Use of potentially lethal force by private individuals

Paragraph 12 of the Draft General Comment aims to take a stand on the problematic phenomenon of States resorting to the use of private contractors for security purposes. Some Committee members immediately pointed out that the very fact of giving an opinion on this issue could be considered as an incitement to empower private entities with public powers. Consequently, the Paragraph was amended so as to read “States must rigorously limit the powers afforded to private actors”. 

Another point of discussion was whether the State only had an obligation of due diligence, i.e. that States must ensure that private contractors’ actions are monitored and controlled, or if the State could be held accountable for arbitrary deprivations of life committed by private entities. Committee members converged to form the overall opinion that if private entities were authorised to use potentially lethal force by the State, they then become de facto organ of the State and may engage its international responsibility for any act or omission leading to an arbitrary deprivation of life.  

The discussion then turned to the regulation of employment in private companies: some experts were in favour of excluding persons “involved” in serious human rights violations, whereas others wanted to prevent persons that had an “attested record of human rights violations” from working for private security companies. One expert stressed that since some individuals “involved” in human rights violations have no “attested record” of it because they were not tried, the “involvement” criterion was better suited to protecting individuals.

The development and use of lethal autonomous weapons

The Committee then discussed Paragraph 13, related to the issue of lethal autonomous weapons. These new weapons are able to go through the targeting process of an individual and to pull the trigger without human intervention. This new technology poses huge challenges in international law. This is a topic that has not been dealt with by the Committee before in any of their Concluding Observations or Views. 

Several Committee members expressed disagreement with regard to the fact that this Paragraph only considers the use of autonomous weapons “in military operations”, whereas such weapons could well be used in law enforcement operations, as the recent events in Dallas have shown.  

The main legal issue expressed in Paragraph 13 is the responsibility for the use of autonomous lethal weapons: if the weapon is autonomous, who bears legal responsibility for its use? The General Comment does not aim to answer that precise issue. Rather, it stresses that such weapons should not be developed and put into operation before a normative framework complying with the right to life has been established. Some Committee members, however, raised the point that the development of such weapons is not contrary to the Covenant because it does not constitute interference in the right to life; only their use does.

The legality of the threat and the use of weapons of mass destruction regarding the right to life

Paragraph 14 of the Draft General Comment deals with the relationship between weapons of mass destruction and the right to life. In the first Draft, the rapporteurs stated that the threat or the use of weapons of mass destruction were “prima facie” incompatible with the right to life, which provoked many remarks from Committee members: this expression must be removed, because “the Human Rights Committee cannot say that it could be lawful to use such weapons”, as one Committee member said. 

The discussion then moved on to the threat or use of nuclear weapons: should the Committee state, as it did in General Comment n°14, that the production, testing, possession, deployment and use of nuclear weapons constitutes a crime against humanity? Some Committee members immediately expressed their discomfort with that idea – from a strictly legal point of view – since the possession of such weapons is authorised by the Treaty on Non-Proliferation of Nuclear Weapons. The view of the Committee would therefore conflict with this treaty provision. Furthermore, some Committee members stated that the mere possession of nuclear weapons does not amount to a crime against humanity, according to its definition. Finally, the rapporteurs explained that in certain circumstances the use of nuclear weapons would not amount to a crime against humanity (e.g. use of nuclear weapons in a desert), and that it was therefore needed to add that the use of such weapons amounts “in principle” to a crime against humanity. They also stressed that sticking to the idea of a ‘crime against humanity’ would be a mistake, since another use of nuclear weapons could lead to a war crime or a crime of genocide. The rapporteurs therefore replaced “crime against humanity” with “crime under international law”.

In order to reinforce this Paragraph, the Committee decided to refer to the Disarmament Treaty Provisions establishing an obligation for States to “undertake negotiations designed to lead to weapons of mass destruction disarmament”, in lieu of the initial obligation in the Draft to take “all feasible measures to stop the proliferation” of such weapons. In the view of some Committee members, the Paragraph therefore reflects international customary law.

At this stage, paragraphs 1 to 21 were adopted in the first reading and will be discussed again in a second reading.  Paragraphs 22 to 25 received comments from Committee members and will be amended by the Rapporteurs and discussed again during the 118th session.