Sunday, November 18, 2018

The Prohibition against Arbitrary Deprivation of Life 2/3

10.  Although it inheres in every human being [23] the right to life is not absolute. The Covenant does not provide an enumeration of permissible grounds for deprivation of life, but by requiring that deprivations of life must not be arbitrary, Article 6, paragraph 1 implicitly recognizes that some deprivations of life may be non-arbitrary. For example, the use of lethal force in self-defence, under the conditions specified in paragraph 12 below would not constitute an arbitrary deprivation of life. Even those exceptional measures leading to deprivations of life which are not arbitrary per se must be applied in a manner which is not arbitrary in fact. Such exceptional measures should be established by law and accompanied by effective institutional safeguards designed to prevent arbitrary deprivations of life. Furthermore, States which have not abolished the death penalty and which are not parties to the Second Optional Protocol or other treaties providing for the abolition of the death penalty can only apply the death penalty in a non-arbitrary manner, with regard to the most serious crimes and subject to a number of strict conditions elaborated in part IV below.

11.  The second sentence of paragraph 1 of Article 6 requires that the right to life be protected by law, while the third sentence requires that no one should be arbitrarily deprived of life. The two requirements partly overlap in that a deprivation of life that lacks a legal basis or is otherwise inconsistent with life-protecting laws and procedures is, as a rule, arbitrary in nature. For example, a death sentence issued following legal proceedings conducted in violation of domestic laws of criminal procedure or evidence will generally be both unlawful and arbitrary.

12.  Deprivation of life is, as a rule, arbitrary if it is inconsistent with international law or domestic law. [24] A deprivation of life may, nevertheless, be authorized by domestic law and still be arbitrary. The notion of “arbitrariness” is not to be fully equated with “against the law”, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability, and due process of law [25] as well as elements of reasonableness, necessity, and proportionality. In order not to be qualified as arbitrary under article 6, the application of potentially lethal force by a private person acting in selfdefense, or by another person coming to his or her defence, must be strictly necessary in view of the threat posed by the attacker; it must represent a method of last resort after other alternatives have been exhausted or deemed inadequate; [26] the amount of force applied cannot exceed the amount strictly needed for responding to the threat; the force applied must be carefully directed only against the attacker; [27] and the threat responded to must involve imminent death or serious injury. [28] The use of potentially lethal force for law enforcement purposes is an extreme measure [29], which should be resorted to only when strictly necessary in order to protect life or prevent serious injury from an imminent threat. [30] It cannot be used, for example, in order to prevent the escape from custody of a suspected criminal or a convict who does not pose a serious and imminent threat to the lives or bodily integrity of others. [31] The intentional taking of life by any means is permissible only if it is strictly necessary in order to protect life from an imminent threat. [32]

13.  States parties are expected to take all necessary measures intended to prevent arbitrary deprivations of life by their law enforcement officials, including soldiers charged with law enforcement missions. These measures include appropriate legislation controlling the use of lethal force by law enforcement officials, procedures designed to ensure that law enforcement actions are adequately planned in a manner consistent with the need to minimize the risk they pose to human life, [33] mandatory reporting, review, and investigation of lethal incidents [34] and other life-threatening incidents, and the supplying of forces responsible for crowd control with effective "less-lethal” means and adequate protective equipment in order to obviate their need to resort to lethal force. [35] In particular, 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), [36] and law enforcement officials should undergo appropriate training designed to inculcate these standards [37] so as to ensure, in all circumstances, the fullest respect for the right to life. [38]

14. While preferable to more lethal weapons, States parties should ensure that “lesslethal” weapons are subject to strict independent testing and evaluate and monitor the impact on the right to life of weapons such as electro-muscular disruption devices (Tasers), [39] rubber or foam bullets, and other attenuating energy projectiles, [40] which are designed for use or are actually used by law enforcement officials, including soldiers charged with law enforcement missions. [41] 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. [42] Furthermore, such “less-lethal” weapons can only be employed, subject to strict requirements of necessity and proportionality, in situations in which other less harmful measures have proven to be, or clearly are ineffective to address the threat. [43] States parties should not resort to “less-lethal” weapons in situations of crowd control which can be addressed through less harmful means, [44] especially situations involving the exercise of the right to peaceful assembly.

15.  When private individuals or entities are empowered or authorized by a State party to employ force with potentially lethal consequences, the State party is under an obligation to ensure that such employment of force actually complies with article 6 and remains responsible for any failure to comply. [45] Among other things, a State party must rigorously limit the powers afforded to private actors, and ensure that strict and effective measures of monitoring and control, and adequate training, are in place, in order to guarantee, inter alia, that the powers granted are not misused, and do not lead to arbitrary deprivation of life. For example, a State party must take adequate measures to ensure that persons who were involved or are currently involved in serious human rights violations or abuses are excluded from private security entities empowered or authorized to employ force. [46] It must also ensure that victims of arbitrary deprivation of life by private individuals or entities empowered or authorized by the State party are granted an effective remedy. [47]

16.  Article 6, paragraphs 2, 4 and 5 implicitly recognize that countries which have not abolished the death penalty and that have not ratified the Second Optional Protocol are not legally barred under the Covenant from applying the death penalty with regard to the most serious crimes subject to a number of strict conditions. Other procedures regulating activity that may result in deprivation of life, such as protocols for administering new drugs, must be established by law, accompanied by effective institutional safeguards designed to prevent arbitrary deprivation of life, and be compatible with other provisions of the Covenant.

17.  The deprivation of life of individuals through acts or omissions that violate provisions of the Covenant other than article 6 is, as a rule, arbitrary in nature. This includes, for example, the use of force resulting in the death of demonstrators exercising their right of freedom of assembly; [48] and the passing of a death sentence following a trial which failed to meet the due process requirements of article 14 of the Covenant. [49

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