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Killings by Non-State Actors and Affirmative State Obligations

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Killings by Non-State Actors and Affirmative State Obligations KILLINGS BY NON-STATE ACTORS AND AFFIRMATIVE STATE OBLIGATIONS This chapter of the Handbook addresses a wide variety of situations in which killings by non-state actors can nonetheless implicate the State to some degree, or invoke responsibilities on its part. The right to life includes not only a prohibition on illegal killings by State authorities, but also entails State obligation is to adequately protect this right and punish violations of it by non-state actors. In situations of widespread killings, or traditions which tend towards regular violence against a particular portion of the population, States can be held responsible for failure to adequately address systemic causes, for instance, through efforts to protect vulnerable populations, improve education, address impunity, or correct perceived inadequacies in law enforcement and the justice system which lead to vigilantism. A. LEGAL BASIS OF RESPONSIBILITY OF STATES FOR VIOLATIONS BY NON-STATE ACTORS ....................................................................................................................... 2 B. KILLINGS BY ARMED OPPOSITION GROUPS ......................................................... 10 C. MANDATE OF THE SPECIAL RAPPORTEUR AND ADDRESSING KILLINGS BY ARMED OPPOSITION GROUPS .............................................................. 22 D. DUE DILIGENCE AND INTER-COMMUNAL/ETHNIC VIOLENCE ............... 25 E. KILLINGS BY VIGILANTES AND MOB JUSTICE ................................................... 29 F. KILLINGS OF “WITCHES” ................................................................................................... 53 G. DEATH SQUADS AND MILITIAS AND VIGILANTE GROUPS ......................... 66 H. “HONOUR” KILLINGS ............................................................................................................ 78 I. KILLINGS BY BANDITS ........................................................................................................... 84 J. “SOCIAL CLEANSING” KILLINGS ................................................................................... 87 K. KILLINGS BY CORPORATIONS ..................................................................................... 101 L. “BLOOD FEUD” KILLINGS ................................................................................................ 103 M. KILLINGS BY PARAMILITARY GROUPS ................................................................ 108 A. LEGAL BASIS OF RESPONSIBILITY OF STATES FOR VIOLATIONS BY NON-STATE ACTORS Report of the Special Rapporteur on extrajudicial executions to the Human Rights Council (A/HRC/14/24, 20 May 2010, ¶¶ 45-47): 45. Human rights and humanitarian law clearly apply to killings by non-State actors in certain circumstances. Thus, for example, country mission reports have investigated killings by rebel and insurgent groups, paramilitary groups, militias, vigilantes, death squads, criminal gangs, bandits, mobs, family members and private individuals. Such killings may be for the purposes of “social cleansing”, to “restore honour”, to punish suspected criminals, or to punish “witches”. They might also be for profit, or be linked to domestic violence familial blood feuds, armed conflict, election violence or inter- communal violence. 46. Because a focus on killings by non-State actors has at times been controversial, the mandate has extensively studied and clarified the legal bases for the responsibility of non-State actors and the State with respect to this category of abuses. In 2004 I identified four general categories of non-State actors and explained the legal implications (E/CN.4/2005/7, paras. 65-76): (a) The State has direct responsibility for the actions of non-State actors that operate at the behest of the Government or with its knowledge or acquiescence. Examples include private militias controlled by the Government (which may, for example, be ordered to kill political opponents) as well as paramilitary groups and deaths squads; (b) Governments are also responsible for the actions of private contractors (including military or security contractors), corporations and consultants who engage in core State activities (such as prison management, law enforcement or interrogation); (c) Where non-State armed groups are parties to an armed conflict, such groups have their own direct legal responsibilities for any killings they commit in violation of international humanitarian law. Where a group exercises significant territorial and population control, and has an identifiable political structure, it may also be important for the Special Rapporteur to address complaints directly to the group and to call for it to respect human rights and humanitarian law norms.1 This has been the approach in reports on Afghanistan, Colombia, the Democratic Republic of the Congo and Sri Lanka. (d) The mandate has increasingly addressed fully “private” killings, such as murders by gangs, vigilante justice, “honour killings” or domestic violence killings. In most cases, an isolated private killing is a domestic crime and does not give rise to State responsibility. However, where there is pattern of killings and the Government’s response (in terms either of prevention or of accountability) is inadequate, the responsibility of the State is engaged. Under human rights law, the State is not only prohibited from directly violating the right to life, but is also required to ensure the right to life, and must meet its due diligence obligations to take appropriate measures to deter, prevent, investigate, 1 See A/62/265, paras. 37-44. 2 prosecute and punish perpetrators. In addition, in reports detailing Governmental violations in response to violence by non-State actors (including gangs or sects), it is important to report on non-State actor violations in order to provide a fair picture of the situation facing the Government. This is reflected in the reports on Brazil, Kenya and Nigeria. 47. In order to understand the dynamics of killings by non-State actors, which are often underreported and under-studied, reports to the Council and the General Assembly have included global studies of particular phenomena such as killings by vigilantes and mob justice (A/64/187, paras. 15-83) and killings of “witches” (A/HRC/11/2, paras. 43-59). My predecessor, Ms. Jahangir, contributed substantially with respect to the issue of “honour killings” (E/CN.4/2000/3, paras. 78-84). Report of the Special Rapporteur on extrajudicial executions to the Commission on Human Rights (E/CN.4/2005/7, 22 December 2004, ¶¶ 65-76): 65. One of the more complex issues arising especially under this mandate concerns killings by non-State actors. The fact that this category is not readily susceptible of a clear definition increases the complexity. Indeed, in recent years the term “non-State actors”, which was long used primarily to describe groups whose purposes are essentially benign such as non-governmental organizations, religious groups and corporations, has increasingly come to be associated with groups whose agendas include wreaking havoc and terror upon innocent civilians.2 66. Although it has not yet come, there will be a time when the international community decides that this category has outlived its usefulness and that it should instead be looking at different ways of dealing with very different actors. 67. Various non-State actors have featured in the reports of previous Special Rapporteurs. Thus, for example, in her 2004 report to the Commission (E/CN.4/2004/7) the Special Rapporteur addressed members of this group under the following three sections of the report: (i) “deaths due to attacks or killings by security forces of the State, or by paramilitary groups, death squads or other private forces cooperating with or tolerated by the State”; (ii) “violations of the right to life of women”; and (iii) “impunity, compensation and the rights of victims”. 68. For understandable reasons, the focus on killings carried out by individuals or groups occupying no official position, and whose actions might even be condemned by the Government, has given rise to some controversy within the Commission. It thus seems desirable to seek to clarify the basis upon which such matters are dealt with in these reports. 2 A More Secure World, for example, focuses extensively on non-State actors but exclusively in terms of the nuclear threat they pose. 3 69. The most important category of non-State actor within the context of this mandate are those groups which, although not government officials as such, nonetheless operate at the behest of the Government, or with its knowledge or acquiescence, and as a result are not subject to effective investigation, prosecution, or punishment. Paramilitary groups, militias, death squads, irregulars and other comparable groups are well known to the readers of the Special Rapporteur’s reports. There is no legal complexity in relation to this group because insofar as the Government is directly implicated its legal responsibility is engaged. 70. A second group, which is becoming far more numerous and very much a part of the landscape in many of the situations brought to the attention of the Special Rapporteur, is private contractors or consultants who, although not government officials in any way, are nonetheless exercising functions which would otherwise have been carried out by the State. This might include prison management, law enforcement, interrogation, etc. In dealing with such cases the Human Rights Committee has made clear, in relation to torture for example,
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