Sixty-first session * A/61/150. Agenda item 66 (b) of the provisional agenda* Promotion and protection of human rights: human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms Extrajudicial, summary or arbitrary executions Note by the Secretary-General The Secretary-General has the honour to transmit to the members of the General Assembly the interim report on the worldwide situation in regard to extrajudicial, summary or arbitrary executions submitted by Philip Alston, Special Rapporteur, in accordance with paragraph 20 of General Assembly resolution 59/197. Summary This report is submitted pursuant to General Assembly resolution 59/197. In its first part the Special Rapporteur reviews the situation of country visits requested and replies received thereto. He concludes that the prolonged lack of a positive reply by numerous countries, including members of the Human Rights Council, is deeply problematic. The Special Rapporteur then reviews developments in the two countries he visited in the course of 2005, Nigeria and Sri Lanka. He concludes, inter alia, that there is an urgent need for a robust international human rights monitoring mission in Sri Lanka. The second part of the report deals with substantive issues of relevance to the mandate, elaborating on principles of international law that are applicable to numerous cases raised by the Special Rapporteur in communications with Governments. The Special Rapporteur explores the standards applicable to the use of lethal force by law enforcement officials, explaining the role of the twin principles of proportionality and necessity, and highlighting the interplay between customary law, treaty law and so-called soft law standards in this respect. He also explains the central concept of due diligence obligations, both with respect to the recently adopted International Convention on the Protection of All Persons from Enforced Disappearance and to deaths in custody. Finally, the Special Rapporteur discusses problems raised by certain legal doctrines that enhance the role of victims in death penalty cases, both in the decision on whether capital punishment should be executed and in the actual execution. The Special Rapporteur’s recommendations to the General Assembly concern country visits, the need to investigate the killings in Gaza, Israel and Lebanon since June 2006, and international human rights monitoring in Sri Lanka. Contents Paragraphs Page Introduction 1–2 3 Visits 3–29 3 Visits requested: a system close to crisis 4–6 3 Updates on visits undertaken 7–29 4 Developing the legal framework of accountability for extrajudicial executions 30–64 11 The evolving human rights regime and the role of “soft law” standards 31–32 11 Case study: the use of lethal force by law enforcement officials 33–45 12 The central concept of due diligence 46–54 16 Balancing State responsibilities against legal doctrines seeking to empower victims 55–64 19 Recommendations 65–67 21 I. Introduction 1. This report to the General Assembly does not deal with all aspects of the work currently under way in connection with the mandate of the Special Rapporteur. Instead, the focus is on reporting about in situ visits already undertaken or requested and on exploring some of the most significant issues that have arisen in the implementation of the mandate. These include the legal framework of accountability for extrajudicial executions, with particular emphasis on the role of “soft law” standards. That role is illustrated by reference to the principles governing the use of lethal force by law enforcement officials and the evolution and codification of the concept of due diligence. Finally, attention is drawn to the complexity of seeking to reconcile the responsibilities of States with efforts to empower victims in the context of extrajudicial executions. 2. In the preparation of this report I am grateful to the staff of the Office of the High Commissioner for Human Rights for their assistance, and to William Abresch, Director of the Project on Extrajudicial Executions based at the New York University School of Law, who has provided first-rate assistance and advice. II. Visits 3. The system of on-site country visits is an indispensable component of the special procedures operating under the auspices of the Human Rights Council. Those procedures are, in turn, crucial to the credibility of the Council and of the United Nations as a whole in demonstrating a capacity to respond effectively, systematically and even-handedly to violations of human rights. It is, however, a system which is close to crisis, at least in so far as visits to investigate issues of extrajudicial executions are concerned. A. Visits requested: a system close to crisis 4. As of August 2006 I had requested visits to 22 countries and the Occupied Palestinian Territories. Of those 22, only three countries — Guatemala, Lebanon and Peru — have actually proceeded with plans for a visit. The visit to Guatemala is scheduled for August 2006, the visit to Lebanon was postponed for security reasons and the visit to Peru was postponed for technical reasons. The Palestinian Authority has issued an invitation. 5. The responses of the remaining 19 countries have ranged from complete silence, through formal acknowledgement, to acceptance in principle but without meaningful follow-up. In light of the undertakings offered in connection with the recent elections to the Human Rights Council it is especially noteworthy that eight Council members have failed to issue requested invitations: Bangladesh, China, India, Indonesia, Pakistan, the Philippines, the Russian Federation, and Saudi Arabia. In some cases the relevant requests were first made some six years ago. Another State has issued a “standing invitation” to the special procedures — the Islamic Republic of Iran — but has repeatedly failed to respond to requests that dates for a visit be set, despite several meetings and an extensive correspondence. The remaining States with outstanding requests are: El Salvador, Israel, Kenya, the Lao People’s Democratic Republic, Nepal, Thailand, Togo, Uganda, Uzbekistan and Viet Nam. It is recommended below that the General Assembly take steps to address this deeply problematic situation. 6. The crisis in Lebanon, Israel and the Occupied Palestinian Territories has also been a major concern. A visit to the Gaza Strip and Israel was requested on 16 June 2006. The Palestinian Authority agreed on 3 July 2006, but Israel has not replied. On 19 July 2006 a further request was addressed to Lebanon and Israel. The Government of Lebanon issued an invitation on 28 July 2006 but no response has been received from Israel. On 2 August 2006, and after consultation with the President of the Human Rights Council I and three other mandate holders made a joint request to which Lebanon responded affirmatively on 3 August 2006; Israel did not respond. A joint mission to Beirut starting on 7 August was subsequently postponed due to the deterioration of the security situation in the region. In view of the scale of civilian deaths involved and the extent to which relevant rules of human rights and humanitarian law have been invoked, a thorough and systematic evaluation of allegations concerning extrajudicial executions will be indispensable. B. Updates on visits undertaken 1. Nigeria 7. I visited Nigeria in June/July 2005 and met with senior federal government officials, three state governors, representatives of civil society and many others. My report concluded that serious problems exist in relation to extrajudicial executions carried out by the police, security forces and vigilante groups. It called for major reforms affecting many organs of Nigerian society. Since my visit, there has been no official response from the Government to my report. A number of encouraging reforms have, however, been pursued following the findings of the Goodluck Commission established in the wake of the killing of the Apo 6 that immediately preceded my visit. According to reports these include the establishment of a Presidential Commission on police reform in Nigeria, revitalization of the forensic and fingerprinting capacities of the Nigeria Police, the payment of compensation to the victims of police killing in the Apo case and the prosecution of police officers for the killings. 8. The overall situation, however, has deteriorated in some significant respects and there is a widely held perception that “the international community has been conspicuously silent about human rights abuses since civilian government was restored.” The need for action has been underscored by growing tensions in the Niger Delta region, including the emergence of a new vigilante group, the Movement for the Emancipation of the Niger Delta (MEND), which has been accused of kidnappings, attacks on government forces, sabotage of oil installations, and threats to disrupt the future flow of oil. While the principal bone of contention is the control of mineral resources and resulting revenues, the issues highlighted in my report also remain central to establishing an ethos of transparency and accountability and ending abuses by the police and security forces. 9. There are a number of steps which the Government of Nigeria should undertake as a matter of urgency. They include: (a) The removal of armed robbery as a capital offence; (b) Amendment of Police Order No. 237 which currently gives the police an almost unlimited capacity to shoot and kill alleged suspects; (c) The establishment of a National Registry of all persons killed at the hands of the police each year; (d) Formally acknowledging the incompatibility with both the Federal Constitution and Nigeria’s human rights obligations of State laws imposing the death penalty for offences such as sodomy and adultery; and (e) Immediate commutation of the death sentence of every prisoner who has served more than five years in conditions on death row, which are generally scandalously unsatisfactory. 2. Sri Lanka 1. The human rights situation 10. I visited Sri Lanka in November/December 2005 and met with government officials, members of civil society and representatives of the Liberation Tigers of Tamil Eelam (LTTE). The conflict in Sri Lanka is complex, but its outline may be briefly summarized. LTTE began fighting the Government in the late 1970s with the aim of establishing a State of Tamil Eelam in the north and east of the island. In February 2002, the Government and LTTE had signed the Ceasefire Agreement (CFA) brokered by the Government of Norway. In March 2004 the LTTE Eastern Province commander, Colonel Karuna, split with the LTTE leadership, initially taking with him perhaps one fourth of the LTTE cadres. The “Karuna group” has since killed many LTTE cadres and supporters. Attacks on government forces that occurred during my visit placed CFA under unprecedented stress. Three weeks later the Sri Lanka Monitoring Mission warned that “war may not be far away”, and subsequent events have only intensified this perception. At times like this, it is often argued that respect for human rights must await the emergence of political or military solutions. My findings suggest, however, that many of the killings taking place in Sri Lanka are best characterized as human rights violations and best addressed through human rights implementation and monitoring. 11. Civilians are not simply “caught in the crossfire” of this conflict: rather, it involves the intentional targeting of both combatants and civilians, and attacks on both have increased sharply since my visit. From 2002 to 2005, when compliance with CFA was fairly strong, relatively few people were killed each year. As of August 2006, the rate of killing has increased dramatically and some estimates predict a toll of at least 1,200 persons in 2006 if current trends persist. While a full-scale war has thus far been averted, a historical perspective reveals the distinct possibility of further escalation. Up until February 2002, the conflict-related death toll in Sri Lanka was roughly 60,000 people. It would be truly tragic if the past were reprised, especially because the current violence has no potential to lay the groundwork for a future political settlement. 12. The conflict between the Government and LTTE is ultimately a struggle for legitimacy, not territory. The conflict has no military solution, and mere adjustment of the facts on the ground will not fundamentally change either party’s position in future negotiations. The hopes of LTTE for autonomy or independence rest on persuading the domestic and international communities that this would be the best solution in human rights terms. However, LTTE has a record of using killings to deter civilians from exercising the freedoms of expression, movement, association, and participation in public affairs. As it stands, no outside observer could wish rule by LTTE on the entire Tamil community, much less on the Sinhalese and the Muslims. 13. The Government should not, however, interpret the widespread proscription of LTTE as a terrorist organization as an endorsement of its own record. Neither its past nor its present conduct would justify great faith in its ability to respect equally the rights of all citizens. Indeed, it is an enduring scandal that there have been virtually no convictions of government officials for killing Tamils, and many Tamils doubt that the rule of law will protect their lives. 14. A resolution of this conflict that would merit the international community’s endorsement will require the Government, LTTE, or both, to demonstrate genuine respect for human rights. This is reinforced by the notion, endorsed by the General Assembly, that there is a “responsibility to protect”. 15. The strategic importance of achieving and maintaining international legitimacy grounded in respect for human rights is not completely lost on either the Government or LTTE. Indeed, the discourse of human rights is central to the parties’ own understandings of the conflict’s origins and conduct. Many Tamils, whether or not supportive of LTTE, view the massacres of July 1983 as a legitimate cause for the militarization of Tamil nationalism. 16. When seeking international legitimacy, parties to a conflict can either respect human rights and humanitarian law or can cover up abuses. The conflict in Sri Lanka exhibits aspects of both strategies. Both main parties have shown some restraint, committing human rights abuses that are less pervasive and barbaric than those seen in some recent conflicts. On the other hand, both also violate human rights and humanitarian law while attempting to avoid the loss of legitimacy by committing abuses in a manner that permits them maximum deniability. In Sri Lanka, no one claims responsibility for any violence short of a pitched battle. Indeed, proxies, the subversion of accountability mechanisms and disinformation are used to undermine efforts by objective observers to reach compelling conclusions as to responsibility for particular abuses. It is the possibility of employing a strategy of deniability in order to simulate respect for human rights that must be foreclosed so as to pressure the Government and LTTE to seek legitimacy through actual respect for human rights. 17. Precisely because the struggle for legitimacy, including international legitimacy, is so central to this conflict, the international community is exceptionally well positioned to contribute to its amelioration and, ultimately, to its resolution. Thus the critical need is for international human rights monitoring that would definitively identify those responsible for abuses. Effective monitoring would stand a real chance of inducing genuine rather than simulated respect for human rights. Such respect — worthwhile in its own right — would, in turn, also create an environment in which the country’s communities might be able to envision a future in which they did not fear peace as well as war. 2. The urgent need for international human rights monitoring 18. When I visited Sri Lanka, there was a near universal consensus that more effective human rights monitoring was required, but there was considerable disagreement regarding the appropriate mechanism for achieving this. It was generally understood that no domestic mechanism could respond effectively to conflict-related killings, and that remains the case today. Most interlocutors from civil society thought that a United Nations monitoring mission would be the most effective mechanism, in light of the Organization’s established expertise in human rights monitoring and lack of political involvement in the peace process. In contrast, government officials and representatives of LTTE expressed their shared preference for strengthening the Sri Lanka Monitoring Mission (SLMM), the body established by CFA to monitor ceasefire compliance, rather than introducing an additional monitoring mechanism focused on human rights compliance. 19. My conclusion at that time was that SLMM could be strengthened in ways that would permit it to provide relatively effective human rights monitoring. The institutional capacity of SLMM to play this role was subsequently demonstrated in at least some measure. Following my visit, the Government of Norway and SLMM took various actions that represented a real attempt to play a more effective role in responding to human rights violations. In March 2006, Major General Ulf Henricsson of Sweden was appointed Head of Mission of SLMM, reducing Norway’s conflict of interest between providing accountability for violations and advancing the peace process. In April 2006, SLMM began to exhibit a greater concern with violence directed against civilians, referring for the first time to the “extrajudicial killings of civilians”. The creativity of the Government of Norway and the increasing assertiveness of SLMM on behalf of human rights are truly commendable; however, for reasons beyond their control, the insufficiency of SLMM to meet the need for human rights monitoring in Sri Lanka is now evident. SLMM was never going to be a perfect human rights monitoring mechanism, but today even the opportunity for it to serve as a “second best” option may be passing. 20. The fundamental reason for SLMM is that it exists at the mercy of the parties. At the time of writing, CFA remains in force. However, the Government or LTTE could elect to unilaterally terminate CFA at any time, thus withdrawing the mandate of SLMM. Regardless whether CFA comes to be terminated, the ability of SLMM to conduct monitoring has been gravely undermined. In particular, SLMM has been severely weakened by the decision of LTTE to insist on the withdrawal of monitors who are nationals of EU member States, thereby cutting the SLMM’s strength by two thirds. 21. In my report, I observed that, “From a human rights perspective, the goal of strengthening SLMM’s human rights role is clearly not sufficient in itself in the medium-term. For pragmatic reasons it seems to be the best interim measure, but before long significantly more will be needed. If the ceasefire fails, and that now appears to be an all too real possibility, the SLMM’s role will be in question and there will be an urgent and pressing need to establish a full-fledged international human rights monitoring mission.” That time has come. There is today an urgent need for an international human rights monitoring mission for Sri Lanka. 22. It is thus appropriate to reiterate some of the requirements for effective monitoring in the particular situation of Sri Lanka today: • The details of alleged incidents, the results of investigation, and the basis for the monitoring mission’s determination of responsibility should be made public (even if information is redacted to protect individuals). • The investigative process should be designed to prioritize the protection of witnesses against intimidation and violence. • The mandate of the monitoring mission should not be geographically limited, inasmuch as conflict-related human rights violations occur throughout the country. • Because a key purpose of monitoring is to limit the possibility of conducting deniable human rights abuses, the monitoring mission should command a high level of investigative and forensic capacity. This requires, inter alia, persons with police training, persons with medical training, and Sinhala and Tamil interpreters. • The monitoring mission should be independent of any peace process. Two implications of this are that: – Regardless whether CFA remains in force, the monitoring mission should not be called upon to investigate violations of CFA. The distinction between violations of human rights and humanitarian law, on the one hand, and of violations of a ceasefire agreement, on the other, must be preserved; – The monitoring mission should report to a neutral body. 23. This list should not be considered remotely comprehensive. In particular, the design of any monitoring mission must draw upon the lessons learned from past initiatives. The intention of this list is simply to highlight certain requirements for effective monitoring that are specific to Sri Lanka in light of the dynamics and logic of human rights abuse in that country. The United Nations would be well situated to establish a mission fulfilling these requirements. 3. The undermining of independent oversight bodies 24. While my report was critical of the Government’s near-complete failure to prosecute or even discipline members of the security forces who commit extrajudicial executions, I credited the Government with taking an important step towards accountability by constitutionally guaranteeing the independence of key oversight bodies, including the National Human Rights Commission (HRC) and the National Police Commission (NPC). I reported that, however, the constitutionally granted authority of NPC to reform the police force had already been challenged by the Inspector General of Police (IGP) and that NPC had received relatively little support from other political actors in this turf war. I noted that, “While most members of civil society and Government that I talked with had favourable impressions of NPC’s efforts thus far, some also feared that, in struggling to insulate the police from politics, it would fall victim to politics itself”. Since my visit, HRC and NPC have both fallen victim to politics. 25. The very concept of a body designed to oversee the conduct of the executive branch of Government is that it be independent of that branch. The mechanism for appointments to HRC and NPC laid out in the Seventeenth Amendment to the Constitution was designed to ensure such independence. Under its provisions, there are two stages of appointments. First, various political actors, including parties in opposition, are permitted to select members of the Constitutional Council. The Constitutional Council, in turn, selects the members of various bodies, including HRC and NPC. 26. The Constitutional Council has not operated since a controversy over who has the authority to select one of its members erupted in March 2005. When the terms of the commissioners of NPC and HRC ended, in November 2005 and April 2006, respectively, those bodies became defunct. The President has subsequently selected and appointed individuals to HRC and NPC, circumventing the procedure specified by the Seventeenth Amendment. 27. Numerous domestic actors have argued that for the Constitutional Council to carry out its duties despite the failure to appoint one of its members would comply with the constitutional procedure. It is not, however, my place to try to resolve a domestic constitutional crisis. But it does seem essential to stress the incompatibility of the current “solution” with international standards. There is no worse means by which to ensure an oversight body’s independence from the executive than for the executive to directly appoint its members. Similarly, the appointment of a Cabinet-level Minister for Disaster Management and Human Rights cannot, despite some clear achievements on the part of the Minister, be considered to substitute for independent human rights oversight. 4. The role of the diaspora 28. In my report, I argued that the Sri Lankan diaspora has a responsibility to use its considerable political and financial influence and funding to promote and to insist upon respect for human rights, and the report recommended that Governments with a significant diaspora population “should enter into serious dialogue with those communities in light of the findings in this report”. 29. I have since taken steps to stimulate such a dialogue. At the time of writing, I have had my report translated into Tamil and I hope that a Sinhala translation will be completed by the time this report comes before the General Assembly. In August 2006, I spoke at a public meeting in London attended by a broad cross-section of the diaspora and was heartened by the range of questions and comments that I received. III. Developing the legal framework of accountability for extrajudicial executions 30. Most international human rights norms are, by their very nature, stated in broad and somewhat open-ended terms. It thus falls to various interpretative institutions established at the national and international levels to undertake the process of elaborating upon the content and requirements of the relevant standards so that they are capable of providing practical guidance in specific contexts. An important function of the Special Rapporteur is to assist this process. The present analysis thus seeks to shed some light on key issues. A. The evolving human rights regime and the role of “soft law” standards 31. The international legal regime applicable to extrajudicial executions is ultimately grounded in norms of customary international law, the Universal Declaration of Human Rights and the provisions of widely ratified international treaties. While the direct applicability of the last will vary from country to country according to its record of ratification, it remains the case that there is a significant influence exerted by non-universally ratified treaty norms and by “soft law” standards in the shaping and interpretation of the basic regime. This is not to suggest that all relevant norms, whether formally accepted or not by a given country, are nevertheless applicable to it. This is patently not the case, but it is important to acknowledge that the formation and evolution of international human rights norms are not black and white or unidimensional processes. Just as the Standard Minimum Rules for the Treatment of Prisoners exerted considerable and systematic influence before they became an accepted part of customary international law, so too do various bodies of principles that have been adopted by United Nations bodies such as the Economic and Social Council and the General Assembly exert a significant influence over the interpretative context which operates today in relation to situations involving extrajudicial executions. In other words, the jump from the status of a declaratory but non-binding declaration or statement of principles or guidelines to that of a customary norm is a gradual and often imperceptible process. It is this process which gives salience to the key aids to interpretation which are regularly invoked by United Nations human rights bodies and other institutional arrangements entrusted with the interpretation and application of human rights standards. 32. In order to illustrate these processes the following sections of this report provide two case studies. One concerns the use of lethal force by law enforcement officials, illustrating how non-binding principles can assist in determining the content of binding rules. The second concerns the concept of due diligence and notes its evolution from a principle enunciated by human rights courts to one which is now firmly entrenched in treaty law. B. Case study: the use of lethal force by law enforcement officials 33. One issue frequently underscored in communications that I have sent to Governments is that of the lethal use of force by law enforcement officials. My report on Nigeria provides a compelling example of what happens when the rules governing such situations are inconsistent with the fundamental principles reflected in the basic international norms, as elaborated upon in standards originally adopted on a non-binding basis. Nigeria’s standing “rules for guidance in use of firearms by the police” (Police Order No. 237) authorize the use of firearms if a police officer cannot “by any other means” arrest or rearrest any person who is suspected (or has already been convicted) of an offence punishable by death or at least seven years’ imprisonment. The rules which elaborate upon this provision are even more permissive. They note that any person who seeks to escape from lawful custody commits a felony warranting a seven-year sentence. As a result shooting to kill someone charged with stealing goods of negligible value would be justified if the person were alleged to be escaping from custody. The only qualification contained in the rules is that “firearms should only be used if there are no other means of effecting his arrest, and the circumstances are such that his subsequent arrest is unlikely”. 34. These rules attempt to codify the principle of necessity, but completely ignore the principle of proportionality which, as we shall see below, constitute the twin pillars of international law in this area. Rather than permitting the intentional lethal use of force only “in order to protect life”, these rules permit deliberate killing even to prevent the possible repetition of minor thefts. The consequences in relation to armed robbery — a capital offence in Nigeria — have been devastating. According to official statistics, 2,402 armed robbers have been killed by the police since 2000. (In 2004, one “armed robber” was killed for every six reported armed robberies.) While many of these were executions that would not have satisfied even the principle of necessity, it is the inadequacy of the rules on proportionality that makes the pretext of a fleeing armed robber available. Another example from Nigeria illuminates the human consequences of failing to properly incorporate international standards on necessity into domestic rules on the use of lethal force. In “operation fire-for-fire”, a 2002 campaign against crime, the Inspector-General of Police pre-authorized police officers to fire in “very difficult situations”. The result, revealed in police statistics, was that in the first 100 days, 225 suspected criminals were killed, along with 41 innocent bystanders. 35. The principles of international human rights law applicable in such contexts draw significantly upon the Code of Conduct for Law Enforcement Officials and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. Each of these instruments has played a central role in defining the limits to the use of force by law enforcement officials. They are of special interest for two reasons. First, they were developed through intensive dialogue between law enforcement experts and human rights experts. Second, the process of their development and adoption involved a very large number of States and provides an indication of the near universal consensus on their content. Of course, neither the consensus between law enforcement and human rights experts nor the consensus among States about the desirability of compliance with the Code of Conduct and the Basic Principles is definitive in terms of their formal legal status, and some of the provisions are clearly guidelines rather than legal dictates. However, some provisions of the Code of Conduct and the Basic Principles are rigorous applications of legal rules that States have otherwise assumed under customary or conventional international law. Among these are the instruments’ core provisions on the use of force. Thus, the substance of article 3 of the Code of Conduct and principle 9 of the Basic Principles reflects binding international law. 36. Human rights standards on the use of force derive from the understanding that the irreversibility of death justifies stringent safeguards for the right to life, especially in relation to due process. A judicial procedure, respectful of due process and arriving at a final judgement, is generally the sine qua non without which a decision by the State and its agents to kill someone will constitute an “arbitrary deprivation of life” and, thus, violate the right to life. 37. Arbitrariness is not, however, simply the opposite of due process. The human rights obligations of States include protecting the right to life of private individuals against the actions of other private individuals. That is, States must not only refrain from killing but must also exercise due diligence in preventing murder. Clearly there are instances in which the decision not to kill someone suspected of, or engaged in, the commission of a violent crime would itself result in the deaths of others. The typical situation would be one in which a suspect is threatening someone with a gun, apparently with the intention of shooting him, and in which the officer could expect to be shot if he attempted to arrest the gunman and bring him before a court. No reasonable interpretation of the State’s obligation to respect the right to life would definitively rule out a police officer’s decision to use lethal force in such a situation. As a result, due process remains the ideal against which “second best” safeguards for such situations must be measured. Necessity and proportionality are among the most fundamental of these second best safeguards. 38. The safeguards of necessity and proportionality are included in article 3 of the Code of Conduct and its commentary. Article 3 states: “Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.” The commentary appended to this provision explains that: “... “(b) ... In no case should this provision be interpreted to authorize the use of force which is disproportionate to the legitimate objective to be achieved. “(c) The use of firearms is considered an extreme measure. In general, firearms should not be used except when a suspected offender offers armed resistance or otherwise jeopardizes the lives of others and less extreme measures are not sufficient to restrain or apprehend the suspected offender. ...” 39. Similarly, the Basic Principles’ most general statement on the use of lethal force, principle 9, provides that: “Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.” 40. To fully understand the legal basis for these provisions it is important to distinguish the proportionality criterion from the necessity criterion and to evaluate the contribution each safeguard makes to reconciling the obligations to respect and to ensure while adhering as closely as possible to the due process ideal. 41. While the proportionality requirement imposes an absolute ceiling on the permissible level of force based on the threat posed by the suspect to others, the necessity requirement imposes an obligation to minimize the level of force applied regardless of the level of force that would be proportionate. With respect to the use of firearms, the applicable standard of necessity is that the resort to this potentially lethal measure must be made “only when less extreme means are insufficient to achieve these objectives”. The question of a measure’s sufficiency can hardly be determined in advance. It is, rather, determined by the nature of the resistance put up by the suspect. In general, the way in which law enforcement officials should determine the necessary level of force is by starting at a low level and, in so far as that proves insufficient in the particular case, graduating, or escalating, the use of force. Indeed, force should not normally be the first resort: so far as the circumstances permit, law enforcement officials should attempt to resolve situations through non-violent means, such as persuasion and negotiation. As expressed in the Basic Principles, “They may use force and firearms only if other means remain ineffective or without any promise of achieving the intended result”. If it should become necessary to use force, the level of that force should be escalated as gradually as possible. While the relevant provisions of the Basic Principles are not exhaustive, they are suggestive of the course such escalation might take. As a first step, officials should attempt to “restrain or apprehend the suspected offender” without using force that carries a high risk of death — perhaps by physically seizing the suspect. If the use of firearms does prove necessary, law enforcement officials should “give a clear warning of their intent to use firearms, with sufficient time for the warning to be observed, unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons, or would be clearly inappropriate or pointless in the circumstances of the incident”. Like the escalation of force, one purpose of providing a warning is to avoid prejudging the level of resistance that will be shown. If the warning does not suffice, any use of firearms should be such as to “[m]inimize damage and injury”. The furthest extreme on this continuum of force is, of course, the intentional lethal use of force. This must be resorted to only when “strictly unavoidable”. 42. Proportionality deals with the question of how much force might be permissible. More precisely, the criterion of proportionality between the force used and the legitimate objective for which it is used requires that the escalation of force be broken off when the consequences for the suspect of applying a higher level of force would “outweigh” the value of the objective. Proportionality could be said to set the point up to which the lives and well-being of others may justify inflicting force against the suspect — and past which force would be unjustifiable and, in so far as it should result in death, a violation of the right to life. The general standard for proportionality is that the use of force must be “in proportion to the seriousness of the offence and the legitimate objectives to be achieved”. From this general standard, other more precise standards may be derived for when particular levels of force may be used. The Basic Principles permit the intentional lethal use of force only “in order to protect life”. 43. With respect to the proportionality of other (potentially lethal) uses of firearms, principle 9 states: “Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape. ...” 44. This list of objectives proportionate to the use of firearms is distinguished from the objective “to protect life” only in that it includes the disruption of some conduct that is less certain, though still likely, to cost lives. The notion of proportionality at work here is fairly simple — taking someone’s life is permitted only to protect the lives of others from him or her — but gains a measure of complexity inasmuch as use of force rules must be applicable ex ante. The fundamental question is of proportionality between the objectively anticipatable likelihood that the use of force will result in death and the comparable anticipatable likelihood that failing to incapacitate the individual would result in the deaths of others. It must also be remembered that proportionality is a requirement additional to necessity. The principle of necessity will, thus, never justify the use of disproportionate force. If all proportionate measures have proved insufficient to apprehend a suspect, he or she must be permitted to escape. 45. It is tempting to focus on the ethical probity of law enforcement officials rather than the domestic rules regulating the use of lethal force. However, as I indicated in my first report to the Commission, in relation to respect for the right to life by military personnel, “Remedial proposals to inculcate higher ‘ethical’ standards or to develop a greater ‘moral’ sensibility [are] inadequate. Respect for human rights and humanitarian law are legally required and the relevant standards of conduct are spelled out in considerable detail. Remedial measures must be based squarely on those standards”. C. The central concept of due diligence 1. General applicability: the case of disappearances 46. The adoption by the Human Rights Council by its resolution 2006/1 of the International Convention for the Protection of All Persons from Enforced Disappearance (hereafter Disappearance Convention) was a key accomplishment of its first session both for its potential to protect individuals and for its contribution to the development and codification of the principle of due diligence. 47. In my first report to the Commission, I reviewed the antecedents of the principle in the context of the struggle against disappearances more than 25 years ago. The approach pioneered within the United Nations setting was adopted and further developed by the Inter-American Court of Human Rights in particular. 48. The Disappearance Convention represents the most sophisticated effort to date in articulating the due diligence standard relating to a State’s affirmative obligations to ensure human rights. It exemplifies the process by which a principle that is implicit in the international human rights regime is developed by experts and refined in the jurisprudence of human rights courts before being effectively codified in treaty law. Although the offence is defined primarily in terms of acts for which the State bears some direct responsibility, the Convention specifically requires States to “take appropriate measures to investigate [the relevant] acts [when they have been] committed by persons or groups of persons acting without the authorization, support or acquiescence of the State and to bring those responsible to justice”. In addition it elaborates in some detail upon the required investigative process, it makes the connection between transparency and proper record-keeping and the avoidance of disappearances, and it addresses not only the necessity for, but also the content of, training for those responsible for detainees. These provisions will be influential in interpreting the implications of States’ due diligence obligations in other contexts. 2. Specific applicability: deaths in custody 49. The category “deaths in custody” encompasses a staggering array of abuses. With respect to this issue, my last report to the Commission on Human Rights referred to 25 communications sent to 19 countries regarding more than 185 victims. (Roughly one out of four of the individual cases brought to the attention of this mandate concerns a death in custody.) These communications concerned allegations of prisoners being executed with firearms and, in one case, by immolation; torture or other ill-treatment, often for the purpose of extracting a confession, beatings, and sexual abuse resulting in death; killings by guards to break up riots or demonstrations; detainees being transported or held in containers that were so overcrowded or lacking in ventilation as to lead to the deaths of large numbers of detainees; and guards standing by while persons in custody were killed by private citizens. This catalogue of abuses indicates that the specificity of custodial death as a category of violation is not due to the cause of death. Executions, the use of excessive force, and other abuses resulting in death occur against persons outside of custody as well as in custody. 50. What makes “custodial death” a useful legal category is not the character of the abuse inflicted on the victim but the implications of the custodial context for the State’s human rights obligations. These implications concern the State obligations to both prevent deaths and respond to those deaths that occur. When the State detains an individual, it is held to a heightened level of diligence in protecting that individual’s rights. When an individual dies in State custody, there is a presumption of State responsibility. These interlocking implications produce the legal specificity of custodial death as a human rights violation. 51. With respect to the prevention of deaths in custody, States have heightened responsibilities for persons within their custody. In all circumstances, States are obligated both to refrain from committing acts that violate individual rights and to take appropriate measures to prevent human rights abuses by private persons. The general obligation assumed by each State party to the International Covenant on Civil and Political Rights (ICCPR) is, thus, “to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant. ...” This obligation has notably far-reaching implications in the custodial context. With respect to the obligation to respect rights, the controlled character of the custodial environment permits States to exercise unusually comprehensive control over the conduct of government officials — police officers, prison guards, soldiers, etc. — in order to prevent them from committing violations. With respect to the obligation to ensure rights, the controlled character of the custodial environment also permits States to take unusually effective and comprehensive measures to prevent abuses by private persons. Moreover, by severely limiting inmates’ freedom of movement and capacity for self-defence, the State assumes a heightened duty of protection. While the same basic standard applies in custodial and non-custodial settings — the State must exercise “due diligence” in preventing abuse — the level of diligence that is due is considerably higher in the custodial context. 52. States are obligated to take measures to provide mechanisms of strict legal control and full accountability and to take measures to provide safe and humane conditions of detention. Some concrete measures are required by treaty or customary international law. Of particular note are ICCPR, the Convention on the Rights of the Child, and the Geneva Convention relative to the Treatment of Prisoners of War (Third Geneva Convention) and to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention). In addition, a number of instruments adopted by United Nations organs have formulated broadly applicable measures conducive to fulfilling general legal obligations to respect and ensure the right to life. In addition there are various other instruments more specifically concerned with the problem of torture, a form of abuse that leads to death in some cases. While many of the provisions contained in these instruments would be best conceptualized as guidelines, they were generally developed with the extensive involvement of both human rights and correctional experts, suggesting that many of the measures they contain will typically be necessary in practice to effectively prevent human rights violations. 53. Another legal consequence of the fact of detention is that, in cases of custodial death, there is a presumption of State responsibility. The rationale for this presumption was illustrated in the case of Dermit Barbato v. Uruguay. In that case, the Human Rights Committee found that Uruguay had violated the right to life of Hugo Dermit while he was detained at a military barracks. The cause of death found by the autopsy conducted by the State and recorded on his death certificate was not contested: he died of “acute haemorrhage resulting from a cut of the carotid artery”. However, while the State claimed that “he had committed suicide with a razor blade”, the author of the communication claimed that he had been killed by the military through mistreatment and torture. The State offered no evidence in support of its explanation, and the author of the communication was unable to adduce more than circumstantial evidence — mainly, that Dermit had been in good spirits inasmuch as he expected to be released shortly. The Human Rights Committee concluded that: “While the Committee cannot arrive at a definite conclusion as to whether Hugo Dermit committed suicide, was driven to suicide or was killed by others while in custody; yet, the inescapable conclusion is that in all the circumstances the Uruguayan authorities either by act or by omission were responsible for not taking adequate measures to protect his life, as required by article 6 (1) of the Covenant.” 54. In other words, the State’s two-fold obligation to ensure and respect the right to life, together with its heightened duty and capacity to fulfil this obligation in the custodial environment, justifies a rebuttable presumption of State responsibility in cases of custodial death. One consequence of this presumption is that the State must affirmatively provide evidence that it lacks responsibility to avoid that inference. Another important consequence of this presumption is that, absent proof that the State is not responsible, the State has an obligation to make reparations to the victim’s family. This is the case even if the precise cause of death and the persons responsible cannot be identified. D. Balancing State responsibilities against legal doctrines seeking to empower victims 55. An important number of recent communications I have received have called into question the compatibility of some tenets of Islamic criminal law, as practised in some jurisdictions, with the applicable requirements of international law. Such questions are inevitably sensitive but, like all other laws and practices relevant to the extrajudicial executions mandate, must be examined objectively in accordance with the relevant standards. 56. To varying degrees different schools of Islamic law determine punishment on the basis of a theory of equivalent retaliation in the case of intentional crimes committed against the bodily integrity of a human being (qisas crimes). This calls for the infliction on the guilty party of the same treatment suffered by the victim. Similarly, Islamic law gives victims and their families the ability to pardon the offender and accept financial compensation (diyah) for the crime. Finally, in some jurisdictions the law has been interpreted to authorize the victim’s family to carry out the death sentence. 57. Each of these practices can give rise to serious concern in human rights terms. Where the principle in relation to qisas is applied without the possibility of appeal to a court in relation to both the verdict and the sentence, the resulting principle of absolute, equivalent retaliation amounts to a mandatory death penalty and is thus incompatible with customary international law and with article 6 of ICCPR. 58. The practice of diyah could perhaps be seen as a form of empowerment of the victims of violations of the right to life (or rather of their families) and thus as a measure consistent with the obligation under article 2 (3) (a) of ICCPR to “ensure that any person whose rights … are violated shall have an effective remedy”. It is true that the payment of diyah saves lives to the extent that it avoids executions, and it is thus appropriate for Governments to engage in proactive mediation with a view to encouraging victims’ families to accept diyah rather than the death penalty. 59. However, there are circumstances in which the choice of accepting diyah can operate inconsistently with international human rights law, and in particular with the guarantees of non-discrimination and procedural objectivity (due process) in the imposition of the death penalty. 60. First, non-discrimination concerns arise in relation to the implementation of diyah. Discrimination on the basis of wealth, social origin or property is a problem in the sense that a wealthy offender can effectively buy freedom in a way which is not open to poor offenders. Diyah is also potentially discriminatory based on the status of the victim. Thus it has been shown that the amount of diyah can be less for female victims than for male victims, and less for non-Muslim victims than for Muslim victims, with further discrimination between recognized religious minorities (dhimmah) and non-recognized minorities. 61. Second, where the private diyah pardon stands alone and when it relates to the death penalty, it is almost certain to lead to significant violations of the right to due process in situations where a pardon is not granted. To the extent that the procedure does not provide for a final judgement by a court of law, or for the right to seek pardon or commutation of the sentence from the State authorities, the requirements of international law will be violated. Where the diyah pardon is available it must be supplemented by a separate, public system for seeking an official pardon or commutation. 62. Finally, contexts in which the victim’s relatives are entrusted with the responsibility of carrying out the death sentence are incompatible with international law. The criminal law functions of imposing and carrying out the death penalty are quintessentially public functions and cannot be “outsourced” to private individuals, any more than the process of trial and sentencing can be privatized. In addition, entrusting the conduct of an execution to inexperienced hands and, even more problematically, to those who have reason to bear a grudge against the convicted person, greatly enhances the likelihood of torture or cruel, inhuman or degrading treatment being applied to the convict. 63. These observations are made in the knowledge that the legal systems in very few countries are based exclusively on Islamic law. Rather, in the vast majority of countries with significant Islamic populations, the legal systems are based on a mixture of Islamic law and other law, such as a civil code. In such countries, the criminal justice system may have modified the equivalent retaliation principle of qisas or provided for means of commutation additional to or in lieu of diyah. In this regard, the Special Rapporteur notes the case of Tunisia, where “[e]ven after the death sentence has been passed, the President of the Republic … [has] not in practice authorize[d] execution of the death penalty”. This example helps to illustrate that a system of commutation by a public official may not in practice be incompatible with Islamic law, and may exist alongside or in place of the private diyah pardon. 64. I would also note that difficulties balancing State responsibilities with practices seeking to empower victims are not unique to Islamic law. Thus it could be argued that the victim’s rights movements in some Western countries, involving increased victim impact evidence in capital trials, might also raise concerns in relation to ensuring due process and the functioning of an independent and impartial justice system in capital cases. IV. Recommendations 65. The General Assembly should appeal to all States that have so far failed to respond meaningfully to the requests for visits made by the Special Rapporteur to take appropriate action. In particular, the eight members of the Human Rights Council that have not responded should be called upon to honour their undertakings to cooperate fully with the Council and its procedures. 66. A thorough and systematic investigation of all killings that occurred in Gaza, Lebanon and northern Israel since the beginning of June 2006 is indispensable. 67. The General Assembly should call upon the United Nations Secretariat to establish a full-fledged international human rights monitoring mission in Sri Lanka. An overview of my terms of reference, a list of the specific types of violations of the right to life upon which action has been taken, and a description of the legal framework and methods of work used in implementing the mandate can be found in E/CN.4/2005/7, paras. 5-12. I use the term “extrajudicial executions” to refer to executions other than those carried out by the State in conformity with the law, thus including “summary” and “arbitrary” executions. The precise details are contained in E/CN.4/2006/53, para. 17. See E/CN.4/2006/53/Add.4. See remarks by Innocent Chukwuma of CLEEN available at http://www.cleen.org/launching%20of%20opportunity%20for%20justice.pdf. “Apo 6: FG pays N3m to each family”, in Vanguard, available at http://www.vanguardngr.com/articles/2002/nationalx/nr203122005.html. “Nigeria: Want in the Midst of Plenty”, International Crisis Group, Africa Report No. 113, 19 July 2006, p. 27. See generally “The Swamps of Insurgency: Nigeria’s Delta Unrest”, International Crisis Group, Africa Report No. 115, 3 August 2006. See “Presidential Commission Laments State of Prisons”, This Day, 22 June 2006. See E/CN.4/2006/53/Add.5. A more thorough analysis is at E/CN.4/2006/53/Add.5, paras. 7-23. SLMM, press release of 29 December 2005. These civilians may be loosely grouped into two categories, equally deserving of protection. Some are ordinary individuals who have refused to give money, challenged the recruitment of their children, been a little too outspoken, or simply been in the wrong place at the wrong time. Other civilians have been targeted for their membership in or support for political parties opposed by LTTE. Such killings are apparently conducted to reinforce the self-proclaimed role of LTTE as the “sole representative” of the Tamil people. See E/CN.4/2006/53/Add.5, paras. 11-13, 21-23. The international community will never support a solution that involves de facto ethnic cleansing or the suppression of minority rights. Levels of support for LTTE among Tamils are thus not dispositive. When the European Union listed LTTE as a terrorist organization, it also emphasized that it was aware that “[t]he upsurge in violence is not caused by the LTTE alone” and “note[d] with concern the growing number of reports of extrajudicial killings”. It “strongly urge[d] the Sri Lankan authorities to curb violence in Government-controlled areas” and to “investigate and prosecute all cases of violence that have so far not resulted in arrests or convictions” (Council of the European Union, Declaration by the Presidency on behalf of the European Union concerning listing of LTTE as a terrorist organization, 31 May 2006). Most of my interlocutors could recall only one such case (Krishanthy). See E/CN.4/2006/53/Add.5, paras. 50-61. General Assembly resolution 60/1, paras. 138 and 139. I noted in my report that there is strong circumstantial evidence of (at least) informal cooperation between government forces and members of the Karuna group. (E/CN.4/2006/53/Add.5, paras. 14-19 and 49). LTTE has attributed a number of killings to individual Tamil civilians or to ephemeral groups, some of which may have received civil defence training from LTTE (E/CN.4/2006/53/Add.5, para. 20). One small but noteworthy positive sign with respect to accountability was the strong denunciation by LTTE of a recent attack: “LTTE condemns this attack on the civilian bus. Directly targeting civilians, as the Kebitigowella claymore attack has, cannot be justified under any circumstances.” The Liberation Tigers of Tamil Eelam Peace Secretariat, press release of 15 June 2006. While not clarifying the responsibility of any party, this denunciation does demonstrate an important evolution in the acceptance by LTTE of its moral responsibility to denounce attacks on civilians. When I spoke with Mr. Thamilchelvan, chief of the LTTE political wing, in December, he categorically refused to denounce particular attacks as incompatible with the role of LTTE as a people’s movement (E/CN.4/2006/53/Add.5, para. 48). See E/CN.4/2006/53/Add.5, paras. 38-47. I recommended a number of particular reforms. See E/CN.4/2006/53/Add.5, para. 72. SLMM, press release of 29 April 2006. CFA, art. 4.4. E/CN.4/2006/53/Add.5, para. 47. Ibid., para. 64. See e.g. Principles relating to the status of national institutions for the promotion and protection of human rights (The Paris Principles), General Assembly resolution 48/134 of 20 December 1993; Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, Economic and Social Council resolution 1989/65 of 24 May 1989. E/CN.4/2006/53/Add.5, para. 89. The Tamil translation is available at http://www.extrajudicialexecutions.org/reports/translations/ Tamil_E_CN_4_2006_53_Add_5.pdf http://www.extrajudicialexecutions.org/reports/translations/ Tamil_E_CN_4_2006_53_Add_5.pdf. Once completed, the Sinhala translation will also be available on the same website. These are unofficial translations. See E/CN.4/2006/53/Add.4, paras. 18 and 43-47. General Assembly resolution 34/169 of 17 December 1979. Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August to 7 September 1990. The phrase “law enforcement officials” includes all government officials exercising “police powers”, sometimes including “military authorities” and “security forces” as well as police officers. (Code of Conduct, art. 1, commentary (a) and (b); Basic Principles, preamble, note). Nigel S. Rodley, The Treatment of Prisoners Under International Law (2nd ed.) (Oxford University Press, 1999), pp. 355-368, provides an overview of the development of the Code of Conduct and Basic Principles. See International Covenant on Civil and Political Rights (ICCPR), art. 6 (1). See E/CN.4/2005/7, paras. 65-76. The issue of whether there are some situations in which an immediate recourse to lethal force may be strictly necessary in order to protect the lives of others arises in the context of so-called shoot-to-kill policies. See E/CN.4/2006/53, paras. 44-54; see also Center for Human Rights and Global Justice, Irreversible Consequences: Racial Profiling and Lethal Force in the “War on Terror” (New York: New York University School of Law, 2006) available at . See Basic Principles, principle 4; see also principle 20. Ibid., principle 4. Code of Conduct, art. 3, commentary (c). Basic Principles, principle 10. Ibid., principle 5 (b); see also principle 11 (b). Basic Principles, principle 9; see also Code of Conduct, art. 31. The distinction drawn between the use of firearms and the intentionally lethal use of firearms stems from the recognition that any use of firearms is potentially lethal. Shots fired to warn rather than strike or to stop rather than kill cannot be relied upon not to cause death. Indeed, any use of force may result in death, whether by happenstance or due to the condition of the target. Principle 9 interprets the principle of proportionality as it applies to two points on a continuum, specifying the objectives that would be proportionate to that level of force. Metaphors of weighing and balancing are difficult to avoid in this context, but they risk conjuring up the idea of cost-benefit analysis. The balancing to be applied in human rights law is more in keeping with the framework used for evaluating restrictions on rights under which the reconciliation of competing values must respect “the just requirements of morality, public order and the general welfare in a democratic society” (Universal Declaration of Human Rights, art. 29 (2)). Basic Principles, principle 5 (a); see also Code of Conduct, art. 3, commentary (b) (see para. 38). See also Code of Conduct, art. 3, commentary (c) (see para. 38). See E/CN.4/2005/7, para. 54. Ibid., paras. 73-74. See A/34/583/Add.1, para. 124. Velásquez Rodriguez v. Honduras, Annual Report of the Inter-American Court of Human Rights, OAS/Ser.L/V/III.19, doc. 13 (1988), in International Legal Materials, vol. 28 (1989), p. 291. Disappearance Convention, art. 2. Ibid., art. 3. Ibid., art. 10. Ibid., arts. 17, 18. Ibid., art. 23. E/CN.4/2006/53/Add.1. The communications concerned 185 identified individual cases of death in custody; however, some communications also dealt with larger groups of unidentified persons. ICCPR, art. 2 (1). See E/CN.4/2005/7, paras. 71-75. See, e.g., Basic Principles for the Treatment of Prisoners; Basic Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions; Basic Principles on the Use of Force and Firearms; Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment; United Nations Standard Minimum Rules for the Administration of Juvenile Justice; Standard Minimum Rules for the Treatment of Prisoners; and United Nations Rules for the Protection of Juveniles Deprived of their Liberty. For a detailed study of these instruments, see Rodley, op. cit. at note 32. Communication No. 84/1981, Dermit Barbato v. Uruguay, Official Records of the General Assembly, Thirty-eighth Session, Supplement No. 40 (A/38/40), annex IX. Ibid., paras. 1.4 and 6.1. Ibid., para. 1.4. Ibid., para. 9.2. This conclusion was also reached by the first person to hold this mandate: “A death in any type of custody should be regarded as prima facie a summary or arbitrary execution and appropriate investigations should immediately be made to confirm or rebut the presumption” (E/CN.4/1986/21, para. 209). The problem of States advancing implausible and unsubstantiated accounts that could not readily be disproved has confronted this mandate since the beginning. See E/CN.4/1983/16, para. 201. Such allegations cannot be resolved without evidence from the State. This may also apply to involuntary killings, although Islamic schools of jurisprudence differ on the scope of intentional murder and on whether quasi-intentional murder should also receive the same punishment. See e.g. E/CN.4/2006/53/Add.1, pp. 108 and 219. See the progress report on discrimination in the criminal justice system by Leïla Zerrougui, Special Rapporteur of the Sub-Commission on the Promotion and Protection of Human Rights (E/CN.4/Sub.2/2005/7), para. 45. Roger Hood, The Death Penalty: A Worldwide Perspective (3rd ed.) (Clarendon Press, 2002), p. 35 (citing Tunisia’s response to a request for information related to the preparation of the report of the Secretary-General on capital punishment and implementation of the safeguards guaranteeing the protection of the rights of those facing the death penalty (E/1995/78 and Add.1 and Add.1/Corr.1). __________________ __________________  sss1 \* MERGEFORMAT A/61/311 sss1 \* MERGEFORMAT A/61/311 FooterJN \* MERGEFORMAT 06-48801 \* MERGEFORMAT 2 \* MERGEFORMAT 21 FooterJN \* MERGEFORMAT 06-48801 United Nations A/61/311 General Assembly Distr.: General 5 September 2006 Original: English jobn \* MERGEFORMAT 06-48801 (E) 260906 Barcode \* MERGEFORMAT *0648801*