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Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions on armed non-State actors: the protection of the right to life (A/HRC/38/44) (Advance Unedited Version)

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Human Rights Council Thirty-eighth session 18 June– 6 July 2018 Agenda item 3 Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development

Note by the Secretariat

The Secretariat has the honour to transmit to the Human Rights Council the report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Agnes Callamard, submitted pursuant to Council resolution 35/15. The report focuses on the role of armed non-State actors (ANSAs) vis-à-vis the right to life and argues that ANSAs are bound by human rights obligations. The report first highlights the gap between, on one hand, United Nations decision-making bodies addressing ANSAs as human rights perpetrators and duty-bearers, and on the other hand, the large protection and accountability deficits for people affected by ANSAs. The Special Rapporteur argues that international human rights law (IHRL) well complements the existing international legal regime to hold ANSAs to account. She shows that the State’s central role under IHRL does not exclude other actors and that the sources of ANSAs human rights obligations and legal personality may be traced to treaty and customary law. She then proposes a framework to hold ANSAs accountable under IHRL: the extent of ANSAs human rights obligations should be context-dependent, ANSA-specific and gradated, determined through a review of the nature of ANSAs control, capacity and governance.

I. Introduction

  1. The present report is submitted to the Human Rights Council in accordance with resolution 35/15. To inform its contents, the Special Rapporteur issued a call for submissions to States, academia and civil society on the topic of “non-State actors and extrajudicial, summary or arbitrary killings” to which she received several replies. The call was followed by an expert meeting held on the same topic on 15-16 June 2017 at the University of Essex and a follow-up meeting on 8 November 2017 at the Geneva Academy of International Humanitarian Law and Human Rights. The Special Rapporteur thanks both institutions for their support as well as those who submitted responses to the call for submissions.

**II. Activities of the Special Rapporteur **

  1. A full overview of the main activities of the Special Rapporteur between March 2017 and February 2018 can be found in the observations on communications report (A/HRC/38/44/Add.3). Activities undertaken in preparation of her most recent thematic report on the unlawful death of refugees and migrants to the General Assembly are included therein (A/72/335). Information on earlier activities can be found in her previous report to the Human Rights Council (A/HRC/35/23).

  2. The Special Rapporteur conducted official visits to the Republic of Iraq from 14-23 November 2017 (A/HRC/38/44/Add.1), and El Salvador from 25 January to 5 February 2018 (A/HRC/38/44/Add.2), at the invitation of the respective Governments. She sent requests/reminders for official visits to the Governments of Brazil, Democratic Republic of the Congo (DRC), Kenya, Libya, Nigeria, Pakistan, Syrian Arab Republic, United States of America, Venezuela and Yemen. The Special Rapporteur thanks the Government of Mozambique for responding positively to her request for a visit and encourages the Governments of all above-mentioned States to extend an invitation for a visit in the near future.

III. Armed non-state actors: the protection of the right to life Introduction

  1. Armed non-State Actors (ANSAs) have become a pervasive challenge to human rights protection. They may be called armed opposition groups, insurgents, rebels, terrorists, militias, criminal cartels, or gangs. They may hold or have held a sizable territory or a smaller one or none at all. Some may launch deadly operations extra-territorially, including in Europe, Asia, Africa and the Middle East. Some operate in the context of international or non-international armed conflicts (NIAC). Others operate in the shadowy intersection of peace and war, sometimes referred to as low intensity or unconventional violence . Some are driven by ideology or profit, many by a mixture of both. The vast majority engage in a range of governance-like functions, ranging from registering birth and running clinics and schools to collecting taxes, developing rules and policies, and operating dispute-resolution mechanisms or their own prisons. Some have political or state-like ambitions. All use violence as part of their modus operandi.

  2. Like killings by States, killings by ANSAs may be driven by “anti-civilian ideologies, ” de-humanization, which, at its worst, may result in genocide and crimes against humanity. Like States, ANSAs may kill for political reasons, in retaliation, to create fear, for material gain. In the vast majority of cases, killings are not random but part of a calculated strategy.

  3. ANSAs pose a large number of challenges to the human rights community, particularly in terms of accountability. How to name ANSAs acts of violence? How to effectively support the rights of their victims, as well as the public right to know? While ANSAs conduct may be immoral or illegal, can it be constructed as a violation of human rights law, which has traditionally been reserved for States? Should the distinction between victims, on the basis of the relationship of the perpetrators with the State, be justified and sustainable, when ANSAs commit similar organized acts of violence?

  4. In the Special Rapporteur’s opinion, in light of the proliferation of complex ANSAs, the blurred distinction between political insurgents and criminal gangs, and armed organizations with an international brand and operations (see also A/RES/71/118), the current legal framework to address ANSAs presents unacceptable limitations. It is unjust to the victims of ANSAs violations and ineffective at addressing protection gaps. It is not tenable, sustainable, or ultimately principled.

  5. This report maintains that ANSAs are bound by human rights obligations. It shows that developments within the United Nations over the last 20 years, address ANSAs as duty-bearers. It clarifies the sources of these obligations, and shows that the attribution of human rights obligations does not validate ANSAs authority. The Special Rapporteur then proposes a context-dependent, ANSA-specific and gradated framework focusing on the nature and extent of ANSAs control, governance, and capacity.