Tuesday, November 20, 2018

The Duty to Protect Life 3/3

18.  The second sentence of paragraph 1 provides that the right to life “shall be protected by law”. This implies that States parties must establish a legal framework to ensure the full

enjoyment of the right to life by all individuals as may be necessary to give effect to the right to life. The duty to protect the right to life by law also includes an obligation for States parties to adopt any appropriate laws or other measures in order to protect life from all reasonably foreseeable threats, including from threats emanating from private persons and entities.

19.  The duty to protect by law the right to life entails that any substantive ground for deprivation of life must be prescribed by law, and defined with sufficient precision to avoid overly broad or arbitrary interpretation or application. [50] Since deprivation of life by the authorities of the State is a matter of the utmost gravity, the law must strictly control and limit the circumstances in which a person may be deprived of his life by such authorities [51] and the States parties must ensure full compliance with all of the relevant legal provisions. The duty to protect by law the right to life also requires States parties to organize all State organs and governance structures through which public authority is exercised in a manner consistent with the need to respect and ensure the right to life, [52] including establishing by law adequate institutions and procedures for preventing deprivation of life, investigating and prosecuting potential cases of unlawful deprivation of life, meting out punishment and providing full reparation.

20.  States parties must enact a protective legal framework which includes effective criminal prohibitions on all manifestations of violence or incitement to violence that are likely to result in a deprivation of life, such as intentional and negligent homicide, unnecessary or disproportionate use of firearms, [53] infanticide, [54] “honour” killings, [55] lynching, [56] violent hate crimes, [57] blood feuds, [58] ritual killings. [59], death threats, and terrorist attacks. The criminal sanctions attached to these crimes must be commensurate with their gravity, [60] while remaining compatible with all provisions of the Covenant.

21. The duty to take positive measures to protect the right to life derives from the general duty to ensure the rights recognized in the Covenant, which is articulated in article 2, paragraph 1, when read in conjunction with article 6, as well as from the specific duty to protect the right to life by law which is articulated in the second sentence of article 6. States parties are thus under a due diligence obligation to undertake reasonable positive measures, which do not impose on them disproportionate burdens, [61] in response to reasonably foreseeable threats to life originating from private persons and entities, whose conduct is not attributable to the State. [62] Hence, States parties are obliged to take adequate preventive measures in order to protect individuals against reasonably foreseen threats of being murdered or killed by criminals and organized crime or militia groups, including armed or terrorist groups. [63] States parties should also disband irregular armed groups, such as private armies and vigilante groups, that are responsible for deprivations of life [64] and reduce the proliferation of potentially lethal weapons to unauthorized individuals. [65] States parties must further take adequate measures of protection, including continuous supervision, [66] in order to prevent, investigate, punish and remedy arbitrary deprivation of life by private entities, such as private transportation companies, private hospitals [67] and private security firms. [68]

22. States parties must take appropriate measures to protect individuals against deprivation of life by other States, international organizations and foreign corporations operating within their territory [69] or in other areas subject to their jurisdiction. They must also take appropriate legislative and other measures to ensure that all activities taking place in whole or in part within their territory and in other places subject to their jurisdiction, but having a direct and reasonably foreseeable impact on the right to life of individuals outside their territory, including activities taken by corporate entities based in their territory or subject to their jurisdiction, [70] are consistent with article 6, taking due account of related international standards of corporate responsibility, [71] and of the right of victims to obtain an effective remedy.

23.  The duty to protect the right to life requires States parties to take special measures of protection towards persons in situation of vulnerability whose lives have been placed at particular risk because of specific threats [72] or pre-existing patterns of violence. These include human rights defenders, [73] officials fighting corruption and organized crime, humanitarian workers, journalists, [74] prominent public figures, witnesses to crime, [75] and victims of domestic and gender-based violence and human trafficking. They may also include children, [76] especially children in street situations, unaccompanied migrant children and children in situations of armed conflict, members of ethnic and religious minorities [77] and indigenous peoples, [78] lesbian, gay, bisexual, transgender and intersex (LGBTI) persons, [79] persons with albinism, [80] alleged witches, [81] displaced persons, asylum seekers, refugees [82] and stateless persons. States parties must respond urgently and effectively in order to protect individuals who find themselves under a specific threat, by adopting special measures such as the assignment of around-the-clock police protection, the issuance of protection and restraining orders against potential aggressors and, in exceptional cases, and only with the free and informed consent of the threatened individual, protective custody.

24.  Persons with disabilities, including psychosocial and intellectual disabilities, are also entitled to specific measures of protection so as to ensure their effective enjoyment of the right to life on equal basis with others. [83] Such measures of protection shall include the provision of reasonable accommodation when necessary to ensure the right to life, such as ensuring access of persons with disabilities to essential facilities and services, [84] and specific measures designed to prevent unwarranted use of force by law enforcement agents against persons with disabilities. [85]

25. States parties also have a heightened duty of care to take any necessary measures [86] to protect the lives of individuals deprived of their liberty by the State, since by arresting, detaining, imprisoning or otherwise depriving individuals of their liberty, States parties assume the responsibility to care for their life [87] and bodily integrity, and they may not rely on lack of financial resources or other logistical problems to reduce this responsibility. [88] The same heightened duty of care attaches to individuals held in private incarceration facilities operating pursuant to an authorization by the State. The duty to protect the life of all detained individuals includes providing them with the necessary medical care and appropriately regular monitoring of their health, [89] shielding them from inter-prisoner violence, [90] preventing suicides and providing reasonable accommodation for persons with disabilities. [91] A heightened duty to protect the right to life also applies to individuals quartered in liberty-restricting State-run facilities, such as mental health facilities, [92] military camps, [93] refugee camps and camps for internally displaced persons, [94] juvenile institutions and orphanages.

26.  The duty to protect life also implies that States parties should take appropriate measures to address the general conditions in society that may give rise to direct threats to life or prevent individuals from enjoying their right to life with dignity. These general conditions may include high levels of criminal and gun violence, [95] pervasive traffic and industrial accidents, [96] degradation of the environment, [97], deprivation of land, territories and resources of indigenous peoples, [98] the prevalence of life threatening diseases, such as AIDS, tuberculosis or malaria, [99] extensive substance abuse, widespread hunger and malnutrition and extreme poverty and homelessness.  [100] The measures called for addressing adequate conditions for protecting the right to life include, where necessary, measures designed to ensure access without delay by individuals to essential goods and services such as food, [101] water, shelter, health-care, [102] electricity and sanitation, and other measures designed to promote and facilitate adequate general conditions such as the bolstering of effective emergency health services, emergency response operations (including fire-fighters, ambulances and police forces) and social housing programs. States parties should also develop strategic plans for advancing the enjoyment of the right to life, which may comprise measures to fight the stigmatization associated with disabilities and diseases, including sexually transmitted diseases, which hamper access to medical care; [103] detailed plans to promote education to non-violence; and campaigns for raising awareness of gender-based violence  [104] and harmful practices, [105] and for improving access to medical examinations and treatments designed to reduce maternal and infant mortality. [106] Furthermore, States parties should also develop, when necessary, contingency plans and disaster management plans designed to increase preparedness and address natural and man-made disasters, which may adversely affect enjoyment of the right to life, such as hurricanes, tsunamis, earthquakes, radio-active accidents and massive cyberattacks resulting in disruption of essential services.

27.  An important element of the protection afforded to the right to life by the Covenant is the obligation on the States parties, where they know or should have known of potentially unlawful deprivations of life, to investigate and, where appropriate, prosecute such incidents including allegations of excessive use of force with lethal consequences. [107] The duty to investigate also arises in circumstances in which a serious risk of deprivation of life was caused by the use of potentially lethal force, even if the risk did not materialize [108] This obligation is implicit in the obligation to protect and is reinforced by the general duty to ensure the rights recognized in the Covenant, which is articulated in article 2, paragraph 1, when read in conjunction with article 6, paragraph 1, and the duty to provide an effective remedy to victims of human rights violations [109] and their relatives, [110] which is articulated in article 2, paragraph 3 of the Covenant, when read in conjunction with article 6, paragraph 1. 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), and must be aimed at ensuring that those responsible are brought to justice, [111] at promoting accountability and preventing impunity, [112] at avoiding denial of justice [113] and at drawing necessary lessons for revising practices and policies with a view to avoiding repeated violations. [114] Investigations should explore, inter alia, the legal responsibility of superior officials with regard to violations of the right to life committed by their subordinates. [115] Given the importance of the right to life, States parties must generally refrain from addressing violations of article 6 merely through administrative or disciplinary measures, and a criminal investigation is normally required, which should lead, if enough incriminating evidence is gathered, to a criminal prosecution. [116] Immunities and amnesties provided to perpetrators of intentional killings and to their superiors, and comparable measures leading to de facto or de jure impunity, are, as a rule, incompatible with the duty to respect and ensure the right to life, and to provide victims with an effective remedy. [117]

28.   Investigations into allegations of violation of article 6 [118] must always be independent, [119] impartial, [120] prompt, [121] thorough, [122] effective, [123] credible [124] and transparent, [125] and in the event that a violation is found, full reparation must be provided, including, in view of the particular circumstances of the case, adequate measures of compensation, rehabilitation and satisfaction. [126] States parties are also under an obligation to take steps to prevent the occurrence of similar violations in the future. [127] Where relevant, the investigation should include an autopsy of the victim’s body, [128] whenever possible, in the presence of a representative of the victim’s relatives. [129] States parties need to take, among other things, appropriate measures to establish the truth relating to the events leading to the deprivation of life, including the reasons and legal basis for targeting certain individuals and the procedures employed by State forces before, during and after the time in which the deprivation occurred, [130] and identifying bodies of individuals who had lost their lives. [131] States parties should also disclose relevant details about the investigation to the victim’s next of kin, [132] allow them to present new evidence, afford them with legal standing in the investigation, [133] and make public information about the investigative steps taken and the investigation’s findings, conclusions and recommendations, [134] subject to absolutely necessary redactions justified by a compelling need to protect the public interest or the privacy and other legal rights of directly affected individuals. States parties must also take the necessary steps to protect witnesses, victims and their relatives and persons conducting the investigation from threats, attacks and any act of retaliation. An investigation into violations of the right to life should commence when appropriate ex officio. [135] States should support and cooperate in good faith with international mechanisms of investigation and prosecutions addressing possible violations of article 6. [136]

29.  Loss of life occurring in custody, in unnatural circumstances, creates a presumption of arbitrary deprivation of life by State authorities, which can only be rebutted on the basis of a proper investigation which establishes the State’s compliance with its obligations under article 6. [137] States parties also have a particular duty to investigate allegations of violations of article 6 whenever State authorities have used or appear to have used firearms or other potentially lethal force outside the immediate context of an armed conflict, for example, when live fire had been used against demonstrators, [138] or when civilians were found dead in circumstances fitting a pattern of alleged violations of the right to life by State authorities. [139]

30.  The duty to respect and ensure the right to life requires States parties to refrain from deporting, extraditing or otherwise transferring individuals to countries in which there are substantial grounds for believing that a real risk exists that their right to life under article 6 of the Covenant would be violated. [140] Such a risk must be personal in nature [141] and cannot derive merely from the general conditions in the receiving State, except in the most extreme cases. [142] For example, as explained in paragraph 34 below, it would be contrary to article 6 to extradite an individual from a country that abolished the death penalty to a country in which he or she may face the death penalty. [143] Similarly, it would be inconsistent with article 6 to deport an individual to a country in which a fatwa had been issued against him by local religious authorities, without verifying that the fatwa is not likely to be followed; [144] or to deport an individual to an extremely violent country in which he has never lived, has no social or family contacts and cannot speak the local language. [145] In cases involving allegations of risk to the life of the removed individual emanating from the authorities of the receiving State, the situation of the removed individual and the conditions in the receiving States need to be assessed inter alia, based on the intent of the authorities of the receiving State, the pattern of conduct they have shown in similar cases, [146] and the availability of credible and effective assurances about their intentions. When the alleged risk to life emanates from non-state actors or foreign States operating in the territory of the receiving State, credible and effective assurances for protection by the authorities of the receiving State may be sought and internal flight options could be explored. When relying upon assurances from the receiving State of treatment upon removal, the removing State should put in place adequate mechanisms for ensuring compliance with the issued assurances from the moment of removal onwards. [147]

31.  The obligation not to extradite, deport or otherwise transfer pursuant to article 6 of the Covenant may be broader than the scope of the principle of non refoulement under international refugee law, since it may also require the protection of aliens not entitled to refugee status. States parties must, however, allow all asylum seekers claiming a real risk of a violation of their right to life in the State of origin access to refugee or other individualized or group status determination procedures that could offer them protection against refoulement. [148]


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