The Committee completes the first reading of the draft General Comment on the Right to life

The draft General Comment 36 is now open for comments until 6 October 2017

Guernica, Picasso, 1937 - painting showing the horrors of war

During its 120th session, the Human Rights Committee finalised its first reading of draft General Comment on article 6 of the Covenant and invites all interested stakeholders to comment on the Committee’s Draft by 6 October 2017. The Committee concluded the examination of paragraphs 50 to 53 of part IV on the imposition of the death penalty, and also assessed paragraphs 54 to 67 of part V on the relationship of article 6 with other provisions of the Covenant and other legal regimes.

The Committee members proposed substantive changes to the draft General Comment 36 and also made suggestions to its formal aspects, especially with regards to the use of a more assertive language in some of the paragraphs. In particular, they have changed the title of part V to ‘relationship of article 6 with other articles of the Covenant and other legal regimes’. The reason was that the last paragraphs of that part actually address the right to life in relation to the UN Charter and humanitarian law, and therefore they are not limited to the link between article 6 and other ICCPR provisions. The webcast of the discussions is available here: part 1, part 2, part 3 and part 4.

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"The [upcoming General Comment 36] will be important not only for the work of the committee, but also for the whole world."

- Member of the Human Rights Committee

Limiting the death penalty and promoting its abolition

The Committee members introduced the discussions by analysing §50 and §51. They reinforced their views that death penalty should not be imposed to minors under any circumstances, and assessed the prohibition of applying capital punishment to vulnerable persons such as individuals at advanced age. Then they moved to §52 and §53, which address the pro-abolitionist spirit of the Covenant. §52 provides that States should be moving towards the abolition of death penalty ‘in the foreseeable future’. Some members expressed their concern that this could lead States to deliberately delaying abolition in their countries. The Rapporteur clarified that these terms were chosen in recognition of the differences that might exist among States’ as to when to abolish the death penalty, but that abolition should nonetheless be their common goal. For §53, the Rapporteur referred to the abolitionist movement as being ‘not only de facto but also de jure’, as many States are moving in that direction despite the provision of capital punishment in their domestic laws. Furthermore, he recognized that death penalty is not yet considered per se as contrary to the prohibition of torture or ill-treatment (article 7), but that the draft General Comment 36 (GC36)  ‘leaves the door open’ for it to be considered as such one day. Members insisted in adopting a more assertive wording for §53 to say that States’ agreements or practice since the drafting of the Covenant ‘lead to the conclusion that death penalty runs contrary to article 7’. The Rapporteur decided that those two paragraphs would be re-examined.The Committee members introduced the discussions by analysing §50 and §51. They reinforced their views that death penalty should not be imposed to minors under any circumstances, and assessed the prohibition of applying capital punishment to vulnerable persons such as individuals at advanced age.

Then they moved to §52 and §53, which address the pro-abolitionist spirit of the Covenant. §52 provides that States should be moving towards the abolition of death penalty ‘in the foreseeable future’. Some members expressed their concern that this could lead States to deliberately delaying abolition in their countries. The Rapporteur clarified that these terms were chosen in recognition of the differences that might exist among States’ as to when to abolish the death penalty, but that abolition should nonetheless be their common goal. For §53, the Rapporteur referred to the abolitionist movement as being ‘not only de facto but also de jure’, as many States are moving in that direction despite the provision of capital punishment in their domestic laws. Furthermore, he recognized that death penalty is not yet considered per se as contrary to the prohibition of torture or ill-treatment (article 7), but that the draft GC36 ‘leaves the door open’ for it to be considered as such one day. Members insisted in adopting a more assertive wording for §53 to say that States’ agreements or practice since the drafting of the Covenant ‘lead to the conclusion that death penalty runs contrary to article 7’. The Rapporteur decided that those two paragraphs would be re-examined.

The prohibition of torture and deprivations of life

In discussing §56, the Rapporteur highlighted the main elements of this paragraph, which refer to the risk of deprivation of life when torture is committed, and the violation of article 14(3)(g) when torture is used to obtain evidence. §57 and §58 further addressed the possible links between article 6 and article 7. In §57, a violation of article 7 would result from the severe mental suffering experienced by those whose life would be at risk. To illustrate such scenarios, §57 refers to forcible removals to countries where one’s life could be at risk, to cases of misinformation regarding the commutation of death penalty and the placement of individuals in death row when the capital sentence is void ab initio.

For §58, the Committee members provided inputs as to whether the word ‘family’ or ‘relatives’ should be used to refer to those affected by someone’s deprivation of life. Some Committee members argued for using the word ‘family’ to make it more clear who would be entitled to receive the victims’ remains, but other experts stressed that there are cases where members of one’s direct family are less affected than other relatives. In addition, the Rapporteur recognized that the word ‘family’ would be narrower than the one used in the UN Convention on Enforced Disappearances. Discussions also addressed the fact that §58 limited the ‘severe mental suffering’ of relatives to cases of ‘arbitrary’ deprivation of life, whereas non-arbitrary deprivation of life could also lead to such distress when States fail to provide them information regarding the loss of life occurred.

States’ extraterritorial obligations

§62 addresses States’ extraterritorial obligations with regards to article 6. Committee members stressed that States are responsible for violations of the right to life committed in other countries if these violations occur under their exercise of ‘power or effective control’ over the victims. After receiving suggestions from other Committee members, the Rapporteur added a reference to violations committed during military actions abroad. In that sense, the notion of power or effective control should also cover ‘persons located outside the territory of the State who are nonetheless impacted by its military or other activities.’ Furthermore, §62 addresses violations committed during detention in the States’ territories or abroad. The protection of the right to life in custody but outside the context of extraterritorial obligations was addressed in §59.

Right to life and armed conflicts

The discussions around §63, §64, §66 and §67 led to changing the title of part V, which now refers to the ‘relationship of article 6 with other articles of the Covenant and other legal regimes.’ When analysing §63 and §64 concerning the ICCPR provision on derogations, Committee members reinforced their view that article 6 continues to apply during armed conflicts and human rights and humanitarian law rules complement each other in such contexts. They emphasized that these fields of law are not mutually exclusive and that use of force in cases of war and other conflicts must be compatible with article 6. The experts also raised the question of whether the obligation to investigate deaths in armed conflicts should be included in that paragraph. Moreover, they proposed removing the idea that States ‘should’ disclose their criteria in using lethal force ‘subject to compelling security considerations’, as it could give room to States’ arbitrariness in not disclosing such information. With regards to §64, it aimed to clarify that some ICCPR provisions, despite not being listed as non-derogable, should enjoy that status as they support the protection of life. The paragraph also clarifies that the possibility to derogate from certain provisions in cases of emergency does not mean that they should be diminished by the derogation measures adopted by States.

Finally, with respect to §66 and §67, the Committee members addressed the connection between peace and security and the application of article 6, as wars and mass violence continue to represent a threat to the right to life. In addition, they highlighted that reference to internal conflicts should be included in §66 since they also constitute a major cause of deprivations of life. The original language of §66 only referred to ‘efforts to avert the risks of war’ but after the inputs of Committee members that sentence now refers to ‘wars and any other armed conflicts’ in order to reflect the wording from the Geneva Conventions. Intense discussions also took place with respect to the reference in §67 to ‘States comprising the international community’ in the sense that other non-State actors can also be involved in armed conflicts. Nonetheless, other experts raised concern that this could lead controversies by legitimising and assigning obligations to non-State actors. The Rapporteur agreed with the former views, as the Committee is a treaty body that deals only with States and should not be involved in ‘creating new international law’ in that regard. The discussions around §67 were also fundamental for the adoption of §70, which provides that States’ failure in taking all measures to prevent wars and armed conflicts could possibly lead to breaches of article 6.

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