Explanation of Vote on a Third Committee Resolution on Extrajudicial Killings

Ambassador Kelley Currie
U.S. Representative for Economic and Social Affairs
U.S. Mission to the United Nations
New York City
November 20, 2018


We join the sponsors of the text in condemning extrajudicial, summary or arbitrary executions against any persons, irrespective of their 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 killings, including by punishing the perpetrators and investigating suspected cases. Moreover, we strongly support the language condemning extrajudicial, summary, or arbitrary executions that target members of vulnerable groups, including members of the LGBT community and women and girls. We applaud the sponsors’ effort to reflect this support in OP7. Furthermore, we agree that countries that have capital punishment should abide by their international obligations, including those related to fair trial guarantees and use of such punishment for only the most serious crimes. For these reasons we will vote yes on this resolution and ask others to do the same.

The United States does not read this resolution to change the current state of conventional or customary international law, particularly with respect to Articles 2 and 6 of the International Covenant on Civil and Political Rights.

With regard to this resolution’s references to the International Criminal Court, we will address our concerns in a separate U.S. statement.

We fully support the use of less-than-lethal devices when appropriate, and we have federal programs in place to encourage their use. 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 the law enforcement officer. 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.

With respect to the death penalty, as we have said in other contexts, it is up to individual Member States to decide on lawful implementation of the death penalty, and that lawful implementation must be addressed through domestic democratic processes in accordance with an individual state’s obligations under international human rights law. International human rights law establishes clearly that Member States may, within certain parameters, use this form of punishment as confirmed by Article 6 of the International Covenant on Civil and Political Rights, to which the United States is a party. The United States does not endorse the resolutions and reports referenced in OP5, which we believe inaccurately attempt to redefine “most serious crimes” to be limited to intentional killings.

United States law does not recognize the principle of proportionality. Instead, the use of force by law enforcement officers 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 ‎fundamentally 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 that he seeks.

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 during an armed conflict is highly fact-specific. However, international humanitarian law is the lex specialis to 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.