Reporting on the conflict between the mega mining project Conga and the people of Cajamarca, Peru
The intrinsic worth and dignity of the human being, explicitly stipulated in the Preamble of the International Covenant on Civil and Political Rights (ICCPR), recognises ‘the equal and inalienable rights of all members of the human family.’ Human dignity is the bedrock of the International Human Rights framework. The right to life itself, set down in article 6 of the Covenant is considered to be ‘the supreme right of the human being’ or the over arching right – the right ‘without which, all other rights would be devoid of meaning.’ (here para 42.)
The Human Rights Committee stresses that deprivation of life by State authorities is a matter of the ‘utmost gravity’ (see para 3.) Peruvian Law No. 30151 of Jan 2014 grants immunity to the armed forces and national police should they take a life while on duty. In light of recent concerns expressed by the High Commissioner of Human Rights, this article will examine law No. 30151 in the context of Peru’s obligations as a party to the ICCPR.
The Right to Life
Article (6)(1) of the ICCPR states 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.’
The jurisprudence of the Human Rights Committee confirms that lethal force may only be exercised by the authorities to meet a proportionate threat, it must have a legitimate objective, be absolutely necessary and only exercised as a last resort (see Baumgarten v. Germany (960/2000). The UN Special Rapporteur advises that the term ‘necessity’ is defined into three gradients. Qualitative – the use of force is not avoidable to achieve the objective. Quantitative – the amount of force used does not exceed that which is required , and Temporal – the use of force must only be used against a person who presents an immediate threat. (here para 60.)
In the case of de Guerrero v. Colombia , the Committee held the view – when seven people lost their lives as a result of the deliberate action of the police – that the deprivation of life was intentional. No warning was given, and there was no evidence that the actions of the authorities were necessary, either in their own defense or in defense of others, or to effect the arrest or prevent the escape of the persons concerned (see para 13.2.) Thus, if a complaint is raised under article 6 of the ICCPR, a burden of proof exists whereby the State must prove its actions were absolutely necessary under the given circumstances.
Significantly, a positive obligation exists inherent to the right to life. A negative right may be best described as a right which requires no mediation on behalf of the state, rather the state is prevented from interference or from curtailing a right. Whereas, a positive obligation requires that a state must take action to ensure that a right may be enjoyed. This includes the enactment of laws to ensure the right is protected, and by training the Police and Prison Guards in human rights to minimise the chance of violation. (see para 8.39.) In the case of Kindler v Canada, Mr. Wenergreen stated ‘the standard way to ensure the protection of the right to life is to criminalise the killing of human beings.’ The enactment of ‘adequate domestic legal framework for the use of force by police officials is a State obligation’ ( see para 47.)
In General Comment No. 6 , the Human Rights Committee notes that the right to life can not be derogated from in times of war or during a state of emergency. Therefore it is not permissible for State authorities to simply declare a state of emergency, as a precursor to exercising unnecessary and disproportionate lethal force. The State has additional obligations to ‘diffuse as opposed to escalate tensions’ during large assemblies. No force may be used against peaceful and lawful assemblies, and the presence of some non peaceful protestors does not turn the assembly as a whole into a non peaceful assembly. (see para 75.)The UN Special Rapporteur warns that ‘repeating the mistakes of the past with deadly consequences run contrary to the duty to protect life’ (see para 53.)
The Committee considers that States parties ‘should take measures not only to prevent and punish deprivation of life by criminal acts, but also to prevent arbitrary killing by their own security forces.’ (see para 3.) Therefore, the law must strictly control and limit the circumstances in which a person may be deprived of his life by such authorities. (see para 3.)Thus it may be argued the Peruvian State does not protect the right to life by law as it no longer ‘controls’ or ‘ strictly limits’ the use of lethal force as required by the provisions set down under article 6 of the Covenant.
State responsibility to punish deprivation of life by criminal acts
Article 2(3) of the ICCPR states to “ensure that any person whose rights or freedoms… are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in official capacity”
Complaints raised under article 6 of the Covenant are often taken in conjunction with article 2. In the case of Barbato v. Uruguay (84/1981), the Committee found the State was under an obligation to take effective steps ‘to bring to justice any persons found to be responsible for his death, and to pay compensation to his family.’ In the case of Bautista v. Colombia (563/1993), on the issue of what constitutes ‘effective steps’ the Committee noted;
“Purely disciplinary and administrative remedies cannot be deemed to constitute adequate and effective remedies within the meaning of article 2, paragraph 3, of the Covenant, in the event of particularly serious violations of human rights, notably an alleged violation of the right to life.”
In the case of Chongwe v Zambia (821/1998), the Police force promised to undertake its own investigation into an alleged police involvement in the shooting of Chongwe and Dr. Kenneth Kaunda, whilst on their way to launch a civil disobedience campaign. On this occasion the Human Rights Committee held under article 2 paragraph 3 (a) ‘that the State party is under an obligation to provide an effective remedy.’ Furthermore the Committee urges;
“The State party to carry out independent investigations of the shooting incident, and to expedite criminal proceedings against the persons responsible for the shooting. If the outcome of the criminal proceedings reveals that persons acting in an official capacity were responsible for the shooting and hurting of the author, the remedy should include damages to Mr Chongwe. The State party is under an obligation to ensure that similar violations do not occur in the future.”
License to Kill
The right to life places an obligation on the State under article 2 to investigate, to provide an effective remedy which includes criminal proceedings and prompt prosecution and conviction of those responsible. Failure to investigate cases of death following the use of force, is itself a violation of article 6 (here para 79.) Moreover, it is clear from the jurisprudence of the Human Rights Committee, that such investigations must be impartial and independent. The State is also obligated to ensure appropriate protection of those at the centre of these cases and their families from harassment (see Bautista v. Colombia (563/1993) para 10.)
Significantly, in the case of de Guerrero v. Colombia the Committee found that although Colombian law made the police actions justifiable ‘the right to life was not adequately protected by the law of Colombia as required by article (6)(1.)’ (see para 13.3.) Thus, adherence to national laws, which fail to adequately protect the right to life in accordance with International obligations, will not exempt the state authority or any individual from sanctions under the ICCPR. Peruvian Law No. 30151, described in practice as “a license to kill” by the Instituto Libertad y Democracia, is clearly at odds with the protection of the right to life imposed by article 6 and article 2 of the ICCPR.