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The Economic and Social Council (Ecosoc) resolution 1982/35 which originally gave the Special Rapporteur his mandate contains no definition of what amounts to ‘summary’ or ‘arbitrary’ execution. Neither are the concepts defined in international treaties which are relevant to the topic.1 The first Special Rapporteur, Mr. Amos Wako, therefore attempted to define the concepts and presented the following tentative definitions: -

‘Summary executions’ is the arbitrary deprivation of life as a result of a sentence imposed by the means of summary procedure in which the due process of law and in particular the minimum procedural guarantees as set out in Article 14 of the Covenant are either curtailed, distorted or not followed.

- ‘Arbitrary execution’ is the arbitrary deprivation of life as a result of the killing of persons carried out by the order of a government of with its complicity or tolerance or acquiescence without any judicial or legal process. -

‘Extra legal execution’ refers to killings committed outside the judicial or legal process, and at the same time, illegal under relevant national and international laws.

Accordingly, in certain circumstances ‘arbitrary execution’ as defined above can be an ‘extra-legal execution’.

Professor Nigel Rodley has defined extrajudicial executions as “killings committed outside the judicial process by, or with the consent of, public officials, other than as necessary measures of law enforcement to protect life or as acts of armed conflict carried out in conformity with the rules of international humanitarian law.

The Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary executions were adopted by Ecosoc resolution 1989/65. Although the instrument is of itself not legally binding, it is relevant in determining the scope of what constitutes unlawful deprivations of life.

The principles have accordingly been referred to in Commission on Human Rights (CHR) resolutions concerning extrajudicial, arbitrary or summary executions since 1992. In res. 1992/72 the CHR recalled the standards which form the legal justification of the mandate of the Special Rapporteur. One of these standards is Ecosoc res. 1989/65 concerning the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary executions. In subsequent resolutions the CHR has recalled these standards, most recently in res. 2000/31: “having regard to the legal framework of the mandate of the Special Rapporteur on extrajudicial, summary or arbitrary executions, including the provisions contained in Commission resolution 1992/72 of 5 March 1992 and General Assembly resolution 47/136 of 18 December 1992”. The principles are divided in three section that issue principles on the prevention, investigation and the legal proceeding as regards extrajudicial, summary and arbitrary executions.

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Mandate of the Special Rapporteur and Conceptual Underpinning

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Mandate of the Special Rapporteur and Conceptual Underpinning

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The Special Rapporteur on extrajudicial, summary, or arbitrary executions is a position within the

United Nations Human Rights Council (UNHRC). The mandate of this Special Rapporteur is to

investigate, monitor, and report on extrajudicial, summary, or arbitrary executions globally.

1. Scope of Mandate: The Special Rapporteur's mandate is broad, encompassing a range

of activities related to extrajudicial, summary, or arbitrary executions. This includes

examining individual cases, patterns of violations, and identifying underlying causes of

such executions. The Special Rapporteur can investigate state-sanctioned executions,

deaths in custody, targeted killings, disappearances, and other forms of unlawful or

arbitrary killings.

2. Fact-Finding and Investigations: A core aspect of the Special Rapporteur's role involves

conducting fact-finding missions, receiving and analyzing reports, and undertaking

investigations into alleged cases of extrajudicial, summary, or arbitrary executions. They

often collaborate with governments, civil society organizations, and other stakeholders to

gather information.

3. Reporting and Recommendations: The Special Rapporteur submits reports to the

UNHRC and the UN General Assembly, documenting their findings and making

recommendations to address violations and improve human rights conditions.

Recommendations often focus on legal reforms, institutional changes, and measures to

prevent future violations.

4. Advocacy and Awareness: The Special Rapporteur raises awareness about the

prevalence of extrajudicial, summary, or arbitrary executions and advocates for their

prevention. They often engage with governments, civil society organizations, and the

public to promote respect for human rights and adherence to international standards.

5. Legal Framework and International Standards: The Special Rapporteur operates within

the framework of international human rights law, including the Universal Declaration of

Human Rights and other human rights treaties. They emphasize the importance of

upholding due process, fair trials, and the prohibition of arbitrary or extrajudicial killings.

6. Cooperation and Dialogue: The Special Rapporteur works collaboratively with

governments, civil society, and other stakeholders to address concerns and improve the

human rights situation. They encourage dialogue and cooperation to implement

recommendations and create mechanisms for accountability.

7. Protection of Victims and Witnesses: The Special Rapporteur's work often involves

advocating for the protection of victims, witnesses, and human rights defenders who are

at risk due to their involvement in investigations or reporting of extrajudicial executions.

8. Challenges and Advocacy for Accountability: The Special Rapporteur faces challenges

in accessing certain countries or regions and in obtaining credible information due to

political resistance or lack of cooperation. They advocate for accountability, seeking

justice for victims and reparation for affected communities.

The mandate of the Special Rapporteur is critical in highlighting and addressing extrajudicial,

summary, or arbitrary executions, and it plays a significant role in holding governments and non-

state actors accountable for such violations of human rights. The work often contributes to

shaping policies, fostering accountability, and promoting a culture of respect for human rights

worldwide.

"Targeted killings" refer to the intentional and selective use of force to eliminate specific

individuals who are deemed to pose a threat or danger. This concept has been a subject of

considerable debate and controversy, both in the context of warfare and counterterrorism

operations. The conceptual underpinning and utility of targeted killings in modern warfare can be

understood from various perspectives:

1. Counterterrorism and National Security: Targeted killings are often employed as a tool in

counterterrorism efforts. The primary concept behind this approach is to eliminate key

figures within terrorist organizations, such as leaders, operational planners, and high-

value targets. By removing these individuals, governments aim to disrupt the functioning

and coordination of these groups, reducing their capacity to carry out attacks and plan

for the future. This approach is rooted in the belief that decapitating the leadership can

weaken the organization as a whole.

2. Precision and Minimization of Collateral Damage: Modern warfare emphasizes precision

and the reduction of civilian casualties. Targeted killings, when executed with accurate

intelligence and advanced technology, can minimize collateral damage compared to

large-scale military operations. This approach may be seen as more ethical in the sense

that it seeks to spare innocent lives while achieving military objectives.

3. Deterrence: The targeted killing of individuals responsible for acts of terrorism or

insurgency can serve as a deterrence mechanism. It sends a clear message to others

involved in similar activities that they are not safe and can be held accountable for their

actions. This, in theory, can dissuade individuals from participating in such activities, as

they fear the consequences of being targeted.

4. Counterinsurgency Strategy: In counterinsurgency warfare, targeted killings can be used

to neutralize key figures within insurgent groups. By removing influential leaders, it can

disrupt the insurgents' ability to organize and control territories. This can create

opportunities for stabilization efforts, the reestablishment of governance, and winning

the support of the local population.

5. Intelligence and Information Gathering: Targeted killings can provide valuable

intelligence and information about the targeted group or network, including their internal

structure, communication channels, and future plans. This information can be used for

further counterterrorism efforts.

However, the utility and morality of targeted killings are subjects of considerable controversy:

1. Legal and Ethical Concerns: The use of targeted killings often raises legal and ethical

questions, especially when conducted in areas outside of traditional battlefields. Concerns

about due process, human rights, and the violation of national sovereignty arise when

military or intelligence agencies target individuals in other countries.

2. Potential for Blowback: Targeted killings can sometimes lead to blowback, where the

killing of one individual may motivate others to join extremist groups or seek revenge. It

can perpetuate cycles of violence and radicalization.

3. Lack of Transparency and Accountability: Targeted killings are often carried out in

secrecy, which can make it challenging to assess their legality and effectiveness. Lack of

transparency and accountability can lead to abuses and mistakes.

4. Strategic Limitations: The effectiveness of targeted killings in achieving long-term

strategic goals can be limited. Eliminating specific individuals may not necessarily

dismantle the entire organization, and new leaders can emerge to fill the void.

In conclusion, the conceptual underpinning and utility of targeted killings in modern warfare are

rooted in the desire to disrupt and incapacitate threats while minimizing collateral damage.

However, the practice is fraught with legal, ethical, and strategic challenges that demand careful

consideration and scrutiny.

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Arguments for and against the Special Procedure

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Arguments for and against the Special Procedure

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The Special Rapporteur on summary and arbitrary executions

Summaries the arguments for and against the mandate.

The main justifications for the Special Rapporteur's mandate regarding summary and arbitrary

executions are as follows:

Human rights protection: One of the primary points of contention is that the mandate is

essential to upholding and advancing human rights, particularly the right to life. The Special

Rapporteur's work primarily consists of monitoring and looking into cases of summary and

arbitrary executions, bringing attention to these violations, and advising member states on

how to stop them and hold those who commit them accountable.

Independent and unbiased voice: Advocates contend that when reporting on instances of

summary and arbitrary executions, the Special Rapporteur offers an independent and unbiased

voice. The rapporteur can speak freely and impartially because they are not restricted by

government structures, which allows them to bring attention to human rights violations that

might otherwise go unreported or ignored.

Another argument for the mandate of the Special Rapporteur is that it helps close gaps in

accountability, particularly in states where the legal system may be weak or incapable of

adequately looking into and prosecuting cases involving summary and arbitrary executions.

For victims and their families, the rapporteur can offer an extra channel for pursuing justice

and compensation.

Advancing global norms: Advocates emphasize that the Special Rapporteur is pivotal in

advancing and maintaining global human rights norms concerning summary and arbitrary

executions. The rapporteur helps raise awareness, pushes states to fulfil their responsibilities,

and advances best practices to stop these violations by keeping an eye out for them and

reporting on them.

Last but not least, supporters contend that by working with member states, the Special

Rapporteur can foster productive communication and collaboration on the problem of

summary and arbitrary executions. By identifying gaps in legislation, policy, and

implementation, the rapporteur's recommendations and engagement with states can contribute

to positive reforms and increased protection of human rights.

The primary objections to the Special Rapporteur's mandate regarding summary and arbitrary

executions can be summed up as follows:

Lack of objectivity: One complaint is that the Special Rapporteur's reports might not be impartial

or provide a fair analysis of the subject. Critics contend that while non-state actors are also

accountable for summary and arbitrary executions, the reports frequently place a strong emphasis

on denouncing state actions, downplaying or ignoring them.

Politicization: A further complaint is that the Special Rapporteur's mandate may be politicized

and that political agendas may have an impact on the reports. Critics contend that without

conducting a comprehensive and unbiased investigation, the rapporteur's work could be used as a

tool to target particular nations or to advance a particular narrative.

Source reliability: A few detractors question the validity of the Special Rapporteur's sources and

supporting data. They contend that the rapporteur might have relied on biased or unreliable

sources of information, which could have produced false or misleading findings.

Lack of transparency: The Special Rapporteur's methodology and process have been criticized

for possibly being opaque. Critics contend that inadequate transparency in the selection and

investigation of cases may compromise the reports' credibility.

Overreach of authority: Some critics wonder if the mandate goes beyond what the rapporteur is

legally entitled to do. They contend that the involvement of the Special Rapporteur could

infringe upon states' sovereign rights to deal with issues of summary and arbitrary executions

within the confines of their own legal systems.

Summarise the arguments for and against the mandate

Arguments for the mandate

 The mandate promotes accountability for the state. The investigation of

unlawful deaths ensures accountability which is necessary to ensure justice

is provided for and to prevent against or deter future violations on the right to

life.

 The mandate promotes transparency in that states that do cooperate with the

mandate are willing to provide needed information which can help the special

rapporteur to provide effective recommendations to combat summary

executions.

 The mandate ensures the protection of human rights enshrined in various

human rights instruments by ensuring that governments respect and protect

these rights.

 The mandate also brings about awareness of instances of summary

executions thus pressuring governments to act to prevent such killings.

Arguments against the mandate (Limitations)

 Low response rates by governments to written communications provided for

by the special rapporteur on summary executions.

 Countries with the most troubling allegations are among the least cooperative

with regards to engaging in constructive consensus and accepting requests

visits and even when state visits are approved special rapporteurs have

encountered government non- cooperation for example it is expected during

the mandate that the special rapporteur will request access to detention

centres during state visits but special rapporteur heyns reported that on two

occasions during state visits such access was denied.

 Lack of adequate resources to meet the demands of the mandate is a

limitation faced by the special rapporteur on summary executions thus

hindering the effective performance of the mandate to prevent summary

executions.

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Value of the Special Rapporteur's Report concerning the use of drones and other lethal autonomous robotics and the protection of life(A/HRC/23/47).Provided a legal framework on the use

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Value of the Special Rapporteur's Report concerning the use of drones and other lethal autonomous robotics and the protection of life(A/HRC/23/47).Provided a legal framework on the use

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Provided a legal framework on the use of force in two context. Firstly, in armed conflict and outside armed conflict. (Targeted killings)

In Armed conflict

Lex Specialis states that if there are two laws governing the same factual situation, the law governing a specific subject matter (lex specialis) overrides a law governing only general matters (lex generalis).

Rules of International Humanitarian law: Targeted killings are only lawful if the target is a combatant or fighter and in the case of civilians is at the time the person directly participates in hostilities furthermore the killing must be militarily necessary to achieve military objectives, must be propionate (should consider the advantage to be gained in comparison to the damage caused to civilians) and civilian harm should be prevented or minimized).

Outside armed conflict

Article 6 of the ICCPR states that every human being has the right to life and shall not be arbitrarily deprived.

Article 2 of the ECHR- In defence of a person form unlawful violence, in order to effect lawful arrest and in action lawfully taken to quell a riot.

Provided a legal framework from which the use of force through the use of drones can be considered.

States should ensure that the right to life is protected regardless of whether the use of force is used within or outside of its borders.

Use of force by the use of drones can be justified in the following cases. Firstly, consent has to be provided for by the highest government authorities. Secondly, Self Defence- when use of force is used through drones by one state to another, self-defence can be used as a justification (Article 51 of the UN charter). Furthermore, states relying on self-defence must abide with the requirements of necessity and proportionality.

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Despite the challenges faced by the Special Rapporteur on Summary Executions in operating optimally, they have undoubtedly made significant progress in promoting the right to protection against arbitrary depravations of life. Particularly, the recommendations that targeted killings should only be performed against military targets, and the use of drones should only be permitted by a state's highest form of authority, and in self-defense.

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Philip Alston and others, Alston and Heyns on Unlawful Killings

(Pretoria University Law Press).

See Report - Summary or Arbitrary Executions, UN Doc. E/EC.4/1983/16, para. 53.

Rodley, N. 1999, The Treatment of Prisoners under International Law, 2nd ed., Clarendon Press, Oxford, p. 182 (emphasis added)

Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, Ecosoc res. 1989/65, para. 1 (emphasis added).

Extrajudicial, summary or arbitrary executions ñ Report of the Special Rapporteur, submitted pursuant to Commission on Human Rights resolution 2000/31, section I B.