Human Rights Committee continues to discuss draft general comment on the right to life

GENEVA (19 July 2017) - The Human Rights Committee this morning continued to discuss a draft General Comment on article 6 of the International Covenant on Civil and Political Rights on the right to life, debating the fifth part concerning the relationship of article 6 with other articles of the Covenant.

Committee Vice-Chairperson and Rapporteur for the draft General Comment, Yuval Shany, presented the concerned paragraphs and led the discussion. 

Mr. Shany proposed new language in paragraph 60 that reflected the comments of Experts as followed:  “A particular connection exists between article 6 and article 20, which prohibits any propaganda to war and certain forms of advocacy constituting incitement to discrimination, hostility and violence.  Failure to comply with these obligations under article 20 may also constitute a failure to take the necessary measures to protect the right to life under article 6.”

Experts wondered whether to refer to certain forms of advocacy constituting incitement to violence, or repeating exactly what article 20 stated.  The Committee then adopted the revised version of paragraph 60 and sent it for the second reading. 

Mr. Shany presented paragraph 61, which concerned the connection between article 6 and article 24, which required the adoption of special measures designed to protect the life of every child, in addition to the general measures required by article 6 for protecting the lives of all individuals.  When taking special measures of protection, States parties should be guided by the best interests of the child, and by the need to ensure the survival and development of all children. 

Experts proposed a reference to the wellbeing of children to be included in the paragraph.  The Committee then adopted draft paragraph 61 as amended.

Mr. Shany explained that paragraph 62 referred to the question of extraterritorial application of article 6.  It underscored that States had obligations to respect and to ensure the rights under article 6 of all persons who were found within their territory and all persons subject to their jurisdiction, power and effective control.  States parties also had to respect and protect the right to life of all individuals detained inside or outside their territory, all individuals located on marine vessels or aircrafts hoisting the State parties’ flags or registered by them, and of those individuals who found themselves in an area of the high seas over which particular States parties had assumed de facto responsibility.

One Expert proposed an amendment in the context of the use of drones and targeted killings, jurisdiction included the notion of power and effective control.  There was contestation whether targeted killing took place in an armed conflict or not.  The idea of the proposed amendment was to make it less easy for States parties to contest.      
There were gaps with the respect to the concept of jurisdiction and control.  “Deprivation of liberty” could be used instead of “detention.”  

Mr. Shany said he would revise the draft paragraph 62 in light of Experts’ suggestions.   

Paragraph 63 dealt with the parallel application of the rules of armed conflict with human rights law.  Article 6 continued to apply also in situations of armed conflict to which the rules of international humanitarian law were applicable.  Uses of lethal force authorized and regulated by and complying with international humanitarian law were, in principle, not arbitrary.  By contrast, practices inconsistent with international humanitarian law, entailing a risk to the lives of civilians and persons outside combat, including the targeting of civilians and civilian objects, failure to apply adequate measures of precaution to prevent collateral death of civilians, and the use of human shields, violated article 6 of the Covenant. 

Experts proposed reference to the “conduct of hostilities,” and the duty to investigate situations of deprivation of life in armed conflict.  They observed that the subject of compelling security considerations was open to abuse by States parties and proposed deleting that reference.  Without investigation, the right was simply an aspiration. 

Mr. Shany explained that he would reflect on the proposed changes.  As for compelling security considerations, exceptions could be made in limited cases, and he sought further comments on that subject.  Experts proposed that the reference on “compelling security considerations” be removed altogether.

Paragraph 64 dealt with article 4 on derogation of rights.  It underscored the non-derogable nature of article 6 of the Covenant.  Although some other rights may be subject to derogation, derogable rights which supported the application of Article 6, and in particular the right to fair trial in death penalty cases and duty to take all feasible measures to investigate, prosecute, punish and remedy violations of the right to life, should not be diminished by measures of derogation. 

Experts wondered what the concept and basis was for using the phrase “reasonably incurred.”  Derogation should not diminish the guarantee for the right to life – some differences in the French version of the paragraph.  The Rapporteur would produce a revised version.         
 
Paragraph 65 dealt with the question of reservations to article 6.  It explicitly stated that  reservations to article 6 could not be accepted due to the non-derogable nature of article 6.  It would be incompatible with the object and purpose of the Covenant for a State party to reserve the right to engage in arbitrary deprivation of life of persons, or to apply the death penalty outside the strict limits provided in article 6. 

Mr. Shany said that he would revise the paragraph in light of Experts’ observations about the issue of grounds and reasons for incompatibility of reservations to article 6, in light of Experts’ observations.

Paragraph 66 dealt with the complicated issue of the use of force and guarantees to preserve the right to life.  Efforts to avert the risks of war and to strengthen international peace and security would count among the most important conditions and guarantees for safeguarding the right to life. 

Experts voiced concern over the wording “international” and the absence of a reference to “national/internal” conflicts.  They also noted that the paragraph did not contain any attribution of responsibility of States or non-State actors to prevent war. 

Mr. Shany reminded that paragraph 66 contained constructive ambiguity, and he opposed entering into a difficult discussion of the responsibility of both State and non-State actors in preventing war.  The Committee then decided to keep draft paragraph 66 as it was presented.          

Paragraph 67 concerned States parties engaged in aggressive wars contrary to the United Nations Charter, which violated article 6 of the Covenant.  States were reminded of their obligation to protect lives and to oppose widespread and systematic attacks on the right to life, including military aggression, international terrorism and crimes against humanity.  At the same time the Committee should ensure the application of victimhood standards in order to avoid becoming an international court for all victims of war, Mr. Shany explained.

Experts proposed that “aggressive wars” be replaced with “acts of aggression,” and to replace “international conflicts” with “international disputes” to be in line with more recent international instruments.  They also proposed to replace “deploy military force” with “use of force,” and to replace “members of the international community” with “States.” 

Mr. Shany accepted all the proposed changes and said that he would revise the paragraph in light of the remarks made during the general discussion.  The responsibility to protect applied with respect to large-scale international crimes.  The Committee should be forward-looking, but remain within the scope of the existing legal theory. 

Mr. Shany also presented three additional draft paragraphs on the issue of discrimination and the right to life, on environmental degradation, climate change and non-sustainable development, and on the issue of claiming victimhood.  

The Committee will next meet in public on Thursday, 20 July, at 10 a.m. to continue discussing the draft General Comment on article 6 of the International Covenant on Civil and Political Rights on the right to life.

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