Criminalizing extrajudicial killings.

AuthorCreegan, Erin
  1. INTRODUCTION

    If those who committed torture abroad come to the United States, they can be prosecuted as torturers, (1) or deported under human rights provisions of U.S. immigration law. (2) But our ability to criminally punish extrajudicial killings--often very closely linked to the crime of torture--is less. For example, if a state official commits an extrajudicial killing by torturing and ultimately killing an individual, and later comes into the jurisdiction of the United States, punishment options are limited to those described above. (3) Why is this?

    There are a few reasons for the difficulty in bringing individuals that have committed extrajudicial killings to justice. The biggest obstacle is that an extrajudicial killing is not criminalized under international law in as broad a manner as torture. Even though torture seems less severe than death, torture is an action that is never excusable under international law. Yet states are permitted to intentionally kill individuals in a number of circumstances. They may execute them after due judicial process, they may incapacitate them in a valid exercise of law enforcement, or they may target them pursuant to the laws of armed conflict. Even the term "extrajudicial killing" does not perfectly reflect the situations in which a state may kill--war and law enforcement operations are both extrajudicial, yet killing is and should be permitted in both cases.

    Nonetheless, even though intentional killing, unlike torture, can sometimes be lawfully done, there exists a vast class of killings committed by public officials of states that are done pursuant to or motivated by the same illiberal motives as torture: to suppress dissent, to eliminate political rivals, and to frighten civilian populations. These killings should be outlawed and prosecutors given the tools to fight them.

    The primary goal of this paper is to suggest the adoption of a statute that criminalizes extrajudicial killing, one that may be based on an international convention. To do so, this paper defines the crime of these killings carefully, separating them from lawful exercises of force and distinguishing their illiberal and vindictive nature. First, this paper begins by providing a brief background on extrajudicial killings and torture, as well as the current failure of international criminal law to criminalize extrajudicial killings sufficiently. Next, this article analyzes a crime closely related to extrajudicial killing--the crime of torture--nearly three decades after the entry into force of the seminal human rights crime treaty, the Convention Against Torture ("CAT"). This convention may provide the model for a new international ban on killings. Finally, the article concludes with a proposed U.S. law criminalizing extrajudicial killings, whether underpinned by an international convention, or not.

    Considering the differences between torture and extrajudicial killings, but taking account of their many similarities, this article analyzes whether the structure of the CAT can be adopted to suit the new, heretofore neglected, purpose of criminalizing extrajudicial killings through the creation of a new convention. This article determines whether the structure and provisions of CAT, successfully widely adopted by the international community, can be adapted into a convention for extrajudicial killing that has a strong likelihood both of being adopted by states, and effectively suppressing these illiberal killings. In conclusion, this article considers how to draft a domestic criminal law for the U.S., a statute that grants both jurisdiction and the ability to allow prosecutors to charge these types of criminals, whether or not a convention against extrajudicial is created.

  2. THE STATUS QUO: THE CRIME OF TORTURE AND THE FACT OF KILLINGS

    Both extrajudicial killing and torture had a place in the ancient world. Towards the end of the 20th century, however, there emerged a consensus that torture was not a legitimate tool of the state, and corresponding legal regimes followed. However, such legal regimes have not emerged in regards to extrajudicial killings. A brief history of these crimes is useful in determining whether extrajudicial killing can be criminalized similarly in the future.

    1. Criminalizing Torture

      In the ancient world, torture was common. Practices ranged from stoning to crucifixion to disgusting devices such as the "brazen bull" from Ancient Greece by which victims were burned and boiled to death while their screams were converted into music by a specially designed instrument. (4) Torture lasted into the middle ages of Europe. For example, one of the first times torture was used to suppress political opinion took place during the Inquisition. (5) Medieval trials were by "ordeal"--rather than testing a conviction with evidence, defendants suffered certain pain to prove their innocence, and torture was considered an effective, and legitimate, means to elicit truth and confessions from defendants. (6) Like so many others of the ancient time, these barbarous practices had difficulty withstanding the emergence of the modern era: the dawn of the Enlightenment, (7) of democracy, and of greater social justice and technological progress. (8) Torture, as a common practice, seemed to be going by the wayside.

      Yet, strangely, some governments began to utilize torture as a tactic of modern warfare. Twentieth century democracies, which by definition agree to be bound to the rule of law and the importance of writing un-crossable lines for governmental power, discovered a utility for torture. While democracies have generally chosen not to go to war with each other, (9) post-colonial wars and wars of national liberation in the modern era created an uncertain role for the law of armed conflict in intrastate conflicts. (10) This uncertainty has allowed some democracies to use torture, relying on facilities for detention and harm that their unconventional enemies could not replicate. (11)

      France admitted to the use of torture in the Algerian War for the independence of the French colony. (12) Some of the commonly reported practices included: sleep, food and water deprivation; exposure to extreme heat or cold; electric shock; loud noise; forced maintenance of "stress" positions for long periods of time; water torture; beatings; sexual abuse; humiliation and degradation; use of drugs; and, threats against relatives. (13) Likewise, the republican constitutional monarchy of the United Kingdom used torture--or at the very least, "cruel and unusual treatment," (14)--in dealing with Irish separatists of the Irish Republican Army. Tactics included: "hooding"; wall standing and stress positions; sleep, food and water deprivation; and, constant loud and unpleasant noise. (15)

      The United Kingdom, like many colonial liberal societies, was especially cruel abroad. The scale of violence used against colonized peoples may seem more like crimes against humanity than isolated acts of torture that a statute intends to prevent. However, tactics used by the United Kingdom against Kenyans during the 1950s included: beatings; electric shock; use of cigarettes on the body; skin searing; use of pliers on sensitive body parts; rape, including penetration with foreign objects; and dragging people behind cars. (16) Likewise, Spain did little to reform its law enforcement and military apparatuses for dealing with terrorists even as it emerged from the Franco dictatorship. (17) As a result, members of the Basque separatist terrorist group, Euskadi Ta Askatasuna ("ETA"), continued to be tortured in the new democratic regime. For example, allegations against the ETA during the 1980s and 1990s state that 84 percent of Basque activists in prison were tortured, and large numbers of men in the Basque country were arrested and tortured, but never charged with crimes. (18) In one case, members of a Basque newspaper accused police forces of asphyxiating them with plastic bags, and of forcing them to participate in a simulated execution. (19)

      With even democracies finding a utility for torture, it can scarcely be surprising that illiberal societies, dictatorships, fascist regimes, and communist states have engaged in even more extreme measures in order to ensure control of the people, or to force a great societal change based on ideology. (20) Whereas democracies seem driven to use torture under the stress of separatists, terrorists, or crumbling empires, dictatorships must ply violence constantly in order to maintain control. Every day is a part of an ongoing, dire national security emergency.

      In the later part of the 20th century, a clearer consensus emerged that torture was not legitimate and that derogation from democratic principles in emergencies--such as the famous "ticking time bomb" scenario--undermined the rule of law. (21) It was also accepted that torture was not especially effective as it produced false intelligence and false confessions. (22) Yet defining and criminalizing torture internationally did not take place until decades after World War II, a period of time when torture-like abuses were part of a decolonization strategy. An inability to qualify and define the phenomena as a discrete legal concept was certainly part of the problem. (23) Many documents declared the broad belief that "torture" should not be permitted, whatever the concept might mean. (24)

      After a number of torture cases became public in the 1960s and 1970s in Algeria, Latin America, and elsewhere, human rights groups launched campaigns and begin to scrutinize the problem. (25) At this time, there was a wave of new U.N. General Assembly resolutions reaffirming these principles. (26) Most significantly, in 1977 the General Assembly requested that the Commission on Human Rights draft a binding convention against torture based on the General Assembly's 1975 Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel...

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