Summary executions

United States of America: Killing of Civilians following Air Strikes in Afghanistan

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United States of America: Killing of Civilians following Air Strikes in Afghanistan
Violation alleged: Violations of the right to life during armed conflict
Subject(s) of appeal: Over 78 persons
Character of reply: No response
Observations of the Special Rapporteur
The Special Rapporteur regrets that the Government of the United States has failed to cooperate with the mandate that he has been given by the General Assembly and the Human Rights Council.
Allegation letter dated 28 June 2007
I am writing concerning information I have received about a series of recent incidents in which civilians are reported to have been killed in Afghanistan in the course of United States air strikes. According to information I have received:
On 18 June, 2007 seven children were killed in a US led Coalition air strike in Zarghun Shah, Paktika Province, Afghanistan. It was reported that the children were students at a madrassa situated in the targeted compound which also included a mosque. Reported Coalition statements include that “Coalition Forces confirmed the presence of nefarious activity occurring at the site before getting approval to conduct an air strike on the location” and later that the Coalition did not believe any children were in or around the compound during the day.
According to information I have received: 21 civilians were killed by US led forces in an air strike on 9 May, 2007 in Sangin District, Helmand Province. It is my understanding that US led forces were ambushed by Taleban forces on 8 May, 2007 25km north of Sangin town killing one soldier and in response, air strikes were made on three villages killing a number of persons. It was reported that a US military spokesperson Major William Mitchell confirmed military operations in the area, but denied that he had received reports of civilian casualties.

According to information I have received, over fifty civilians were killed during the week beginning 30 April, 2007 in Shindand district, Herat Province in the course of land and air strikes conducted by US led forces. My understanding is that whilst UN and Afghan police reported the above civilian deaths, US led forces reported that they had killed 136 combatants and were unaware of any civilian deaths.

Without in any way wishing to pre-judge the accuracy of the information received, it is my responsibility under the mandate provided to me by the Commission on Human Rights and extended by the Human Rights Council, to seek to clarify cases brought to my attention. Since I am expected to report on this case to the Human Rights Council, I would be grateful for your cooperation and your observations on the following matters:
1. Is the information according to which United States led forces killed 78 civilians in Afghanistan in the above three specified incidents accurate ?
2. Does your Excellency’s Government intend to provide compensation to the families of the civilians killed above? If so, what steps have been taken in this direction?
3 Kindly provide a copy of the investigation(s) carried out into the above incidents. I am particularly interested in information related to two issues. First, how was it determined whether each decision to resort to lethal force complied with the applicable international law? Second, how was it determined whether the persons killed were civilians or combatants?
4. Kindly provide details of any disciplinary action or criminal proceedings against those soldiers found to be responsible.
United States of America: Death in Custody of Ahmed Ali Abdullah, a.k.a. Salah Addin Ali Ahmed Al-Salami
Violation alleged: Death in custody
Subject(s) of appeal: 1 male
Character of reply: No response
Observations of the Special Rapporteur
The Special Rapporteur regrets that the Government of the United States has failed to cooperate with the mandate that he has been given by the General Assembly and the Human Rights Council.
Allegation letter dated 28 June 2007
I would like to bring the attention of your Excellency’s Government information I have received regarding the death in custody of Mr Ahmed Ali Abdullah, named Salah Addin Ali Ahmed Al-Salami in other reports, at the Guantánamo Bay detention facility on 10 June 2006.
According to the information I have received:
Mr. Abdullah was a citizen of Yemen detained at the Guantánamo Bay detention camp since 2002. He died there on 10 June 2006, on the same day as two other detainees of Saudi citizenship, Messrs. Yassir Talal Az-Zahrani and Mani’ Shaman Al-Utaybi. Your Excellency’s Government explained that the three men had committed suicide by hanging themselves in their cells. A medical team directed by Dr. Craig T. Mallak, Armed Forces Medical Examiner, carried out an autopsy. A few days after the incident, the bodies of the three men were transported back to their respective home countries.
Refusing to accept your Government’s statement that Mr. Abdullah had committed suicide, his family asked a Geneva-based non governmental organisation, Alkarama for Human Rights, to assist with organising an autopsy. Alkarama gave a mandate to this effect to a medical team headed by Prof. Patrice Mangin, director of the Institut de Médecine légale of Lausanne University in Switzerland. This autopsy was carried out at the military hospital of Sanaa and was followed by further laboratory analysis at the Institut in Lausanne on samples taken from Mr. Abdullah’s body.
By letter to Dr. Mallak, the Armed Forces Medical Examiner, dated 29 June 2006 and sent to the US Embassy in Bern with a request to forward it to the addressee, Alkarama expresses the wish “to put you [Dr. Mallak] in touch with the Lausanne medical team which needs some documents, materials and explanations from your side in order for them to formalize their report of autopsy”. The letter then sets forth some specific requests, in particular a copy of the autopsy report of the US Armed Forces Medical Examiner and a copy of the report of the investigation carried out by the authorities of the detention facility into the death, including information on the circumstances of the discovery of the deceased, on the ligatures he used to hang himself, on reanimation attempts, on the reasons all the finger and toe nails were cut, on his psychological state in the days preceding his death, as well as on previous suicide attempts by Mr. Abdullah. Neither your Excellency’s Government nor Dr. Mallak ever replied to this request.
On 20 July 2006, Prof. Mangin transmitted his team’s autopsy report to Alkarama. The conclusions of the report, insofar as relevant to the present letter, are:

  1. That Mr. Abdullah’s death was most probably caused by asphyxiation through violence against the neck due to hanging, although other dynamics could not be formally excluded;

  2. That it should be possible to explain the traces of puncture/injection with bleeding into the skin and the dental trauma found on the body as consequences of attempts to reanimate Mr. Abdullah. If that was not the case, they would constitute elements of suspicion with regard to the cause of death;

  3. That at the current state of the medical team’s investigation (and subject to (2) above), the findings are not incompatible with suicide by hanging.

As your Excellency’s Government will know, the family of Mr. Abdullah and others have raised doubts as to whether he really did commit suicide. In support of their doubts they argue that:

  1. according to co-detainees, Mr. Abdullah (as well as Messrs. Yassir Talal Az-Zahrani and Mani’ Shaman Al-Utaybi) was in good spirits in the days preceding his death;

  2. as a person known to follow strictly the precepts of Islam, he would never have committed suicide;

  3. the tight surveillance of the cells, with permanent video-surveillance and guards passing in front of each cell every two to five minutes, would make a suicide by hanging impossible in the absence of collusion by the guards; and

  4. it is materially impossible for a detainee to hang himself in the cell, as there is (again according to reports of other former detainees) absolutely no place a detainee could fix the ligature used to hang himself.

The suspicions harboured by Mr. Abdullah’s family have been reinforced by the reported refusal of your Excellency’s Government to share the results of its investigation into the death with a US-based law firm retained by them or with any of the other entities who have requested information (including Prof. Mangin and a renowned US-based non-governmental organisation).

Notwithstanding these arguments, I do not at present have reason to doubt your Government’s assertion that Mr. Abdullah’s death was due to suicide. I would like, however, to draw your Government’s attention to a fundamental principle applicable under international law to this case: When the State detains an individual, it is held to a heightened level of diligence in protecting that individual’s rights. As a consequence, when an individual dies in State custody, there is a presumption of State responsibility. In this respect, I would like to recall the conclusion of the Human Rights Committee in a custodial death case (Dermit Barbato v. Uruguay, communication no. 84/1981 (21/10/1982), paragraphe 9.2):
“While the Committee cannot arrive at a definite conclusion as to whether Hugo Dermit committed suicide, was driven to suicide or was killed by others while in custody; yet, the inescapable conclusion is that in all the circumstances the Uruguayan authorities either by act or by omission were responsible for not taking adequate measures to protect his life, as required by article 6 (1) of the Covenant.”
In order to overcome the presumption of State responsibility for a death in custody, there must be a “thorough, prompt and impartial investigation of all suspected cases of extra-legal, arbitrary and summary executions, including cases where complaints by relatives or other reliable reports suggest unnatural death in the above circumstances” (Principle 9 of the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions). This principle was reiterated by the 61st Commission on Human Rights in Resolution 2005/34 on “Extrajudicial, summary or arbitrary executions” (OP 4), stating that all States have “the obligation … to conduct exhaustive and impartial investigations into all suspected cases of extrajudicial, summary or arbitrary executions”. I would like to add that even the most “thorough, prompt and impartial investigation” of a custodial death will not satisfy your Excellency’s Government’s obligations under international law if its results are not shared with the family of the victim and subjected to public scrutiny.
I therefore urge your Excellency’s Government to respond positively and exhaustively to the requests for information and copies of reports or other documents regarding your Government’s investigation into the death of Mr. Abdullah, particularly so when these requests are made by persons acting with due authorization on behalf of his family.
It is my responsibility under the mandate provided to me by the Commission on Human Rights, extended by the Human Rights Council and reinforced by the appropriate resolutions of the General Assembly to seek to clarify all cases brought to my attention. Since I am expected to report on this case to the Human Rights Council, I would be grateful if you could also share with me copies of all the clarification and documents you will provide to Mr. Abdullah’s family through their US lawyers (Dickstein Shapiro LLP), Prof. Mangin or Alkarama.
United States of America: Death Sentence of Troy A. Davis
Violation alleged: Non-respect of international standards relating to the imposition of capital punishment
Subject(s) of appeal: 1 male
Character of reply: No response
Observations of the Special Rapporteur

The Special Rapporteur regrets that the Government of the United States has failed to cooperate with the mandate that he has been given by the General Assembly and the Human Rights Council.

Urgent appeal dated 16 July 2007

I am writing concerning Troy a. Davis who has been sentenced to death and is reportedly scheduled to be executed on 17 July, 2007. Mr Davis was sentenced to death in 1991 for the August 1989 killing of Mark Allen McPhail a security officer (and off duty police officer) in Savannah, Georgia. It is my understanding that the case against Mr Davis consisted entirely of witness testimony.

According to information I have received:
Seven out of nine non-police witnesses have recanted or changed their testimony subsequent to the conviction. Several of the witnesses who recanted referred in affidavits to coercive police investigative techniques which they claim forced them to implicate and testify against Mr Davis. In September 2006, however, the US Court of Appeals for the 11th Circuit upheld a ruling by a Federal Judge who had denied a hearing to present post-conviction evidence. On 25 June 2007 the US Supreme Court refused to intervene.
According to information I have received trial counsel failed to conduct an adequate investigation of the state’s evidence, including allegations that some witnesses had been coerced by the police, or had been prevented from presenting full and effective witness testimony of their own. Mr Davis has had at least five different lawyers over the years, one of whom was reportedly disbarred, and another of whom failed to communicate with his client or the client’s family. In 1995 the US Congress eliminated federal funding for the post-conviction defender organizations (PCDOs) which it had established in 1988 to provide legal assistance to indigent death row prisoners. One such PCDO, the Georgia Resource Center, which was representing Mr Davis, had its budget reduced by two thirds and the number of lawyers on its staff reduced from eight to two. A lawyer working on Troy Davis’ case stated in an affidavit that "I desperately tried to represent Mr Davis during this period, but the lack of adequate resources and the numerous intervening crises made that impossible… We were simply trying to avert total disaster rather than provide any kind of active or effective representation".
Although the death penalty is not prohibited under international law, I would like to remind your Excellency’s Government that it must be regarded as an extreme exception to the fundamental right to life, and must as such be interpreted in the most restrictive manner. It is crucial that all restrictions and fair trial standards pertaining to capital punishment contained in international human rights law are fully respected in proceedings relating to capital offences. The death penalty may only be imposed when the guilt of the person charged is based upon clear and convincing evidence leaving no room for an alternative explanation of the facts, according to the Safeguards Guaranteeing Protection of the Rights of those Facing the Death Penalty.
When an accused is represented by assigned counsel, the authorities must ensure that the lawyer assigned has the experience and competence commensurate with the nature of the offence of which their client is accused, Principle 6 of the Basic Principles on the Role of Lawyers. The authorities have a special duty to take measures to ensure that the accused is effectively represented (Kelly v. Jamaica (253/1987), 8 April 1991, Report of the HRC, (A/46/40), 1991, at 248, para. 5.10). If the appointed counsel is not effective, the authorities must ensure that counsel performs their duties or is replaced (Artico Case, 13 May 1980, 37 Ser. A 16.]. The Human Rights Committee noted concerns about "the lack of effective measures in the United States to ensure that indigent defendants in serious criminal proceedings, particularly in state courts, are represented by competent counsel".(Comments of the HRC: USA, UN Doc. CCPR/C/79/Add.50, 7 April 1995, para.23). In his 1998 report on the USA, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions expressed concern that "the absence of PCDOs creates a grave difficulty for defendants at the post-conviction level", (E/CN.4/198/68/Add.3, para. 99). In the present case there are grounds for concern that poor legal representation afforded to Mr Davis since 1989 has denied him both the right to a fair trial and the right to effectively appeal against conviction and the death sentence.

Article 14(5) ICCPR provides “Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law." This requires that a review by a higher court must be a genuine review of the issues in the case. In the context of Mr Davis’ case the refusal by the courts to grant a rehearing when presented with significant new evidence which casts doubt on the initial conviction, appears to amount to a denial of the right to a genuine review as required.

In light of these serious and pressing concerns, based upon human rights norms recognized by the international community, I would respectfully request Your Excellency’s Government to take all necessary steps to avoid executions that would be inconsistent with accepted standards of international human rights law. I urge your Excellency’s Government to put Mr Davis execution on hold in light of the above facts with a view to commuting his death sentence.

In closing I wish to emphasize two points. The first is that, despite receiving a significant number of complaints in relation to the carrying out of the death sentence in the United States, I have only rarely acted on these complaints. In this instance I firmly believe that the case merits this urgent appeal and warrants immediate action on the part of the U.S. Government. The second is that I take no position either for or against the death penalty but act only when it seems clear that the risk of injustice is such that internationally accepted standards will be violated in the absence of urgent intervention by the Government.

Uzbekistan: Death Sentence of Ismatillo Abasov
Violation alleged: Non-respect of international standards relating to the imposition of capital punishment

Subject(s) of appeal: 1 male
Character of reply: Largely satisfactory response
Observations of the Special Rapporteur
The Special Rapporteur notes the information provided by the Government of Uzbekistan in relation to the death sentence of Ismatillo Abasov. The SR remains concerned that Ismatillo Abasov has been sentenced to death despite the apparent absence of an effective investigation into allegations that his confessions were extracted with torture.
Urgent appeal dated 23 January 2006 sent with the Special Rapporteur on the question of torture
We would like to bring to the attention of your Excellency’s Government the situation of Mr. Ismatillo Abasov, who appears to be at risk of imminent execution.

According to the information received:

Mr. Ismatillo Abasov was sentenced to death by the Tashkent City court on 31 January 2005 for "premeditated, aggravated murder". Mr. Abasov has exhausted all judicial remedies. Reportedly, his conviction and sentence are based on confessions extorted under torture or other forms of ill-treatment.

Mr. Abasov has submitted a communication to the Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political rights (ICCPR). The Committee has requested your Excellency’s Government not to execute Mr. Abasov while his case is under consideration by the Committee.

While we are fully aware of the serious nature of the crime Mr. Abasov has been found guilty of, we respectfully remind your Excellency’s that “in capital punishment cases, the obligation of States parties to observe rigorously all the guarantees for a fair trial set out in Article 14 of the International Covenant on Civil and Political Rights admits no exception admits” (Little v. Jamaica, communication no. 283/1988, Views of the Human Rights Committee of 19 November 1991, para. 10). Relevant to the cases at issue, these guarantees include the right not to be compelled to confess guilt.
We also recall that Commission on Human rights resolution 2005/39 urges States to ensure that any statement, which is established to have been made as a result of torture, shall not be invoked in any proceedings. This principle is an essential aspect of the right to physical and mental integrity set forth, inter alia, in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the Declaration on the Protection of all Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
We urge your Excellency’s Government to take all necessary measures to guarantee that the rights under international law of Mr. Abasov are respected. Considering the irremediable nature of capital punishment, this can only mean suspension of the death sentence against Mr. Abasov until the allegation of torture have been thoroughly investigated and all doubts in this respect dispelled. Finally, international law requires that the accountability of any person guilty of subjecting Mr. Abasov to torture is ensured.
It is our responsibility under the mandates provided to us by the Commission on Human Rights and reinforced by the appropriate resolutions of the General Assembly, to seek to clarify all cases brought to our attention. Since we are expected to report on these cases to the Commission, we would be grateful for your cooperation and your observations on the following matters:
1. Are the facts alleged in the above summaries of this case accurate?
2. Please provide the details, and where available the results, of any investigation, medical examinations and judicial or other inquiries carried out in relation to the allegations that Ismatillo Abasov was subjected to torture while in pre-trial detention. If no inquiries have taken place or if they have been inconclusive, please explain why.
3. Please provide the full details of any prosecutions which have been undertaken with regard to the alleged torture of Ismatillo Abasov. Have penal, disciplinary or administrative sanctions been imposed on the perpetrators?
Response from the Government of Uzbekistan dated 26 January 2007
Abasov Ismatillo Asadullaevich, born 1959, two previous convictions, was found guilty by Tashkent city court on 31 January 2005 of offences under articles 97, part 2, paragraphs (i), (p) and (q) (Premeditated killing), 248, part 2 (Unlawful possession of weapons, ammunition, explosive substances or explosive devices) and 59 (Sentencing for multiple offences) of the Criminal Code of Uzbekistan.
On 12 April 2005, the appeals chamber of Tashkent city criminal court modified the Tashkent city court ruling of 31 January 2005, deleting the reference to article 97, part 2, paragraph (q), while the remainder of the judgement was left unchanged.
By decision of the court Abasov I. was found guilty of the following offences.
For the purpose of obtaining the sum of 5,000 United States dollars by force from Shapiro I., Abasov I. entered into a criminal conspiracy with Dzhumaev N. and Radzhapov A. In order to carry out their criminal plan, following the instructions of the criminal group’s leader, Dzhumaev N., Abasov I. and Radzhapov A. carried out surveillance of Shapiro I. from 16 to 24 August 2004.
On 24 August 2004, after arming himself with a Nagan pistol and two RGD 5 grenades, Abasov I. attacked Shapiro I. as he was reaching his home and carried out a premeditated killing. The criminal was caught by militia officers as he was trying to leave the scene of the crime. The Nagan pistol and the RGD-5 grenades were taken away as material evidence.

The following assertions by the author of the letter cannot be accepted:

- That the court failed to confirm that Abasov I. committed the offence as part of a criminal group;
- That militia officers exerted physical and psychological pressure on the accused;
- That Abasov I. was unjustifiably charged under article 97, part 2, paragraph (i) of the Criminal Code.
Aside from the defendant’s own confessions, his guilt is also confirmed by the testimony of Akhmedov S., Yuldashev B., Turgunov M., Ruzmetov E., Tursunkhodzhaev K., Fetisov A., Bakhramov K. and the aggrieved party Oleinikov V., the findings of the forensic medical, ballistic and psychiatric experts, the records of checks of the scene of the crime and of the material evidence removed, records of identification and other case materials.
On 26 October 2004 the Tashkent procurator’s office declared the members of the criminal group Dzhumaev N. and Radzhapov A. wanted by the police as their whereabouts had not been ascertained. Currently the law enforcement agencies are working to determine the whereabouts of these persons and bring them to justice.
The case materials do not contain any evidence that the accused were subjected to any forms of unlawful treatment before or during the investigation. All the procedural measures were taken in accordance with the provisions of legislation concerning criminal procedure. All the lawful rights of the accused were assured, and specifically the services of a lawyer. Before and during questioning as part of the investigation, in the presence of his lawyer, he confirmed that he had given evidence of his own free will without any coercion on the part of the investigators. During court proceedings Abasov I. made no mention of the use of unlawful methods against him.
Since the close relatives of the victim - his wife Shapiro T. and his son Shapiro R. - are living in Almaty, Kazakhstan, the procurator’s office decided with their consent to grant the status of aggrieved party in the case to Oleinikov V.
As can be seen from the above, the investigations and judicial proceedings were conducted strictly in accordance with the applicable legislation. Abasov I.’s criminal acts were correctly evaluated by the court.

Despite two previous convictions, Abasov I. did not draw the appropriate conclusions and continued to pursue a lifestyle which posed a major danger to society. The court, judging the re-education of Abasov I. impossible, and taking into account the absolute danger his personality posed to society, decided to impose the supreme punishment - the death penalty.

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