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Principles Against Executions Scholarship Repository University of Minnesota Law School Articles Faculty Scholarship 1990 Principles against Executions David Weissbrodt University of Minnesota Law School, [email protected] Terri Rosen Follow this and additional works at: https://scholarship.law.umn.edu/faculty_articles Part of the Law Commons Recommended Citation David Weissbrodt and Terri Rosen, Principles against Executions, 13 HAMLINE L. REV. 579 (1990), available at https://scholarship.law.umn.edu/faculty_articles/364. This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in the Faculty Scholarship collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. PRINCIPLES AGAINST EXECUTIONSt Professor David Weissbrodt* Terri Rosen** I. INTRODUCTION The right to be free from extra-legal, arbitrary, or summary ex- ecutions is recognized in a number of international human rights in- struments. Such killings violate article 6 of the International Covenant on Civil and Political Rights,' which provides that "every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life."2 Although international organizations have developed procedures and remedies in response to extra-legal, arbitrary, and summary killings,' executions continue to occur in many countries. These killings include: (1) political assassina- tions; (2) deaths resulting from torture or ill-treatment in prison or de- t An abbreviated version of this article was published in Amnesty International-USA Legal Support Network Newsletter, Vol. 5, No. 3, Fall/Winter 1988. * Briggs & Morgan Professor of Law, University of Minnesota School of Law. B.A. 1966, Columbia University; J.D. 1969, University of California (Berkeley). Director, University of Min- nesota Human Rights Center; Legal Counsel, Minnesota Lawyers International Human Rights Committee; Legal Counsel, Center for Victims of Torture; President, Readers International. Member, American Law Institute; American Society of International Law. ** Terri Rosen, J.D., University of Minnesota, 1989. I. International Covenant on Civil and Political Rights, G.A. Res. 2200A, 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doe. A/6316 (1966) entered into force Mar. 23, 1976 [hereinafter International Covenant]. 2. Id. at 53. Prohibitions against arbitrary killings are also found in article 4 of the Ameri- can Convention on Human Rights, signed Nov. 22, 1969, OAS Doc. OEA/Ser.L/V/I1.65, Doc. 6 (1985) entered into force July 18, 1978 ("No one shall be arbitrarily deprived of his life."); article 4 of the African Charter on Human and Peoples' Rights, adopted June 27, 1981, OAU Doe. CAB/LEG/67/3 rev.5, 21 I.L.M. 58 (1982) entered into force Oct. 21, 1966 ("Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right."); and article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222 (1950) entered into force Sept. 3, 1953 ("No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law."). Similarly, article 3 of the Universal Declaration of Human Rights, adopted Dec. 10, 1948, G.A. Res. 217A (1II), U.N. Doe. A/810, at 71 provides, "Everyone has the right to life, liberty, and security of person." 3. See Weissbrodt, Protectingthe Right to Life: InternationalMeasures Against Arbitrary or Summary Killings by Governments, in THE RIGHT TO'LIFE IN INTERNATIONAL LAW 297 (B. Ramcharan ed. 1985). HAMLINE LAW REVIEW [Vol. 13 tention; (3) deaths in the context of enforced or involuntary "disap- pearances;" (4) deaths resulting from excessive use of force by law- enforcement personnel; and (5) executions without due process.4 In order to give meaning to the right to be free from arbitrary killings, safeguards must be developed to make arbitrary killings less likely to occur and to insure the investigation of suspicious deaths which do occur. Many suspicious deaths are not adequately investi- gated because the killings are committed by various branches of gov- ernment either directly, or with their consent or acquiescence. 5 Exam- ples of such suspicious deaths include those of Archbishop Oscar Romero in El Salvador, Benigno Aquino in the Philippines, Father Jerzy Popieluszko in Poland, and Rodrigo Rojas de Negri in Chile. In each of these instances, inadequate investigation procedures were used which rendered the ultimate conclusion questionable. When an investi- gation of a suspicious death is conducted, it often results in erroneous causes of death, whether from a confrontation between government forces and armed opposition groups, an attempted escape from custody or resistance to arrest, an exercise of self-defense, suicide, or a sudden illness. 6 Many countries have procedures for investigating deaths, but these procedures become ineffective when the deaths occur under suspicious circumstances, such as potential involvement of the police, the army, or other governmental agents.7 In these instances, a thorough and inde- pendent investigation is rarely conducted. Relevant evidence is either ignored or concealed. Consequently, the perpetrators of the killings are seldom brought to justice. In the last decade, the international community has come to recog- nize the continued existence of arbitrary and summary killings throughout the world as well as the need for international action to safeguard individuals from such killings. The United Nations has de- 4. See Ramcharan, The Concept and Dimensions of the Right to Life, in THE RIGHT TO LIFE IN INTERNATIONAL LAW I (B. Ramcharan ed. 1985). 5. Report of the Special Rapporteur on Summary or Arbitrary Executions, U.N. Doc. E/ CN.4/1983/16, at 29-42 (1983) [hereinafter Report of the Special Rapporteur]. 6. Id. 7. Id. at 26-27. The Special Rapporteur stressed the legal issues surrounding the investiga- tion of arbitrary executions by stating: In cases where an ordinary civilian was responsible for such deaths, .... the circum- stances have been investigated, an autopsy carried out and those found responsible for the death have been tried, convicted and punished in accordance with the law. However, where death was caused by the police, the army or other law enforcement agencies or persons acting under their protection, such investigations have been the exception rather than the rule. .. 579] PRINCIPLES AGAINST EXECUTIONS veloped Principles on the Effective Prevention and Investigation of Ex- tra-legal, Arbitrary and Summary Executions ("Principles"). Because this action represents a significant step in international efforts to stop arbitrary and summary killings, this article will provide an authorita- tive interpretation and history of the Principles. Part II outlines the background and development of the Principles. The Minnesota Law- yers International Human Rights Committee,8 a nongovernmental or- ganization,9 played a significant role in the development of the Princi- ples. Accordingly, Part III examines the role a nongovernmental organization may have in drafting international standards by setting forth the Principles and reviewing the source and history of the deliber- ations behind each Principle. Finally, Part IV examines the effective- ness of the Principles by applying them to a current, urgent situation of unexplained deaths in Australia. II. BACKGROUND In recent years, various international human rights organizations have investigated arbitrary killings. These groups include Amnesty In- ternational,1" Human Rights Watch,11 and the Minnesota Lawyers In- 8. The Minnesota Lawyers International Human Rights Committee is a non-profit organi- zation committed to promoting human rights and investigating human rights violations in the U.S. and abroad. The Committee advocates against individual human rights abuses, researches and investigates human rights conditions in other countries, encourages the adoption of international human rights standards by all countries, and educates the membership, the bar, political leaders and the public concerning human rights issues. 9. Nongovernmental organizations, organizations without governmental participation or en- dorsement, frequently play a vital role in the formulation, adoption and entry into force of resolu- tions, declarations or treaties in the field of international human rights. For a discussion of non- governmental organizations engaged in the protection of human rights, see Weissbrodt, The Contribution of International Nongovernmental Organizations to the Protection of Human Rights, in HUMAN RIGHTS IN INTERNATIONAL LAW: LEGAL AND POLICY ISSUES 403 (T. Meron ed. 1984); L. LIVEZEY, NONGOVERNMENTAL ORGANIZATIONS AND THE IDEAS OF HUMAN RIGHTS (1988). 10. Amnesty International is a nongovernmental organization involved in the protection of human rights. Its mandate includes: (1)seeking the immediate and unconditional release of "pris- oners of conscience," that is, "persons detained because of their beliefs, color, sex, ethnic origin, language, or religious creed, provided they have not used or advocated violence;" (2) opposing the death penalty, torture, and other cruel or inhuman or degrading treatment or punishment of all prisoners; and (3) working for fair trials for political prisoners. See Amnesty International Stat-
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