20 Extra-judicial options and responses to international humanitarian law violations

Rohini Sen

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Learning Outcome

Students will be introduced to the concept of transitional justice. They will be able to identify the various reparations initiatives available. Further, they will understand the need for extra-judicial options and the type of extra-judicial options available.

Introduction

The International Center for Transitional Justice (ICTJ) defines transitional justice as “a set of judicial and non-judicial measures that have been implemented by different countries in order to redress massive human rights violations”. These measures are judicial and extra-judicial in nature.

Transitional justice is an approach that seeks to achieve justice in times of transition from conflict and/or state repression. This form of justice provides recognition of the rights of the victims, promotes civic trust and strengthens the democratic rule of law. The core elements of a transitional justice policy are criminal prosecutions, reparations, and institutional reform and truth commissions.

Reparations initiatives are designed in different ways. Among other things, they include financial compensation to individuals or groups guarantees of non-repetition, social services such as healthcare or education. Further, reparations are also in the form of formal apologies or public commemorations. Here are a few examples:

Chile

Between 1996 to 2008, the government paid $1.6 billion to certain victims of the Pinochet regime. Further, they established a specialized health care program for the survivors. The President issued an official apology.

Morocco

The government is implementing individual and community-based reparations for over 50 years of widespread abuse. Previously, certain projects proposed by communities were deliberately excluded for political reasons. Now, the government is working on including these suggestions in their developmental goals.

Sierra Leone

Sierra Leone has launched a massive campaign to distribute modest compensation, rehabilitation and other benefits to eligible victims. For this, the President of Sierra Leone formally apologized to women victims of his country’s 10-year armed conflict.

Cambodia

As a part of the reparation process, the Extraordinary Chambers in the Courts of Cambodia ordered that the names of victims of a notorious prison be listed in the Court’s website, as well as the apologies issued by the convicted person.

Public institutions such as police, military and judiciary are often perceived as instruments of repression and systemic violations of human rights. They are in need of dire institutional reform. Such reform should happen when the country is undergoing transition. In such situations, transitional justice helps by holding member states and other parties accountable.

II Extra-judicial options

Judicial recourse at the time of IHL violations is long and involves establishment of a well defined institutional structure. Judicial recourse may not always be the viable. Therefore, States resort to extra-judicial measures during international humanitarian law violations.

The said measures are legitimate in international law. However, it does not take unilateral armed intervention into account.

Unilateral armed intervention: Activities carried out by a State of a group of States, without referring to any custom or treaty. International law does not permit this.

A wide range of coercive measures is employed by States to exert pressure on other States. They are broadly classified as retortion and unarmed reprisals.

Here are some of the measures available for States to fulfill their obligation to ensure respect for international humanitarian law.

a) Expulsion of diplomats

Retortion: These are unfriendly and damaging act, but they are intrinsically lawful. Eg: A situation where state XYZ attacks state ABC as a response to a prior act, which might have been unfriendly and lawful.

Reprisals: These are unlawful by nature. They are justified because of prior unlawful acts committed by the State at which the act is directed.

A classic example of the explosion of diplomats would be during the hostages affair in the United States embassy in Tehran between 1979 to 1980. A successful revolution by the Islamic fundamentalists against the pro-American Shah of Iran made the United States an object of criticism. The US Embassy in Tehran became a visible target. For 444 days, the Iranians held the American diplomats hostage. The United States expelled some of the Iranian diplomatic personnel posted in Washington.

b) Severance of diplomatic relations

After the expulsion of the Iranian diplomats in Washington, the United States broke off diplomatic relations with Iran.

c) Halting ongoing diplomatic negotiations

The Strategic Arms Limitation Talks (SALT) were two rounds of bilateral talks between the United States and the USSR. This was on the issue of armament control. Following the Soviet invasion of Afghanistan in 1979, the American Senate refused to examine the SALT-II agreements.

d) Non-renewal of trade privileges or agreements

Following this incident, United States decided not to renew its bilateral maritime agreement with the USSR in 1981. Further, in January 1982, they decided that they would introduce restrictions on the admission of USSR vessels to American ports.

e) Reduction of public aid to the state in question

A group of fifteen young men were killed in December 1982, for criticising the military dictatorship then ruling Suriname. They were tortured and shot dead. As a reaction to militia killings and other human rights violations, Netherlands suspended implementation of a long-term aid programme to Suriname. Many civilians from Suriname fled to the Netherlands.

Reprisals

  • Possible unarmed reprisals include measures to exert economic pressure on other States. Economic ties are hampered with by not respecting the agreements either by force or running counter to the rules governing the relations.
  • Restrictions and/or band on arms trade, military technology & scientific cooperation In August 1990, many European communities took a series of economic decisions regarding Iraq. It comprised, an embargo on the sale of arms and other military equipment. Further, all technical and scientific co-operation was suspended.
  • Severe trade barriers on imports and exports
  • The United States imposed a grain embargo against the USSR, following the Soviet invasion of Afghanistan in 1979.
  • During the Falklands conflict in 1982, the European communities imposed a total ban on imports from Argentina.
  • The United States suspended all commercial relations with Uganda in 1978 owing to human rights violations.
  • Ban on investments In 1985, France banned investments from flowing into South Africa. This was because of the repression that apartheid brought with it.
  • Freezing of capital The European communities decided to freeze Iraqi assets due to the violations.
  • Suspension of cooperation agreements of any sort In December 1981, the United States suspended the 1972 US-Polish Air Transport Agreement following the Polish government’s repression of the Solidarity movement.

Extra-judicial killings and the UN

An extra-judicial killing is the killing of a person by governmental authorities without any legal process or judicial proceeding. These kinds of killings are unlawful by nature. They do not follow the due process requirements of the jurisdiction that they are in. In such a situation, what could be the law enforcement model?

In cases of extra-judicial killing, the law enforcement model is intricate. Categorisation of targeted killings as ‘extra-judicial executions’, rather than war crimes or grave breaches of international humanitarian law implies that the relevant legal model is a law-enforcement model. Therefore, the applicable regime by which state action is to be is to be assessed is the international human rights regime.

Under such a regime the intentional use of lethal force by state authorities can be justified only in strictly limited conditions. The state is obliged to respect and ensure the rights of every person to life and to due process of law. Any intentional use of lethal force by state authorities that is not justified under the provisions regarding the right to life, will, by definition, be regarded as an ‘extra-judicial execution’.

A. The Principles of Effective Prevention and Investigation of Extra-legal, arbitrary and summary executions

  • The Principles of Effective Prevention and Investigation of Extra-legal, arbitrary and summary executions was adopted by the United Nations in 1989.

Here is a brief summary of what the principles state:

  • Governments shall prohibit all extra-legal, arbitrary and summary executions by law. Any such killing is a criminal offence and is punishable. These executions cannot be justified even under exceptional circumstances such as war, threat of war, internal political instability, etc.
  • In order to prevent extra judicial killings, a clear chain of command for all officers will be issued by the government. This chain of command will consist of the duties of officials responsible for apprehension, arrest, detention, custody and imprisonment and those officials authorised by law to use force and arms.
  • No one will be involuntarily be returned or extradited to a country where there are substantial grounds for believing that they may become a victim of extra-legal execution in that country.
  • Voluntary protection should be granted to people who are in the danger of extra-judicial, arbitrary or summary execution.
  • Governments shall make every effort to prevent extra-legal, arbitrary and summary executions. This can be done through measures such as diplomatic intersession, improved access of complainants to intergovernmental and judicial bodies and public denunciation.
  • Governments of countries where extra-legal, arbitrary and summary executions are reasonably suspected to occur must cooperate fully in international investigations on the subject.

B. Investigation

  • A thorough and prompt investigation will be conducted in all cases of suspected extra-legal, arbitrary and summary executions. The government shall maintain offices for investigation.
  • The investigative authority will have the power to obtain all the information necessary to the inquiry.
  • An independent commission of inquiry will be set up for the government to pursue its investigations. Members of this commission will be chosen on the basis of their recognized impartiality, competence and independence as individuals.
  • A physician will conduct an adequate autopsy before the body of the deceased is disposed of.
  • Complainants, witnesses and those conducting the investigation and families shall be protected from violence, threats or any other form of intimidation.
  • Those potentially implicated in allegations of extra-legal, arbitrary and summary executions shall be removed from any position of control or power.
  • Once the deceased person has been identified, a notification of death will be issued. The family and relatives of the deceased person will be informed immediately. The body will be returned to them once the investigation has been completed.
  • A written report shall be made within a reasonable period of time on the methods and findings of such investigations. This report shall be made public immediately. It should include the scope of the inquiry, procedures and methods used to evaluate evidence. Further, the conclusions and recommendations should be based on the findings of fact and relevant law. The report should also describe in detail, the specific events that were found to have occurred and the evidence upon which these findings were based.
  • The Government, in turn, will either reply to the report of the investigation or indicate the steps to be taken in response to it.

C. Legal Proceedings

  • If anyone has been found to participate in extra-legal, arbitrary or summary executions in any territory under their jurisdiction, after due process and investigation, the Government will bring them to justice. They may do so by extraditing such people to other countries that wish to exercise jurisdiction.
  • This principle will apply irrespective of who and where the perpetrators of the victims are, the nationalities or where the offence was committed.
  • The families and dependents of victims of extra-legal, arbitrary or summary executions shall be entitled to fair and adequate compensation within a reasonable period of time.
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Reference

  1. Transitional justice: https://www.ictj.org/about/transitional-justice David Kretzmer, Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defense, European Journal of International Law. http://www.ejil.org/article.php?article=292&issue=15
  2. Umesh Palwankar, Measures available to States for fulfilling their obligation to ensure respect for international humanitarian law, 28th February 1994 https://www.icrc.org/eng/resources/documents/misc/57jmaw.htm
  3. A short history of the department of state, U.S Department of State Office of the Historian. https://history.state.gov/departmenthistory/short-history/iraniancrises