Human Rights Committee this morning continues draft General Comment on the right to life

Adopts Introductory Paragraphs 31 through 44

GENEVA (24 July 2018) - The Human Rights Committee this morning continued the second reading of the draft General Comment No. 36 on article 6 of the International Covenant on Civil and Political Rights on the right to life. The Committee adopted introductory paragraphs 31 through 44.

Yuval Shany, Committee Chairperson and Rapporteur for the draft General Comment, led the discussion and presented proposals submitted by States, organizations and individuals.

Resuming the previous discussion held on 18 July, Mr. Shany presented a revised text of introductory paragraph 31, which dealt with the obligation to investigate and prosecute allegations of deprivation of life by State authorities or by private individuals and entities.  In the ensuing discussion, the Committee Experts debated how States would operate if prosecuted by other States and whether their jurisdictions should be defined, and they asked that new language on the Minnesota Protocol on the Investigation of Potentially Unlawful Death be included.  The Committee the revised introductory paragraph 31.

Turning to paragraph 32, which stipulated that investigations into allegations of violation of article 6 always had to be independent, impartial, prompt and transparent, and that full reparation had to be provided, Mr. Shany said that some States voiced concern about the ex-officio duty to investigate.  The Committee Experts expressed support for the paragraph’s language, but also voiced concern about the discreet nature of criminal investigations.  Transparency was critical and the public had the right to know and understand what was going on in investigations.  Furthermore, the Experts underlined that family members be included in the investigative process as third-party support.  The Committee then adopted introductory paragraph 32.

Moving on to paragraph 33 on the loss of life in custody, which could create a presumption of arbitrary deprivation of life by State authorities, Mr. Shany informed that certain States did not favour that approach because the idea of presumption was not in accordance with international law.  Accordingly, Mr. Shany proposed simplified language to include the idea that the loss of life occurring in custody in unnatural circumstances created deprivation.  The Committee Experts suggested that State’ “heightened” duty to investigate allegations of article 6 violations be changed to less severe language.  The Committee then adopted introductory paragraph 33.

As for paragraph 34, which dealt with the duty of States to refrain from deporting, extraditing or otherwise transferring individuals to countries in which there were substantial risks that they would be deprived of their life, Mr. Shany informed that many States challenged the Committee’s approach to non-refoulement and asked for more clarification on the role of the State in cases of non-refoulement.  The Committee Experts agreed that a reference to additional jurisprudence of the European Court of Human Rights would be an important inclusion.  The Committee then adopted introductory paragraph 34.

On paragraph 35, which stipulated that the obligation not to extradite, deport or transfer pursuant to article 6 of the Covenant was broader than the scope of the principle under international refugee law, Mr. Shany said that States wished to limit the imposition of international non-refoulement when domestic laws already covered it.  The Committee then adopted introductory paragraph 35.  

Turning to the fourth part of the draft General Comment on the imposition of the death penalty, the Committee adopted introductory paragraph 36, which situated the discussion about the death penalty within article 6 of the Covenant.

Moving on to paragraph 37 about the limits of the application of the death penalty, Mr. Shany favoured the use of stronger language with respect to regulating the application of the death penalty in order to reflect the purpose of the Covenant.  The Committee then adopted introductory paragraph 37.

With respect to paragraph 38 on the irreversibility of reinstituting the death penalty for States that had already abolished it, Mr. Shany presented proposals submitted by States, including Poland’s suggestion that the notion of the irrevocability of the abolition of the death penalty be deleted altogether, and Russia’s concern that countries could not withdraw from the Second Optional Protocol.  However, the Committee found that those proposals were not in accordance with the principles set out by the Covenant, and it then adopted introductory paragraph 38.

As for paragraph 39, which stipulated that the term “the most serious crimes” had to be applied restrictively and only to crimes of extreme gravity, involving intentional killing, Mr. Shany informed that Egypt and Russia opposed the paragraph as a whole because it was a matter of national law.  In the ensuing discussion, some Committee Experts wondered whether the list of offences exempt from the death penalty could be given a more specific rationale.  The Committee then adopted introductory paragraph 39.

Discussing paragraph 40, which stated that the death penalty could not be used against conduct whose very criminialization violated the Covenant, such as adultery, homosexuality, apostasy or offending a head of State, the Committee Experts agreed to retain the proposed language and then adopted introductory paragraph 40.

The Committee also adopted introductory paragraph 41, which stipulated that in all cases involving the death penalty, the personal circumstances of the offender and the particular circumstances of the offence had to be considered by the sentencing court.  

The Committee then moved to adopt paragraph 42, which stated that the death penalty could not be imposed as part of a policy of genocide.

Turning to paragraph 43 on the retroactivity of the death penalty, the Committee Experts discussed the notion of the lex mitior principle and its application in the Covenant.  The Committee then adopted introductory paragraph 43.

With respect to paragraph 44, which stipulated that States parties that had not yet abolished the death penalty could not use certain methods of execution, Mr. Shany restated that the Committee had a nuanced position that countries should neither rush the execution nor prolong the untimely waiting period in prison.   The Committee then adopted introductory paragraph 44.

The Committee will next meet in public on Thursday, 26 July, at 11:30 a.m., to continue discussing the draft General Comment No. 36 on the right to life.

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