracies (Minneapolis, University of Minnesota Press, 1998), and David Waddington, Policing Public Disorder: Theory and practice (Devon, Willan Publishing, 2007).

• [6] See OSCE/ODHIR, Guidelines on freedom of peaceful assembly (Warsaw, 2007), available at http://www.osce.org/odihr/24523;

• [7] See OSCE/ODHIR, Guidelines on freedom of peaceful assembly (Warsaw, 2007), available at http://www.osce.org/odihr/24523;