APPENDIX 2 – INTERNATIONAL LAW ADDENDUM ON HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS

 

 

  1. PROTECTED HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS

 

 

The Right to Life

 

 

The right to life is a fundamental human right without which all other rights would have no meaning.[1] The U.S. is obligated to respect, protect, and ensure equally, without discrimination of any kind, the right to life of all persons within its territory and subject to its jurisdiction, and to effectively investigate, prevent, punish, and redress violations of that right. International human rights treaties and other standards require States, as an integral part of these duties, to ensure that the investigation of every potentially unlawful death is independent, impartial, prompt, thorough, effective, credible, and transparent.[2]

 

The U.S. has ratified[3] human rights treaties guaranteeing the right to life and freedom from torture and discrimination, and imposing on States duties to prevent, investigate, and punish violations. They include the International Covenant on Civil and Political Rights[4] (ICCPR); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment[5] (UNCAT); and the International Convention on the Elimination of All Forms of Racial Discrimination[6] (ICERD).

 

Article 6(1) of the ICCPR provides, “Every human being has the inherent right to life [which] right shall be protected by law. No one shall be arbitrarily deprived of his life.” The right to life is also a rule of customary international law and is considered a jus cogens norm.[7] The right to life is non-derogable, which means there can be no exceptions to this guarantee.

 

The ICCPR, in Article 14, guarantees the accused the right to be presumed innocent and to a fair trial by an impartial tribunal. When a suspect is deprived of life in the absence of lawful self-defense or judicial process, it constitutes an extrajudicial killing.

 

States parties to the ICCPR have a legal obligation to adopt a domestic legal framework to ensure and protect the right to life, which includes investigation and accountability. States that fail to do so are in violation of their international legal obligations, Christof Heyns, UN Special Rapporteur on extrajudicial, summary, or arbitrary executions, wrote in his April 1, 2014 report to the Human Rights Council.[8]

 

Every child also has the “inherent right to life,” as stated in article 6 of the Convention on the Rights of the Child[9] (CRC), which the United States has signed.

 

There are two components to the right to life. First, every person has the right not to be arbitrarily deprived of his or her life and there are limitations on the use of force. Second, when there is reason to believe that a life may have been taken arbitrarily, a proper investigation and accountability are required.

 

The Human Rights Committee (HR Committee), which interprets the scope of ICCPR provisions and identifies binding obligations of State Parties to ensure rights, states in its General Comment No. 36[10]:

 

Deprivation of life is, as a rule, arbitrary if it is inconsistent with international law or domestic law. 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, as well as elements of reasonableness, necessity and proportionality.

 

International “soft law” contains two primary instruments that explain when law enforcement officials can use force. They are the Code of Conduct for Law Enforcement Officials (Code of Conduct),[11] and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials of 1990 (Basic Principles).[12] These instruments, which have been endorsed by a large number of States, are considered authoritative statements of the law.[13]

 

The duty of States to ensure equal and non-discriminatory protection of the right to life and effective remedies for violations was recognized in 1948 by the UN Universal Declaration of Human Rights[14] (UDHR) and the Organization of American States’ (OAS) American Declaration on the Rights and Duties of Man (ADRDM).[15] The U.S. and all OAS members are considered signatories to the ADRDM and thus have undertaken to respect the rights and fulfill the duties set out in the ADRDM.

 

The U.S. signed[16] the American Convention on Human Rights (ACHR). Although the U.S. has not ratified the ACHR, the Inter-American Commission on Human Rights has established that the ACHR “may be considered to represent an authoritative expression of the fundamental principles set forth in the American Declaration.”[17]

 

The UN Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions specifically extends the non-derogable prohibition of extra-judicial, arbitrary, or summary executions to killings by state actors:

 

Such executions shall not be carried out under any circumstances including, but not limited to…excessive or illegal use of force by a public official or other person acting in an official capacity or by a person acting at the instigation, or with the consent or acquiescence of such person, and situations in which deaths occur in custody. This prohibition shall prevail over decrees issued by governmental authority. [18]

 

The HR Committee has made clear that:

 

States parties should take measures not only to prevent and punish deprivation of life by criminal acts, but also to prevent arbitrary killing by their own security forces. The deprivation of life by the authorities of the State is a matter of the utmost gravity. Therefore, the law must strictly control and limit the circumstances in which a person may be deprived of his life by such authorities.[19]

State duties to ensure an effective remedy for unlawful deaths are an inextricable part of the State duty to protect the right to life. Both the IACHR interpreting the ACHR and the HR Committee have determined that a failure to ensure the investigation of a potentially unlawful death in accordance with international law standards can itself be a violation by the State of the right to life.[20] The IACHR further determined that violations of any person’s rights under the ACHR “carried out by an act of public authority or by persons who use their position of authority is imputable to the State.”[21]

 

 

The Right to Security

 

The ICCPR, ICERD, and CRC protect the right to security and liberty. Article 9 of the ICCPR provides:

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

In General Comment No. 35,[22] the HR Committee declared that the right to security of person protects individuals from “infliction of bodily or mental injury, regardless of whether the victim is detained or non-detained.” The Committee ties the right to security of person to violent policing, writing that States Parties “should also prevent and redress unjustifiable use of force in law enforcement.”

Likewise, in Article 5, ICERD says:

The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution.

 

The CRC, Article 37, says, “No child shall be deprived of his or her liberty unlawfully or arbitrarily.”

 

Non-discrimination Requirement

 

The right to non-discrimination is enshrined in ICERD; ICCPR; CRC; ACHR; the Convention on the Elimination of All Forms of Discrimination Against Women[23] (CEDAW); the Convention on the Rights of Persons with Disabilities;[24] (CRPD) and the Inter-American Convention against Racism, Racial Discrimination and Related Forms of Intolerance.[25]The non-discrimination requirement is a jus cogens norm.

 

The ICERD, in Article 1, defines racial discrimination as:

 

any distinction, exclusion, restriction or preference based on race, color, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. (emphasis added).

 

ICERD prohibits practices that have a discriminatory purpose or effect. U.S. jurisprudence only prohibits practices that have a discriminatory purpose or intent. See McClesky v. Kemp.[26] The Committee on the Elimination of Racial Discrimination[27] (CERD) has called on the U.S. to review the legal definition of racial discrimination and prohibit it in all forms—effect as well as purpose.

 

States must adopt both reactive and proactive stances to combat racially motivated violence by police.[28]Institutionalized racism or ethnic discrimination impacts on patterns of accountability.

 

In Article 2, ICERD requires that States take effective measures to review, amend, rescind, or nullify any laws or regulations that have the effect of creating or perpetuating racial discrimination by any persons, group, or organization.

 

ICERD, Article 6, contains the right to seek “just and adequate reparation or satisfaction for any damage suffered as a result of [acts of racial discrimination that violate his or her human rights and fundamental freedoms under ICERD].”(emphasis added)

 

The ICCPR, in Article 2, provides:

 

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

 

Article 1 of CEDAW defines “discrimination against women” as follows:

 

any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

 

CEDAW, in Article 2, requires States Parties to “condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women.” It also requires that States Parties incorporate the principle of equality in legislation and adopt prohibitions and sanctions for discrimination against women. They must “take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise.”

 

Article 1 of the CRC defines “child” as every human being under the age of 18. In Article 2, States Parties are required to respect and ensure the rights in the Convention “without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.”

In Article 19, the CRC provides:

 

States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

 

Article 5 of the CRPD states, “States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.”

The Right to Mental Health

The International Covenant on Economic, Social and Cultural Rights[29] (ICESCR), in Article 12, guarantees “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”

 

Article 2 of the ICESCR states, “The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

 

The CRPD provides in Article 5, “States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.”

 

Prohibition Against Torture

 

The UNCAT, ICCPR, and the American Declaration prohibit torture and cruel, inhuman, or degrading treatment or punishment (CIDT). The prohibition of torture is a jus cogens norm. It is never allowed. Article 6 of UNCAT provides, “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

 

In Article 1, UNCAT defines torture as:

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

 

The UNCAT, in Article 16, also prohibits:

 

other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

 

In 2014, the Committee Against Torture (CAT), which interprets UNCAT, released concluding observations on the combined third to fifth periodic reports of the U.S. (observations on U.S. reports),[30] in which it addresses racism and violent acts of torture in policing, particularly against Black people in the United States. CAT was “concerned about numerous reports of police brutality and excessive use of force by law enforcement officials,” particularly against individuals “belonging to certain racial and ethnic groups,” immigrants, and LGBTQ individuals.

 

Taser Use May Be Torture, or Cruel, Inhuman, or Degrading Treatment or Punishment

 

In 2020, the Office of the United Nations High Commissioner for Human Rights (OHCHR) issued the “The United Nations Human Rights Guidance on Less-Lethal Weapons in Law Enforcement.”[31] It describes conducted electrical weapons (Tasers/stun guns) as follows:

 

7.4.1 Conducted electrical weapons are typically used to deliver pulses of electrical charge that cause the subject’s muscles to contract in an uncoordinated way, thereby preventing purposeful movement. This effect has been termed “neuromuscular incapacitation.”

 

The Guidance states in para. 7.4.11 that Tasers should not be used to overcome purely passive resistance to the instructions of an official by inflicting pain. Repeated use of tasering “should be avoided whenever possible.”

 

Most significantly, the OHCHR warns that Taser use may amount to torture or cruel, inhuman, or degrading treatment or punishment in certain circumstances. It states:

 

7.4.12 -The risk of inflicting pain or suffering so severe that it may amount to an element of torture or cruel, inhuman or degrading treatment or punishment is especially high when a weapon is used in drive-stun mode to apply electricity directly to an individual without incapacitating them.

 

In its 2014 observations on U.S. reports, CAT stated that it was “appalled” by the number of deaths reported as a result of using electrical discharge weapons (Tasers).[32] CAT recommended that the U.S. “ensure that electrical discharge weapons are used exclusively in extreme and limited situations – where there is a real and immediate threat to life or risk of serious injury – as a substitute for lethal weapons and by trained law enforcement personnel only.” In addition, CAT opined that the U.S. should “revise the regulations governing the use of such weapons with a view to establishing a high threshold for their use and expressly prohibiting their use on children and pregnant women.” Significantly, CAT said that it was “of the view that the use of electrical discharge weapons should be subject to the principles of necessity and proportionality.”[33]

 

The Inter-American Commission on Human Rights says that torture is an aggravated form of inhuman treatment perpetuated with the purpose to obtain information or confessions, as a preventative measure, or to inflict punishment.[34] The distinction between torture and other CIDT “primarily results from the intensity of the suffering inflicted.”[35]

 

CAT has opined that “information, education and training provided to [U.S.] law enforcement or military personnel are not adequate and do not focus on all provisions of the Convention, in particular on the non-derogable nature of the prohibition of torture and the prevention of [CIDT].”[36] CAT is particularly concerned with “the frequent and recurrent shootings or fatal pursuits by the police of unarmed Black individuals.”[37]

 

CAT stated in General Comment No. 2[38] that those exercising superior authority (which includes public officials) “cannot avoid accountability or escape criminal responsibility for torture or ill-treatment committed by subordinates where they knew or should have known that such impermissible conduct was occurring, or was likely to occur, and they failed to take reasonable and necessary preventative measures.”

 

The CRC, in Article 37, provides, “No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment.”

 

Article 5 of the Code of Conduct specifies that law enforcement officials may not invoke superior orders as a defense to a charge of torture.

 

The Duty to Seek Medical Attention

 

The Code of Conduct sets forth the duty of law enforcement officials to secure medical attention for people in their custody. Article 6 states, “Law enforcement officials shall ensure the full protection of the health of persons in their custody and, in particular, shall take immediate action to secure medical attention whenever required.”

 

The Duty to Ensure Effective Remedies for Violations

 

The ICCPR, ICERD, and UNCAT all require effective remedies for violations of the rights guaranteed in those treaties.

The HR Committee stated that impunity may be “an important contributing element in the recurrence of … violations,” and that the Article 2(3) State duty to provide an effective remedy may in appropriate cases require guarantees of non-repetition and changes in relevant laws and practices.[39]

In Article 2, the ICCPR requires that States Parties “ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy” and “that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State.” They must also “develop the possibilities of judicial remedy” and “ensure that the competent authorities shall enforce such remedies when granted.”

 

Article 6 of ICERD also mandates that States Parties assure to everyone within their jurisdiction “effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms” that violate that Convention, “as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.

 

Article 14 of UNCAT states that “Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependents shall be entitled to compensation.”

 

In Article 11, UNCAT requires that States Parties systematically review “interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment . . . with a view to preventing any cases of torture.”

 

The Inter-American Court of Human Rights (IACtHR) requires that States “adopt all necessary measures, not only to prevent, try, and punish deprivation of life as a consequence of criminal acts, in general, but also to prevent arbitrary executions by its own security agents.[40]

 

Article 2 of CRC requires States Parties to “take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.”

 

The Duty to Investigate

 

In Velasquez Rodriguez v. Honduras,[41] the IACtHR ruled that States Parties to the ACHR have a duty to investigate violations of the “inalienable” right to life arising from their duty to protect that right and, 

 

  1. In cases of extra-legal executions, it is essential for the States to effectively investigate deprivation of the right to life and to punish all those responsible, especially when State agents are involved, as not doing so would create, within the environment of impunity, conditions for this type of facts to occur again, which is contrary to the duty to respect and ensure the right to life.

 

  1. In this regard, safeguarding the right to life requires conducting an effective official investigation when there are persons who lost their life as a result of the use of force by agents of the State.

 

The UNCAT imposes upon States Parties the obligation to ensure the prompt, impartial investigation of allegations of torture, protection of complainants and victims, compensation and rehabilitation for victims, and, in the case of death, compensation for dependents.

 

Article 12 of UNCAT says that States Parties “shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.”

 

The UN Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions (UN Investigation Principles)[42] reflect a global consensus on the standards required for the investigation of potentially unlawful deaths. They require a thorough, prompt, and impartial investigation of all suspected cases of extra-legal, arbitrary, and summary executions (Article 9); independence and impartiality of those conducting autopsies (Article 14); and government action to bring to justice to persons identified by the investigation as having taken part in extra-legal, arbitrary and summary executions (Article 18).

 

The Human Rights Committee’s General Comment No. 36, article 6 (Right to Life), released in 2019, confirms the binding obligations on ICCPR State Parties to ensure investigations in all cases of potentially unlawful deaths that are impartial, prompt, thorough, transparent, and effective.

 

General Comment No. 36, paragraph 29 establishes that when the unnatural death occurs in custody there is a presumption of arbitrary deprivation that can only be rebutted by a proper investigation:

 

  1. 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 that establishes the State’s compliance with its obligations under Article 6.

 

[1] Myrna Mack-Chang, at 121 ¶ 153 (Nov. 25, 2003); Nowak, supra n. 222.

[2] UNHRC, General Comment No. 36: Article 6 (Right to Life), at ¶ 28.

[3] U.S. Const. art. VI. (When a State ratifies a treaty, it becomes a State Party. The provisions of treaties the U.S. has ratified are part of U.S. law under the Supremacy Clause of the U.S. Constitution. Article VI says that treaties “shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding”).

[4] ICCPR, at ¶ 171.

[5] CAT, at ¶ 85.

[6] ICERD, supra.

[7] The highest form of customary international law is a jus cogens norm. Jus cogens are considered so significant that no State can derogate from their provisions. States cannot pass laws authorizing practices that violate jus cogens norms, there is no statute of limitations for prosecuting violations of jus cogens norms, and there can be no immunity for jus cogens violations.

[8] Report on Extrajudicial, Summary or Arbitrary Executions, supra.n. 231

[9] CRC, supra n. 228 (the U.S. has signed the CRC).

[10] UNHRC, General Comment No. 36: Article 6 (Right to Life).

[11] Adopted by the General Assembly in its resolution 34/169 (1979); Report on Extrajudicial, Summary or Arbitrary Executions, supra.n. 231.

[12] G.A. Res. 45/111 (Dec. 14, 1990). (adopted without a vote the same year welcomed the Basic Principles).

[13] Report on Extrajudicial, Summary or Arbitrary Executions, supra.n. 231

[14] G.A. Res. 217 (III) A.

[15] Int-Am. Comm’n on H.R., American Declaration of the Rights and Duties of Man (1948).

[16] VCLT (provides in Article 18 that when a State signs, but doesn’t ratify a treaty, it must refrain from acts which would defeat the object and purpose of the treaty. The U.S. generally considers Article 18 to be customary international law); See Maria Frankowska, The Vienna Convention on the Law of Treaties Before United States Court, 28 VA. J. Int’l L. 281, fn. 82 (1988).

[17] Mary and Carrie Dann, Case 11.140, Inter-Am. Comm’n H.R., Report No. 75/02, Case 11.140 ¶ 96 (Dec. 27, 2002).

[18] See Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, supra n. 258.

[19]Nils Melzer, Targeted Killing in International Law 104-5 (Oxford University Press 2008).

[20] See Case of Velasquez Rodriguez v. Honduras, Order of the Court, Inter-Am. Comm’n H.R. (ser. C) No. 4 ¶ 176 (July 29, 1988).

[21] Id. at 164.

[22] CCPR General Comment No. 35, supra 378.

[23] CEDAW, supra n. 240 (the U.S. has signed CEDAW).

[24]G.A. Res. 61/106 A, Convention on the Rights of Persons with Disabilities (CRPD) (Jan. 24, 2007) (the U.S. has signed the CRPD).

[25] Inter-American Convention Against Racism, Racial Discrimination and Related Forms of Intolerance, June 5, 2013, U.N. Doc No. 54915.

[26] See McCleskey, 481 U.S. 279.

[27] CERD/C/USA/CO/7-9.

[28] Report on Extrajudicial, Summary or Arbitrary Executions, supra.n. 231.

[29] ICESCR, 933 U.N.T.S. 393. The U.S. has signed the ICESCR.

[30] CAT/C/USA/3-5 at C. 26.

[31] U.N. Doc. HR/PUB/20/1.

[32] CAT/C/USA/3-5 at C. 27.

[33] Id.

[34] Michael Gayle v. Jamaica, Case 12.418, Inter-Am. Comm’n H.R., Report 92/05  (Oct. 24, 2005).

[35] Id. at ¶ 62.

[36] Conclusions and Recommendations of the Committee Against Torture, ¶ 23.

[37] Comm. Against Torture, Concluding observations on the combined third to fifth periodic reports of the United States of America, U.N. Doc. CAT/C/USA/CO/3-5 at ¶ 26 (Dec. 19 2014).

[38] Comm. Against Torture, General Comment No. 2, U.N. Doc CAT/C/USA/CO/3-5 (Jan. 24, 2008).

 

[39] UN Doc. CCPR/C/74/CRP.4/Rev.6, at ¶ 16, 18.

[40] Myrna Mack-Chang, at 121 ¶ 152 (Nov. 25, 2003)

[41] Case of Velasquez Rodriguez, supra.n. 414.

[42] Economic and Social Council Res. 1989/65.

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