On 30 and 31 May 2011 the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns presented his first annual report to the Human Rights Council during a clustered interactive dialogue together with the Special Representative of the Secretary-General on business and human rights and the Special Rapporteur on the independence of judges and lawyers. He presented several reports based on both his personal work starting with his appointment to the post in August 2010 and work done by his predecessor Phillip Alston. His annual report discusses the legal norms applicable to the use of lethal force during demonstrations, using data from 76 States. Mr Heyns noted the timeliness of this theme given the civil unrest in several States in North Africa and the Middle East. His analysis, based on surveys, visits, and communications from various governments, show that many domestic legal systems fall short of international obligations on the right to freedom of assembly and the use of force during demonstrations. States taking the floor largely supported the Special Rapporteur’s focus on freedom of assembly. However, several States questioned the methodology and objectivity of Mr Heyns’ report, citing that the Special Rapporteur may be prioritising certain evidence over others. Moreover, States highlighted that the implementation on the ground of the guidelines set forth in the report will vary widely.
Sweden is leading efforts to renew the mandate of the Special Rapporteur during the 17th session. It is taking a minimalist approach, and has presented a procedural resolution based on the previous resolution adopted in 2008. Despite this ‘lean’ approach, the informal negotiations on the text have encountered predictable challenges. In particular, several States have opposed recalling General Assembly Resolution 65/208 of 21 December 2010, which restored the reference to sexual orientation to the biannual resolution on extra-judicial killings, after the Third Committee had deleted the language from the text in November. In addition. Nigeria, along with other States, took issue with ‘welcoming’ the report and claimed that this would ‘give impetus for the secretariat to implement’ its recommendations. It inferred that it could only ‘welcome’ documents that have been negotiated in an intergovernmental setting.
According to Mr Heyns’ presentation, there is currently no comprehensive international law specifically addressing the right to demonstrate. The most common problems associated with demonstrations are the excessive use of force by State security forces, extrajudicial violence and detention, damage to property by all involved parties, and impunity for those who participated in human rights violations. Special note was taken to address the recent protests in Yemen, Syria, Tunisia, Egypt, Belarus, and Bahrain, where human rights are often disregarded and violated by security forces, who frequently follow outdated tactics to control large crowds. Mr Heyns continued by articulating that although many States argue such force is required to prevent further violence, his report questions this view and promotes a policy where additional safeguards ensure that both protesters and security forces are as peaceful as possible. The Special Rapporteur also addressed the use of ‘states of emergency’, citing article 4 of the International Covenant on Civil and Political Rights that certain rights may be restricted in such cases. However, he also admitted that States sometimes use this procedure as an excuse to consolidate control over their population.
In addition to his annual report, the Special Rapporteur also presented his report on communication about alleged extrajudicial killings. A large part of the communications sent to governments concerned killings in the context of armed conflict. Of particular concern to the Special Rapporteur the recent video evidence of alleged human rights violations in Sri Lanka during the final phase of its civil war. The Special Rapporteur said that previously unexplained ‘elements of the video have now been verified’, and that they show that serious international crimes have been committed.
Other areas of concern stated in Mr Heyns’ opening presentation included elements of his mission reports, including the use of the death penalty in Iran, blood feuds and violence in Albania, the high homicide rate in Ecuador, comprehensive consultations and compensation for civilian deaths in Afghanistan, and a series of follow-up recommendations to his predecessor’s visit to Kenya. In the latter case, he pointed out that the investigation into the killing of two human rights defenders who had cooperated with his predecessor Philipp Alston remains inconclusive. The response of the Kenyan delegation was dismissive, rejecting the legitimacy of Mr Alston's recommendations outright. The lack of a thorough investigation into this case of reprisals underlines the need for the Council to more concretely address this issue.
Comments in the interactive dialogue on how to balance the principal themes of freedom of assembly and security varied greatly. Sweden, Brazil, Austria, and the United Kingdom supported the tenor of the report, citing that emphasis must be placed on curbing the use of deadly force under all circumstances precluding immediate self-defense. The United Kingdom went on to acknowledge that Egypt was a prime example of security forces demonstrating proper restraint. The US, however, disagreed with the Special Rapporteur that the response to a particular demonstration needed to include an assessment of its content, reiterating its position that restrictions were to be avoided irrespective of the ideas propagated.
Other states, including China, the Russian Federation, Pakistan, and Nigeria (on behalf of the African Group) struck a different cord in their response to civil protest. Nigeria (on behalf of the African Group) acknowledged a responsibility for States to equip themselves with preventative measures to avoid violence, but also felt it ‘inconceivable that governments would allow protests to go unrestricted that could end up description social life and harming citizens.’ The Russian Federation called on the Special Rapporteur to cooperate more closely with other special procedures and cautioned against an ‘overstepping of his mandate’.
Several States were concerned with the implementation of the recommendations of the Special Rapporteur. South Africa and Jordan inquired what type of security training might be helpful. The Special Rapporteur responded that beyond implementing distinct and transparent guidelines for security forces, training focused on the psychology of crowd control would be recommended, using Interpol as a reference for sharing expertise. Slovakia and the United Kingdom suggested that the Special Rapporteur attempt to visit countries that have recently endured mass protests in order to gain information ‘on the ground’. Poland stressed its concern over the loophole concerning ‘states of emergency’, however the Special Rapporteur reaffirmed that certain rights, including freedom of expression and assembly, may be curtailed during situations when the State is in danger.
Sri Lanka used its allotted time to respond directly to the video evidence mentioned in the Special Rapporteurs report and the appeals for an international investigation supported by several States including the United States, Denmark, and the United Kingdom. It rejected the Special Rapporteur’s suggestion that the video’s credibility was confirmed and instead complained that the experts involved in the examination should have been changed for the renewed examination. Additionally, it claimed that the manner in which the video was shown without forewarning the Sri Lankan government exposed the inherent bias of those showing the video. On 3 June, Amnesty International organised a side event showing a Channel 4 documentary on the violations committed in the final phase of the war in Sri Lanka. Unsurprisingly, the Government delegation present continued its policy of calling the video material ‘fake’, and refused to engage with the substance of the calls for an independent international investigation into all available evidence as requested by the Special Rapporteur.
NHRI and NGO participation was substantial, covering a diverse range of topics within the Special Rapporteurs mandate. The World Organization Against Torture welcomed the report on extrajudicial execution and reiterated Poland’s request to examine the abuse of power in state emergency situations. The concern for extrajudicial killings was echoed by the Centro Direchos de Humanos and the ALRC regarding violence in Mexico and Pakistan respectively; Mexico has seen thousands of deaths related to drug cartels and impunity for perpetrators, and in Pakistan reports of violence and assassinations for journalists and political activists have been documented. The COC (Netherlands) spoke out against the death penalty based on sexual orientation and gender identity, citing that 3 of the 7 countries have penal codes containing capital punishment for homosexuality currently are members of the Human Rights Council. In his answers, the Special Rapporteur affirmed that he would continue to address killings based on sexual orientation and gender identity.
The Special Rapporteur thanked NHRIs and NGOs for their participation and stressed their importance as entry points into investigating human rights abuses and developing appropriate responses. However, he stressed that the primary onus for accountability remains squarely on the shoulders of the States.