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Human Rights Committee continues to discuss draft general comment on the right to life
02 November 2016
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GENEVA (2 November 2016) - The Human Rights Committee continued this morning its public discussion on the draft General Comment on Article 6 of the International Covenant on Civil and Political Rights on the right to life. The Committee considered paragraphs 26 to 36 of the draft General Comment. The adopted paragraphs 20 to 25 were circulated for information purposes.
Paragraph 26 referred to vulnerable groups which required special measures of protection either because of a specific threat or reoccurring patterns of violence. Those included human rights defenders, journalists, prominent public figures, witnesses to crime, victims of domestic violence, street children, alleged witches, and others. Paragraph 26 was then adopted.
Paragraph 27 dealt with the heightened obligation of States parties to take any necessary measures to protect the lives of individuals incarcerated by the State since by arresting, detaining and imprisoning individuals, States parties assumed the obligation to care for their life and bodily integrity. States also had the duty to protect the right to life of those in State-run mental health facilities, military camps and camps for internally displaced persons. The term “incarcerated” could be replaced with the term “detained”, and Experts discussed which term had a broader meaning. The Committee proceeded to adopt paragraph 27.
In the lengthy paragraph 28, the drafters included the duty of States parties to take appropriate measures to address the general conditions in society that might eventually give rise to direct threats to life or prevent individuals from enjoying their right to life with dignity. Both short-term and long-term measures for ensuring adequate conditions for protecting the right to life were listed. States should develop, when necessary, contingency plans designed to increase preparedness for natural and man-made disasters, which might adversely affect enjoyment of the right to life. One Expert suggested adding the need for States to develop disaster-management plans. Experts exchanged opinions on the need to include procedural provisions in the paragraph. Questions were raised on whether, and to which degree, the Committee should be recommending desirable policies to States parties. An Expert raised concerns over an introduction of the progressive realization of measures, while another Expert recommended including a reference to the provision of shelter. The Rapporteurs agreed that references to environmental issues and disaster risk management would be added for the second reading. The paragraph could be considered as being too long and in the next reading the Committee could look into breaking it down into two separate paragraphs.
Moving on to paragraph 29 on the obligation to investigate and prosecute allegations of deprivation of life by State authorities or private individuals and entities, the Rapporteurs presented the changes made since the previous consideration. Those responsible ought to be brought to justice and held accountable. The Committee then adopted paragraph 29.
Paragraph 30 read that investigations into allegations of violations of Article 6 had to always be independent, impartial, prompt, thorough, effective, credible and transparent. When relevant, the investigation should include a rigorous autopsy of the victim’s body. A point on the need to take steps for the protection of victims and witnesses would also be included. States should cooperate in good faith with international mechanisms of investigation and prosecution, looking into possible violations of Article 6. The issue of restitution was also discussed by Experts and would be further discussed in the second reading.
Next, paragraph 31 dealt with heightened procedural obligations to investigate loss of life in custody, where the one proposed change had been accepted. Loss of life occurring in custody, especially when accompanied by reliable reports of an unnatural death, created a presumption of arbitrary deprivation of life by State authorities.
Paragraph 32 addressed the issue of refoulement. An Expert noted that there were references to both deporting and extraditing persons, and suggested that the language in that regard should be more explicit. Paragraph 32 was then adopted. The person not protected under the refugee law would still be protected by the rules of non-refoulement, said a Rapporteur on paragraph 33, which was then adopted.
Moving to section 4 of the draft General Comment on the imposition of the death penalty, a Rapporteur explained that the Covenant required that the penalty be consistent with the Covenant’s provisions, such as fair trial. As a number of States parties still retained the death penalty, conditions were still not ready to state that the Covenant required the abolition of the capital punishment. Nonetheless, there was a need for language stating that States should inevitably be on the road towards abolition. Gradual movement towards abolition ought to be encouraged.
Paragraphs 34 and 35 were adopted by the Committee without discussion.
A Rapporteur explained that paragraph 36 was based on the case of Judge v. Canada, in which it had been decided that the protection of retentionism applied only to countries which had not already abolished the death penalty. Exposing a person to the threat of the death penalty by a State which was already abolitionist was incompatible with Article 6. One Expert raised the issue of diplomatic assurances, which should be described as “reliable and effective”. There was no problem with telling States that they could not reintroduce the death penalty or increase the number of crimes for which the death penalty could be applied. States frequently told the Committee that, given that the public opinion was rarely in favour of the abolition of the death penalty, responsible politicians had applied the practice of applying a de facto moratorium. A question was raised on how firm some moratoria were in reality. The Rapporteur provided statistics on the number of abolitionist and retentionist countries, as well as those applying the de facto moratorium on the death penalty. It had to be stressed that no extraditions would take place until or unless very firm assurances were given that no death penalty would be applied, another Expert said. The discussion on this paragraph will continue.
The Committee will next meet in public on Friday, 4 November at 3 p.m., to discuss its methods of work, adopt concluding observations and close the one hundred and eighteenth session.
Paragraph 26 referred to vulnerable groups which required special measures of protection either because of a specific threat or reoccurring patterns of violence. Those included human rights defenders, journalists, prominent public figures, witnesses to crime, victims of domestic violence, street children, alleged witches, and others. Paragraph 26 was then adopted.
Paragraph 27 dealt with the heightened obligation of States parties to take any necessary measures to protect the lives of individuals incarcerated by the State since by arresting, detaining and imprisoning individuals, States parties assumed the obligation to care for their life and bodily integrity. States also had the duty to protect the right to life of those in State-run mental health facilities, military camps and camps for internally displaced persons. The term “incarcerated” could be replaced with the term “detained”, and Experts discussed which term had a broader meaning. The Committee proceeded to adopt paragraph 27.
In the lengthy paragraph 28, the drafters included the duty of States parties to take appropriate measures to address the general conditions in society that might eventually give rise to direct threats to life or prevent individuals from enjoying their right to life with dignity. Both short-term and long-term measures for ensuring adequate conditions for protecting the right to life were listed. States should develop, when necessary, contingency plans designed to increase preparedness for natural and man-made disasters, which might adversely affect enjoyment of the right to life. One Expert suggested adding the need for States to develop disaster-management plans. Experts exchanged opinions on the need to include procedural provisions in the paragraph. Questions were raised on whether, and to which degree, the Committee should be recommending desirable policies to States parties. An Expert raised concerns over an introduction of the progressive realization of measures, while another Expert recommended including a reference to the provision of shelter. The Rapporteurs agreed that references to environmental issues and disaster risk management would be added for the second reading. The paragraph could be considered as being too long and in the next reading the Committee could look into breaking it down into two separate paragraphs.
Moving on to paragraph 29 on the obligation to investigate and prosecute allegations of deprivation of life by State authorities or private individuals and entities, the Rapporteurs presented the changes made since the previous consideration. Those responsible ought to be brought to justice and held accountable. The Committee then adopted paragraph 29.
Paragraph 30 read that investigations into allegations of violations of Article 6 had to always be independent, impartial, prompt, thorough, effective, credible and transparent. When relevant, the investigation should include a rigorous autopsy of the victim’s body. A point on the need to take steps for the protection of victims and witnesses would also be included. States should cooperate in good faith with international mechanisms of investigation and prosecution, looking into possible violations of Article 6. The issue of restitution was also discussed by Experts and would be further discussed in the second reading.
Next, paragraph 31 dealt with heightened procedural obligations to investigate loss of life in custody, where the one proposed change had been accepted. Loss of life occurring in custody, especially when accompanied by reliable reports of an unnatural death, created a presumption of arbitrary deprivation of life by State authorities.
Paragraph 32 addressed the issue of refoulement. An Expert noted that there were references to both deporting and extraditing persons, and suggested that the language in that regard should be more explicit. Paragraph 32 was then adopted. The person not protected under the refugee law would still be protected by the rules of non-refoulement, said a Rapporteur on paragraph 33, which was then adopted.
Moving to section 4 of the draft General Comment on the imposition of the death penalty, a Rapporteur explained that the Covenant required that the penalty be consistent with the Covenant’s provisions, such as fair trial. As a number of States parties still retained the death penalty, conditions were still not ready to state that the Covenant required the abolition of the capital punishment. Nonetheless, there was a need for language stating that States should inevitably be on the road towards abolition. Gradual movement towards abolition ought to be encouraged.
Paragraphs 34 and 35 were adopted by the Committee without discussion.
A Rapporteur explained that paragraph 36 was based on the case of Judge v. Canada, in which it had been decided that the protection of retentionism applied only to countries which had not already abolished the death penalty. Exposing a person to the threat of the death penalty by a State which was already abolitionist was incompatible with Article 6. One Expert raised the issue of diplomatic assurances, which should be described as “reliable and effective”. There was no problem with telling States that they could not reintroduce the death penalty or increase the number of crimes for which the death penalty could be applied. States frequently told the Committee that, given that the public opinion was rarely in favour of the abolition of the death penalty, responsible politicians had applied the practice of applying a de facto moratorium. A question was raised on how firm some moratoria were in reality. The Rapporteur provided statistics on the number of abolitionist and retentionist countries, as well as those applying the de facto moratorium on the death penalty. It had to be stressed that no extraditions would take place until or unless very firm assurances were given that no death penalty would be applied, another Expert said. The discussion on this paragraph will continue.
The Committee will next meet in public on Friday, 4 November at 3 p.m., to discuss its methods of work, adopt concluding observations and close the one hundred and eighteenth session.
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For use of the information media; not an official record