Explanation of Position on a Resolution on Extrajudicial Killings

Courtney R. Nemroff
Acting U.S. Representative to the Economic and Social Council
U.S. Mission to the United Nations
New York, New York
November 19, 2020


Thank you, Chair. We’d like to thank the delegation of Sweden for their constructive and transparent approach throughout the negotiations.

We join the sponsors of the text in condemning extrajudicial, summary, or arbitrary executions against any persons, irrespective of their background or status. We continue to stress that all states have obligations to protect human rights and fundamental freedoms. As such, we agree that all states should take effective action to combat all extrajudicial, summary, or arbitrary executions, including fully and transparently investigating suspected cases and by prosecuting and punishing the perpetrators in accordance with the law.

We also strongly support the existing language on civil society and human rights defenders and further welcome the new additions this year on democracy, civil society, and protection of journalists and media workers. Moreover, we strongly support the language condemning extrajudicial, summary, or arbitrary executions that target members of marginalized or vulnerable groups, including members of the LGBTI community and human rights defenders. We applaud the sponsors’ ongoing effort to reflect this support in OP7 for over a decade.

Furthermore, we agree that countries that have capital punishment must abide by their international obligations, including those related to fair trial guarantees and use of such punishment for only the most serious crimes, as outlined in the International Covenant on Civil and Political Rights (ICCPR). The United States’ understanding of this resolution is that it is not an effort to reflect or change the current state of customary law or to interpret treaty law, in particular Articles 2 and 6 of the ICCPR.

With regard to this resolution’s references to the International Criminal Court, we have addressed our concerns separately, including in a U.S. statement on November 13, 2020. As was done during Third Committee this year, the United States has consistently voted against the Resolution on the Moratorium on the Use of the Death Penalty, and we refer you to our Explanation of Vote on that resolution.

The United States fully supports the use of less-than-lethal devices when appropriate, and we have federal programs in place to encourage their use under appropriate circumstances. Many subnational law enforcement agencies also employ them. However, we cannot agree that the use of less-than-lethal devices may decrease the need to use any kind of weapon in all circumstances. In some situations, the use of less-than-lethal devices can increase the risk of injury or death to law enforcement officers. We support a balanced approach that recognizes that situations are fact-specific and that some situations may not be appropriate for less-than-lethal devices.

The use of force by law enforcement officers in peacetime in the United States is governed by the “objective reasonableness” standard set forth by the U.S. Supreme Court.

Additionally, we note that use of the terms “conform” and “to ensure” suggest, incorrectly, that Member States have undertaken obligations to apply the Mandela Rules, the Code of Conduct for Law Enforcement Officials, and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, which are non-binding.

While we reaffirm our belief that country visits are an important human rights tool, U.S. federal and state prison officials cannot in all contexts grant to the Special Rapporteur the kind of access being sought.

While this resolution covers a variety of situations in which extrajudicial, summary, or arbitrary executions occur, we do not want to lose sight of the fact that there are not one, but two, bodies of international law that regulate unlawful killings of individuals by governments – international human rights law and international humanitarian law. As the resolution notes, these two bodies of law are complementary and mutually reinforcing, and set forth two legal frameworks on this issue. We also recognize that determining which international law rules apply to any particular government action can be highly fact-specific. However, international humanitarian law is the lex specialis during situations of armed conflict and, as such, is the controlling body of law with regard to the conduct of hostilities and the protection of war victims; and we read this text on that basis.

Thank you, chair.