Editor’s note: This Q&A with two members of the United Nations Human Rights Committee opens our new series on the national security implications of the Committee’s interpretation of article 6 of the International Covenant on Civil and Political Rights (ICCPR), as set forth in its most recent Comment, General Comment 36. Yuval Shany was the Committee’s rapporteur for the General Comment.
1. Extraterritorial jurisdiction
GOODMAN: How would you describe the extraterritorial jurisdiction of the International Covenant on Civil and Political Rights (ICCPR), as defined by General Comment 36, compared to the extraterritorial jurisdiction of the European Convention of Human Rights, as defined by the European Court of Human Rights? Does the General Comment reject the approach of the European Court of Human Rights and, if so, why? What State activities, if any, might the ICCPR reach that the European Convention would not under these two approaches?
HEYNS AND SHANY:
The General Comment does not reject the position on extraterritorial jurisdiction of the European Court of Human Rights, since – like the latter institution – it supports the application of the Covenant in cases involving spatial control and control over persons (see e.g., para. 63). Still, the General Comment does suggest that there would be additional situations covered by the Covenant, where state activity in its territory or outside the territory has direct and reasonably foreseeable impact on the ability of individuals to enjoy their right to life. Such an approach has already been applied by the Committee when reviewing the use of lethal force by drones in foreign territory (Concluding Observations: USA (2014)). It has also been applied in other contexts to review foreign surveillance programs (Concluding Observations: USA (2014) Concluding Observations: UK (2015)). The Committee was of the view that such an interpretation is consistent with the approach already taken in General Comment 31, which read jurisdiction as involving the application of governmental power, and that such an interpretation avoids the protection gaps that a narrower approach entails, without imposing on states unreasonable and unforeseen obligations.
2. Jus ad bellum/the resort to force
GOODMAN: The General Comment sets forth that States that “engaged in acts of aggression as defined in international law, resulting in deprivation of life, violate ipso facto article 6 of the Covenant.” Does that proposition mean that the Committee has the competence to determine whether an act of aggression occurred? Likewise, does this understanding of the right to life, as a general matter, mean that other human rights bodies also presumably have the competence to determine whether a State has engaged in an act of aggression?
HEYNS AND SHANY:
The interpretation embraced by the General Comment is that the term arbitrarydeprivation of life in the ICCPR also has to be construed in light of other relevant norms of international law. Hence, a loss of life directly resulting from an act or omission in violation of another relevant norm of international law, such as the norms of IHL, jus ad bellumor other basic human rights norms, would be regarded ipso facto as a violation of the right to life. The Committee may, in such circumstances, evaluate conformity of the relevant state conduct with the background norms that would determine whether or not the deprivation of life was arbitrary. Still, the Committee would have to tread very carefully when evaluating, indirectly, compliance with norms which fall outside the four corners of its core expertise and which its procedures are not optimally geared to ascertain, such as obligations drawn from jus ad bellum.
The position of other human rights bodies on this question would depend first and foremost on the language of their constitutive instrument. For example, article 2 of the European Convention on Human Rights does not use the term “arbitrary” deprivation. Still, one may note that in Hassan v. UK, the Court suggested that norms originating from other bodies of international law may be read into the Convention.
3. Use of lethal force under international humanitarian law and human rights law
GOODMAN: The General Comment states, “Use of lethal force consistent with international humanitarian law and other applicable international law norms is, in general, not arbitrary” (emphasis added). What uses of force that are consistent with international humanitarian law could still be arbitrary under the ICCPR? It would be very helpful to know via some examples. Might that residual category include, for instance, an obligation to capture rather than kill when use of lethal force is clearly unnecessary to stop a threat from a suspected combatant (if there were no such obligation under international humanitarian law)? Might the residual category apply to the long-term public health consequences of military targeting operations if international humanitarian law considers such effects too remote to include in a proportionality analysis? Might the residual category include protections for religious and medical military personnel if those individuals were not covered by the principle of proportionality under international humanitarian law? Are these good examples for how we should think about the statement in the General Comment?
HEYNS AND SHANY:
The qualifier “in general” in the General Comment allows for the development of interpretations such as the ones listed in the question (but obviously does not require it). It also serves to emphasize that “arbitrary” deprivations of life are not necessarily confined to violations of the substantive norms pertaining to the right to life, such as the rules on the means and methods of warfare. Procedural shortcomings can also render a deprivation of life arbitrary, for example a failure to investigate potentially unlawful deprivation of life during armed conflict.Finally, since the Committee has taken the view that arbitrariness may also be construed in the light of other relevant norms of international law, including jus ad bellum, there may be circumstances where an act would be lawful under IHL and yet internationally unlawful, and thus arbitrary.
4. Assistance to non-State actors
GOODMAN: General Comment 36 sets forth that “States also have obligations under international law not to aid or assist activities undertaken by other States and non-State actors that violate the right to life” (emphasis added). The Comment does not cite prior Concluding Observations or Views of the Committee in the note accompanying this proposition, but instead refers to the International Law Commission’s Articles on State Responsibility and the International Court of Justice’s Bosnia Genocide Case. Is it fair to read General Comment 36 as recognition that as a matter of customary international law the rule in Article 16 of the Articles of State Responsibility may also apply to State aid and assistance to non-State actors?
HEYNS AND SHANY:
To the extent that international law imposes on non-state actors’ obligations to respect and ensure the right life, the Committee was of the view that there is no reason to limit the duty on state parties not to aid or assist to violations of relevant obligations by other states only. In adopting this approach, the Committee has followed the decision of the ICJ in Genocide (Bosnian & Herzegovina v Serbia), which similarly drew inspiration from article 16 to analyze the notion of complicity in genocide. Although it did not purport to offer a new interpretation of article 16, its position can be regarded as supportive of the need for such a new interpretation.
5. Types of legal obligations
GOODMAN: Some critics may claim that General Comment 36, in some places, elevates “soft law” norms into binding treaty obligations. The General Comment, for example, states:
“all operations of law enforcement officials should comply with relevant international standards, including the Code of Conduct for Law Enforcement Officials (General Assembly resolution 34/169)(1979) and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990);”
“The use of such weapons must be restricted to law enforcement officials who have undergone appropriate training, and must be strictly regulated in accordance with applicable international standards, including the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials;” and
“Investigations and prosecutions of potentially unlawful deprivations of life should be undertaken in accordance with relevant international standards, including the Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016).”
How do you respond to that line of criticism?
HEYNS AND SHANY:
The Committee devoted considerable attention to draw careful lines between signifying binding international standards, and “soft law” standards, by using the standard terms such as “must” and “shall” for the former, and “should” for the latter. At the same time, law evolves constantly, and there are grey areas. A comprehensive picture of a field of international law which is expected to stand the test of time for a few decades cannot be drawn by focusing only on those rules about the authority of which there is no dispute. Many “soft law” standards become custom over time or reflect general principles of law. For example, the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials has in many respects undergone and indeed contributed to such an evolution, and the Minnesota Protocol is well placed to play the same role as far as the procedural elements are concerned. In formulating a General Comment, it is inevitable that some calls will have to be made on grey areas in which evolution may be occurring.
IMAGE: Numerous national flags are seen in front of the United Nations Office in Geneva, Switzerland. (Photo by Johannes Simon/Getty Images)