This article is written by Suhani Bahety of O.P. Jindal Global University, an intern under Legal Vidhiya.
“Injustice anywhere is a threat to justice everywhere,”
~Martin Luther King Jr.
ABSTRACT
This article gives an overview of the legal challenges involved in addressing extrajudicial killings internationally. The article points to the importance of addressing extrajudicial killings. A discussion is then given to the root causes of this anomaly such as authoritarian regimes, political influences and state impunity, jurisdictional conflicts, sovereignty claims and Religiously motivated killings (non-state actors) complicating legal responses. It analyzes the effectiveness or lack thereof of relevant existent legal frameworks, such as international human rights treaties and regional legislations, aimed at the prohibition of such acts. Despite such frameworks, various factors always hinder not just the effective prosecution and accountability, but their needed implementation. The article discusses instances of extrajudicial killings, as documented in different countries to demonstrate the difficulty in prosecuting perpetrators and attaining justice for the victims. Ultimately, this article advocates for a more robust multilateral approach and innovative mechanisms to ensure accountability and justice for the rule of law.
KEYWORDS
Extrajudicial Killings, Fundamental Human Rights, Law, Justice, Authoritarian Regimes, Jurisdiction, Sovereignty, International, Political, Accountability.
INTRODUCTION
Extrajudicial killings, defined as unlawful and deliberate killings of individuals without judicial proceedings, are a scourge on human rights worldwide. They occur under various circumstances; state-sponsored violence and non-state actors, most often targeting marginalized communities. The occurrence of such killings raises severe questions of accountability, justice, and the efficacy of international law.
The notion of extrajudicial killings has its source in the breach of fundamental human rights, mainly the right to life; they were recognised as one of the most critical principles of the international human rights standards from the advent of the Second World War. The Universal Declaration of Human Rights, adopted in 1948, states expressly in Article 3 that “Everyone has the right to life, liberty, and security of person”. Gradually, the international human rights standards developed, as a response to these atrocities aimed basically at establishing that some fundamental rights are universal and should be guaranteed worldwide. This prohibition against the arbitrary deprivation of life protects the person against such an arbitrary incursion, to ensure that the state cannot engage in murder or permit killings to happen without any lawful justification or without due process of law. Its assertion was bolstered by the adoption of the International Covenant on Civil and Political Rights in 1966. Over the following decades UN adopted further international instruments such as the principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions in 1989 and the Declaration on the Protection of all Persons from Enforced Disappearance in 1992. Such instruments were established to respond to the continuing problem of extrajudicial killings and enforced disappearances.
IMPORTANCE OF ADDRESSING THE ISSUE OF EXTRAJUDICIAL KILLINGS
The question of extrajudicial executions is a particularly sensitive one because it involves the breach of universally approved fundamental human rights. Such actions severely undermine the whole process of the rule of law, perverting the judicial processes and preventing individuals from enjoying the basic legal protection available to them. They operate hand in hand with negligence towards any accountability, thereby entrenching impunity and destroying public confidence in state institutions. A state is bound to protect its citizens according to the customary principle of law, and EJKs are a gross violation of that resolution.
These killings usually target political activists, journalists, and members of minority communities. This may create an atmosphere where criticism against the establishment is suppressed, and social change is stalled. The failure to address these killings leads to an escalation of violence, and it also incites vigilante justice, which poses a further threat to public order. The impact on victims’ families and communities is also profound, as the lack of due process can leave them without any recourse for justice.
To simply have extrajudicial killings taking place evinces a contemptuous attitude towards international standards of human rights and their accompanying legalism. The international community is thus under an obligation to adhere to those standards inclusive of holding governments responsible for their actions or inaction toward developing and integrating such standards into law.
ROOT CAUSES OF EXTRAJUDICIAL KILLINGS [SOCIO-LEGAL CHALLENGES]
Authoritarian regimes –
To consolidate power, maintain an iron grip on dissent and instil fear in the general populace, there is a tendency for such authoritarian regimes to resort to extrajudicial killings. Once instated as dictators, such regimes operate in an extra-legal fashion using violence as a tool to eliminate anyone thought to pose a threat, namely political foes, activists, or even mere citizens with feisty attitudes toward state authority. The spectrum of violence can vary from targeted killings of individual perpetrators to broader “haunts” of terror aimed at specific communities or groups.
Take for example a real-life case of Ferdinand Marcos’s regime in the Philippines, especially during and in the aftermath of the proclamation of martial law in 1972. Though Marcos claimed he imposed martial law to combat communist rebels, it was by and large a tool of repression against his political enemies, the press, and various rebel groups. Thousands of his political opponents were murdered, disappeared, and/or tortured. Among them were a number of farmers, students, lawyers, journalists, tribal leaders, and academics. The practice of “salvaging”, or the disappearance and summary execution of subsumed suspects by the military, became widespread. Even after the formal lifting of martial law, these killings, in tandem with other gross human rights violations, stayed. The Marcos regime’s endeavours stand bathed with the most blatant moves of an authoritarian government deploying extrajudicial killings in heightened measures, under cover of national security. This authoritarian intensification of heinous crimes resulted in state impunity.
Impunity and political backing together produce an environment conducive to state-sanctioned violence. Emboldened by the notion that there will be no repercussions, a country’s security personnel commit killings without fear of being held accountable. Extrajudicial killings are commonly justified by political authorities as a means of ensuring order, and national, and public security. These executions are justified not only by popular claims but also by the concepts of proportionality and the theory of utilitarianism.
A real-life case showing how grave and far-reaching the stage of extrajudicial killings under President Rodrigo Duterte’s controversial war against drugs can be is that of Gener Rondina. While police were allegedly surrounding an open street house wherein, he lived, Rondina, eyewitnesses say, attempted to surrender them by shouting, “I will surrender, I will surrender, sir”, as they broke in. Eyewitness testimony establishes that he was unarmed and did try to comply with police orders to kneel and raise his hands. Yet the police shot him after he was first detained at his residence. Witnesses further recount how the police ordered the family members out of the room first before opening fire, then dragged Rondina’s body out and left it near a sewer before putting it in the vehicle. Family members later discovered blood spattered throughout the house and noted that valuables, including a laptop and money, had been taken. Together with more expansive reporting, this incident lines up with police supposedly projecting and generating evidence and changing crime scenes to justify their actions of self-defence or resistance, often against unarmed victims. Amnesty International equates these killings to what is characterized as a systematic wave of extrajudicial executions targeting primarily poor people in urban areas. The extrajudicial killing of Gener Rondina is emblematic of the larger crisis in the global community, where impunity reigns among law enforcement agencies.
Jurisdictional and sovereignty conflicts-
Concerns about jurisdiction and sovereignty can significantly worsen extrajudicial killings, especially when victims’ families try to obtain justice. Due to political pressure or fear of retaliation, local courts typically refuse to arrest police officers who have been directed to carry out extrajudicial killings. This then leads to judicial oversight and a lack of transparency in the country’s legislation. The culture of non-accountability exacerbates the impunity that thrives within law enforcement institutions.
Take for instance US drone strike case. The major jurisdiction issue here was the violation of Pakistan’s sovereignty. In 2013, the Peshawar High Court ruled that US drone strikes violated national sovereignty and this was an “open violation of basic human rights” as well as violations of the Geneva Conventions. The judge emphasized that these strikes were carried out without Pakistan’s authority, therefore breaking the essential notion of Article 2(4) (UN Charter) of the use of force against the territorial integrity of a state. Despite resistance from Pakistani lawmakers (including former Prime Minister Nawaz Sharif, who said the strikes were not aiding Pakistan in its war against terrorism), prior governments have carried out illicit operations.
A key problem is the ambiguity of the law that governs drone strikes. There is much debate about whether it is legitimate to term premeditated killings with firearms criminals. A few argue that international humanitarian law (IHL) should apply, while others advocate for a law enforcement strategy. This vagueness means that extrajudicial executions are not clearly defined, resulting in an accountability vacuum. Drone strikes, for example, have been claimed by the United States to be in self-defence, and detractors contend that endless civilian casualties are occurring when the boundary has not been drawn under humanitarian law.
Domestic legal frameworks make it more difficult to hold people accountable for extrajudicial killings caused by drone strikes. The Pakistani constitution grants limited powers to courts in distinct tribal areas, which impedes the prosecution of persons who violate the law. As a result, the geographical limitations on such jurisdiction promote a culture of amnesty among the security forces involved in these operations.
Lack of investigative resources and the pressure of generating rapid results-
A common belief is that encounters are a speedy way to get things done. The investigation, arrest, prosecution, and trial phases of due process can take a lot of time and resources. Inadequate training, a lack of people, or a lack of investigation equipment are some examples of resource limitations that police forces may encounter. Given these constraints, encounters—which are more immediate—may be viewed as a more sensible strategy. Consequently, the burden of investigation is avoided.
In addition to this, the public’s perception exacerbates the right to a fair trial. When the public loses confidence in the judiciary’s ability to render prompt rulings, they may perceive encounters as an example of quick justice. Even if the interactions take place outside of the court system, this impression might support the police’s reputation as efficient law enforcement agents. In society, these cops who carry out such killings are generally raised to the levels of hero worship and also receive media glorification for their charlatan bravery.
Conflicting interpretations of the definition-
When there is no universal definition, governments and others often manipulate the term to exclude certain acts from being called extrajudicial killings and thereby give impunity to the perpetrators. The lack of an efficient universally agreed definition creates loopholes which are cleverly used by those who want to allow governments to escape responsibility for unlawful killings. In India, extrajudicial killings are often called “encounters” with criminals or insurgents by the police or security forces. The state claims that such killings happen during legitimate operations even when there is no evidence to support it. This justification gives the police and military impunity as they can blur the lines of distinction between the use of necessary force and extrajudicial killing. Additionally, some administrations of the state security forces argue that the state’s definition of “terrorist” is too broad and allows the state to justify extrajudicial killings of political opponents and activists.
Religiously driven killings (non-state actors)-
Religious motives for homicide/murder can make extrajudicial killings (EJKs) worse by adding a belief system that makes these acts seem okay or even necessary to those who do them. When people use religious ideas to paint certain groups as enemies or threats to their faith, it strips away the humanity of the victims. This removes any moral or ethical barriers against violence, which makes it easier to carry out unlawful killings. This religious angle often creates a belief that violence against these groups is not just acceptable but blessed by a higher power.
A notable case occurred on April 23, 2019, when Saudi Arabia executed 37 people, at least 33 of whom were Shia. The government carried out these deaths following what many human rights organizations deemed unjust trials. The charges against the defendants included terrorism and protest-related acts.
Saudi leaders have traditionally viewed the Shia population with suspicion. They frequently portray Shia activism and dissent as a threat to national security and religious harmony. According to reports, in 2019, the executed prisoners were judged guilty based on torture-induced confessions. This practice of targeting Shias for their religious beliefs and political actions demonstrates how religious narratives might lead to increased killings in the country that are not legal.
INTERNATIONAL AND NATIONAL LIMITATIONS PROMOTING CONTINUANCE OF THE KILLINGS
Limitations of regional legal charters-
Regional human rights groups, like the African Commission on Human and Peoples’ Rights or the Inter-American Commission on Human Rights, often struggle to enforce human rights standards. These organizations can’t bind member states so they rely on diplomatic pressure and suggestions. Take the African Charter on Human and Peoples’ Rights – it lets individuals complain, but its enforcement is weak. This means countries that carry out extrajudicial killings face little accountability.
In 2004, the League of Arab States adopted an Arab Charter on Human Rights in the form of a treaty with a supervisory body, but it has not yet proved to be an absolute success to date. The Arab Charter is criticized for failing to “take advantage of developments that have followed the adoption of optional protocols to international treaties; emphasising and prioritising Islam over other religions that may be practised in the region; allowing the continued use of corporal punishment and the death penalty under Shari’ah”; allowing a conservative interpretation of Sharia to restrict individual rights, such as the right to freedom of movement under Article 26; allowing inconsistencies to persist throughout the region; and failing to explicitly condemn Zionism as a form of racism that violates human rights. The Arab Charter’s lack of a mechanism incorporating “the mandate to receive complaints from individuals or NGOs” renders it “the weakest” of the four systems when compared to the European, inter-American, and African regimes.
These regional committees lose credibility when there are poor resolutions and follow-up, which permits violations to go unpunished. Factually, there are only four regional charters that exclusively cover the African, American, European, and Arab portions of the world, excluding one of the major regions, Asia. This form of limited governance and the absence of a human rights charter for some regions add to the problem of limiting illegal killings.
Limitations of UNHRC-
The UNHRC has been accused of not being able to speak up for human rights in situations of extrajudicial killings. It can investigate and report on human rights abuses but its resolutions are non-binding and subject to political games by member states.
For example, countries with big power can shield their allies from scrutiny and water down the Council’s ability to address serious violations. This political dynamic makes it difficult for the UNHRC to hold governments accountable for extrajudicial killings as seen in ongoing conflicts in Syria. In its most recent report, the Syrian Network for Human Rights (SNHR) disclosed that 503 civilians were killed in Syria in December 2024. The SNHR also noted that extrajudicial executions and torture are still prevalent and that there is a growing need to preserve evidence of these crimes.
Limitations of ICC & Rome statute-
The International Criminal Court (ICC) and the Rome Statute, while intended to address serious international crimes, have significant restrictions that limit their effectiveness. One key concern is the concept of complementarity, which states that the ICC can only act when national jurisdictions refuse or are unable to genuinely investigate or punish crimes. This means that the ICC is less likely to move against stronger states capable of conducting their own investigations, earning criticism for focusing on “states that do not have good judicial systems”. Furthermore, its jurisdiction is not absolute, as specified conditions must be met prior to starting proceedings, as outlined in Article 13 of the Rome Statute. These include referrals by a State Party, action by the United Nations Security Council, or the prosecutor acting proprio motu.
However, all of these possibilities are subject to political pressure. State party referrals are uncommon due to concerns about reciprocal action, but they are also open to self-referrals, allowing governments to exploit the ICC for political objectives. Along with this, politically motivated diplomatic relationships and permanent members’ veto privileges limit the UN Security Council’s capacity to refer to cases.
Lack of universal consensus-
In most instances, the inability to agree on universal human rights standards is founded on political and economic interests; power dynamics may be more fundamental than accountability. States resist certain international norms which may be deemed a threat to their sovereignty or political stability. This corrupt play of power creates selective enforcement, allowing extrajudicial killings to go without check. For example, countries with strategic alliances may turn a blind eye to human rights violations by their allies, making it even more challenging to achieve a common position against such practices.
Lack of effective monitoring and reporting mechanism-
Finally, the lack of effective monitoring and reporting mechanisms contributes to the persistence of extrajudicial killings. In many international treaties, obligations are even outlined to report human rights practices, but compliance is always inconsistent. Witness protection programs are typically lacking or nonexistent, making people less likely to come forward with proof of abuse. The failure to implement strong monitoring systems has the effect that most violations are unreported and unaddressed.
POSSIBLE SOLUTIONS TO ADDRESS THE PANDEMIC OF EXTRAJUDICIAL KILLINGS
Lowering the Burden of Proof- Civil remedies for victims of state-sponsored EJKs could be created with a lower burden of proof for plaintiffs, shifting the burden to the government to demonstrate its non-responsibility once a state practice is shown. This approach, inspired by the Inter-American Court of Human Rights, could provide speedier access to compensation and justice, acting as a deterrent to government obstruction of investigations.
Robust establishment of corruption-free independent commissions and tribunals having jurisdiction worldwide. Accountability mechanisms may be improved through independent international commissions to investigate claims of extrajudicial killings. These could be specifically set up to deal with human rights violations, offering a platform for victims to obtain justice. Furthermore, this commission might be designated as expressly accountable for witness protection in order to promote a fair trial for the individual.
Promote Victim Support and Reparations: Putting in place integral support systems for the victims and their families, as well as making legal aid available, psychological care, and financial reparations, can begin to address this harm. It is in keeping with the spirit of the UN Principles on the Right to a Remedy that ensures effective remedies in cases of violation of human rights.
CONCLUSION
All in all, extrajudicial killings, defined as unlawful and deliberate killings of individuals without judicial proceedings, are a scourge on human rights throughout the world. There is a need to cultivate an honest global community and sensitivity. There have been innumerable cases of human rights breaches committed through extrajudicial homicide, however, it is well known that there are an equal number of treaties, declarations, commissions, and organizations in place to tackle this issue. There is a legitimate need to set aside the self, the pursuit of power, and bad politics in order to truly adhere to these supporting systems. Laws ought to be founded on unbiased, logical, and objective factors and not on societal biases, sentiments, and personal preferences. As Aristotle once said-
“The law is reason, free from passion”
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