Article

The Competence of the UN Human Rights Council and its Special Procedures in relation to Armed Conflicts: Extrajudicial Executions in the 'War on Terror'

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Abstract

Since 2003, as part of its ‘war on terror’, the United States has taken the position that the UN Commission on Human Rights and its successor, the UN Human Rights Council, as well as the system of ‘special procedures’ reporting to both bodies, all lack the competence to examine abuses committed in the context of armed conflicts. The article examines the arguments put forward by the US in the specific context of the work of the UN Special Rapporteur on extrajudicial, summary or arbitrary executions. The authors conclude that the consistent practice of the human rights organs for almost 25 years, often supported and until 2003 never opposed by the US, runs counter to the current US position. Acceptance of the US position would not only undermine efforts to hold the US accountable but would also have a major impact on the international system of accountability as a whole.

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... Pakistan is also a US ally in the war on terror. Both countries are accused of rights violations and a major investigation would implicate them both (Amnesty 2012, Sanders 2018, Alston, Morgan-Foster, and Abresch 2008. Due to the ongoing conflict in Afghanistan, both countries have restricted access to intelligence information about controversial practices of the war on terror, so much so that, even years after the war, leaks are the primary means revealing any information about them, such as the Wiki Leaks. ...
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Extraterritorial application of the ECHR to Turkey in northern Cyprus in a whole scale manner is misplaced. Given the underlying reasoning behind the effective control standard that is linked to notions of international humanitarian law and occupied territory, and accounting for a historic understanding of the situation in northern Cyprus and how it developed, it is conceivable that Turkey should not maintain the full gamut of obligations under the ECHR.
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This article presents an overview of the various mechanisms to improve the situation of people affected by armed conflict. Some are anchored in international humanitarian law, but numerous actors are increasingly contributing to its implementation outside the original framework established for that purpose. Human rights monitoring bodies, the diverse organs and agencies of the United Nations and regional organizations, and governmental and non-governmental organizations are seeking to address situations of armed conflict. However, humanitarian action unattached to any political agenda and combining protection and assistance is often the only remedy for the plight of the victims of armed conflicts.
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This article explores the relationship between international humanitarian and human rights law during non-international armed conflict. It seeks to answer two questions which are crucial in practice, but where the relationship between the two branches and the answers of humanitarian law alone are unclear. First, according to which branch of law may a member of an armed group be attacked and killed? Second, may a captured member of an armed force or group be detained similarly to a prisoner of war in international armed conflicts or as prescribed by human rights? Through application of the lex specialis principle, this article discusses possible answers to these questions.
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What role, if any, does international human rights law (IHRL) have to play in situations of armed conflict? More specifically, does IHRL have any application to the conduct of the “war on terror”? More specifically still, does IHRL partly or wholly displace the traditional law of armed conflict (LOAC) - as embodied, for instance, in the Hague and Geneva Conventions - in regulating the armed conflict that arises in the “war on terror”?We focus in this Article on the last of these questions. To sharpen the discussion, we concentrate on the applicability of the1966 International Covenant on Civil and Political Rights (ICCPR) to the conduct of hostilities in the “war on terror.” More narrowly still, we will consider the applicability of ICCPR Article 6(1) - which guarantees that “[n]o one shall be arbitrarily deprived of his life” - to combat operations in the “war on terror” by U.S. Armed Forces outside the United States.One advantage of this specific focus is that it will enable us to examine, within the brief compass of this Article, the legality of the United States’ use of unmanned Predator drone missiles to kill suspected al Qaeda targets, such as the incident involving the killing in Yemen on November 3, 2002 of Qaed Salim Sinan al-Harethi - reputedly a senior al Qaeda operative - while he was traveling with five companions in a car. Citing the ICCPR, the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions took the position that the attack constituted a clear case of extrajudicial killing. The United States, in reply, maintained that the ICCPR had no application to the incident on the grounds that “[t]he conduct of a government in legitimate military operations, whether against al Qaida operatives or any other legitimate military target, would be governed by the international law of armed conflict,” rather than by IHRL. The Obama Administration has continued the practice of using missiles to target and kill suspected al Qaeda and Taliban figures. It is reported that unmanned drones have become among the U.S. military’s favorite weapons in the conflicts in Iraq and Afghanistan - including for use in targeting suspected terrorist compounds - and the Obama Administration is said to be preparing a budgetary request for the development of new drone systems.In Part II, we survey the origins and growth of the LOAC and IHRL, and we discuss the beginnings of their asserted “convergence.” In Part III.A, we restate and defend the traditional view that the LOAC and IHRL fundamentally differ in their scope, purposes, and protective concerns. Then, in Part III.B, we argue that the ICCPR, in particular, was not intended, and should not be understood, to regulate the conduct of armed conflicts that are otherwise governed by the LOAC. In Part III.C, we address certain objections that have been raised against this construction of the ICCPR. Finally, in Part IV, we apply the results we have reached to the controversy over the incident involving Qaed Salim Sinan al-Harethi.
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The Universal Periodic Review (UPR) of the United Nations Human Rights Council promises to be a useful tool for examining human rights situations in states in an objective, non-selective, universal and transparent manner. It is an undertaking imbued with a shift from the former Commission’s policies and practice of shaming to a new consensual and cooperative model of human rights evaluation. The experience of African countries, both during the negotiation over its normative and institutional framework and in the two sessions of the Working Group on UPR, lays bare the challenges to the new human rights body and its unique peer review mechanism. The article critically examines the participation of African countries in the UPR and highlights some of the issues that deserve, at this early stage, the attention of all those who mind to see the objectives of the UPR fully realised.
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Ms. Jahangir repeatedly stated this interpretation in each subsequent year. See Report of Ms
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109 Report of Ms. Asma Jahangir, Comm. Hum. Rts., 55th sess., UN Doc. E/CN.4/1999/39, para. 7 (6 Jan. 1999). Ms. Jahangir repeatedly stated this interpretation in each subsequent year. See Report of Ms. Asma Jahangir, Comm. Hum. Rts., 56th sess., UN Doc. E/CN.4/2000/3, paras. 6(f), 30, and 103-105
  • S Report By Mr
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Report by Mr. S. Amos Wako, Comm. Hum. Rts., 48th sess., UN Doc. E/CN.4/1992/30, p. 176 (31 Jan. 1992).
Ndiaye repeatedly stated this interpretation in his report to the Commission each subsequent year. See Report by Mr
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104 Ibid., para. 60. Mr. Ndiaye repeatedly stated this interpretation in his report to the Commission each subsequent year. See Report by Mr. Bacre Waly Ndiaye, Comm. Hum. Rts., 50th sess., UN Doc. E/ CN.4/1994/7, para. 10(l) (7 Dec. 1993); Report by Mr. Bacre Waly Ndiaye, Comm. Hum. Rts., 51st sess., UN Doc. E/CN.4/1995/61, para. 7(d), paras. 394-96 (14 Dec. 1994); Report by Mr. Bacre Waly Ndiaye, Comm. Hum. Rts., 52nd sess., UN Doc. E/CN.4/1996/4, para. 10(f), paras. 587-89 (25 Jan. 1996); Report by Bacre Waly Ndiaye, Comm. Hum. Rts., 53rd sess., UN Doc. E/CN.4/1997/60, paras. 38-41 (24
Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Addendum, Summary of cases transmitted to Governments and replies received
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Alston, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Addendum, Summary of cases transmitted to Governments and replies received, UN Doc. E/CN.4/2005/7/ Add.1, paras. 357-358 (17 March 2005).
on derogations during a state of emergency, UN Doc
Human Rights Committee, General Comment No. 29 (2001) on derogations during a state of emergency, UN Doc. CCPR/C/21/Rev.1/Add.11, para. 3 (24 July 2001).
) ( ' T[aking] note with appreciation of the report of the Special Rapporteur and welcom[ing] his recommendations with a view to eliminating extrajudicial, summary or arbitrary executions ' )
  • Comm
  • Hum
  • Rts
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Comm. Hum. Rts., Res. 1993/71, para. 4 (10 Mar. 1993) ( ' T[aking] note with appreciation of the report of the Special Rapporteur and welcom[ing] his recommendations with a view to eliminating extrajudicial, summary or arbitrary executions ' ).
Rodley, and the Special Rapporteur on extrajudicial, summary or arbitrary executions, Mr. Bacre Waly Ndiaye, mission to Colombia
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106 Joint report of the Special Rapporteur on the question of torture, Mr. Nigel S. Rodley, and the Special Rapporteur on extrajudicial, summary or arbitrary executions, Mr. Bacre Waly Ndiaye, mission to Colombia, Comm. Hum. Rts., 51st sess., UN Doc. E/CN.4/1995/111, para. 57 (Jan. 16, 1995).
Sixth Cmt., summary record of the 20th mtg
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Ibid., at p. 11, para. 30, n. 58. 50 UNGA, Sixth Cmt., summary record of the 20th mtg., 3 Nov. 2005, statement of the United States, UN Doc. A/C.6/60/SR.20, at 6, para. 33 (29 Nov. 2005).
extrajudicial, summary, or arbitrary executions, Mr Bacre Waly Ndiaye, submitted pursuant to Commission resolution
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107 Report of the Special Rapporteur on extrajudicial, summary, or arbitrary executions, Mr. Bacre Waly Ndiaye, submitted pursuant to Commission resolution 1995/73, mission to Burundi, Comm. Hum. Rts., 52nd sess., UN. Doc. E/CN.4/1996/4/Add.1 (July 24 1995).
on the nature of the general legal obligation imposed on states parties to the Covenant (Art. 2), UN Doc
Human Rights Committee, General Comment No. 31 (2004) on the nature of the general legal obligation imposed on states parties to the Covenant (Art. 2), UN Doc. CCPR/C/21/Rev.1/Add.13, para. 11 (26 May 2004).
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by Mr. S. Amos Wako, Comm. Hum. Rts., 39th sess., UN Doc. E/CN.4/1983/16, paras. 29-39 (31
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103 Report by R. Bacre Waly Ndiaye, Comm. Hum. Rts., 49th sess., UN Doc. E/CN.4/1993/46, paras. 60-61 (23 Dec. 1992).
Philip Alston, Extrajudicial, Summary or Arbitrary Executions
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125 Report of the Special Rapporteur, Philip Alston, Extrajudicial, Summary or Arbitrary Executions, Addendum, UN Doc. E/CN.4/2006/53/Add.1, at 125-136 (27 March 2006).
  • S Report By Mr
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Report by Mr. S. Amos Wako, Comm. Hum. Rts., 48th sess., UN Doc. E/CN.4/1992/30, p. 176 (31 Jan. 1992).
supra note 23, para. 45. 112 Resolution on extrajudicial, summary, or arbitrary executions
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111 UN Doc. E/CN.4/2005/7, supra note 23, para. 45. 112 Resolution 2005/34 on extrajudicial, summary, or arbitrary executions, para. 12 (19 April 2005).
114 Commission des droits de l'homme, Compte rendu analytique de la 56e séance
  • Ibid
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113 Ibid., preamble. 114 Commission des droits de l'homme, Compte rendu analytique de la 56e séance (19 April 2005) UN Doc. E/CN.4/2005/SR.56, para. 88-89 (2006).
Special Rapporteur, on his mission to Rwanda from 8 to 17
118 Report by Mr. B.W. Ndiaye, Special Rapporteur, on his mission to Rwanda from 8 to 17 April 1993, UN Doc. E/CN.4/1994/7/Add.1 (11 August 1993).