The genesis of the TVPA shows that the authors did not necessarily intend that the deliberate standard require a scientist who goes beyond planning a measure and deviates from a standard of adequacy in terms of assessment if the murder was extrajudicial. The genesis mentions only once recommended mentions. It states that “the inclusion of the word `intentionally` is also sufficient to exclude killings that do not have the necessary extrajudicial intent, such as those caused by the authorized use of lethal force by a police officer.” [35] The authors did not specify what they meant by “necessary extrajudicial intent” and what definition of intentional intent “would be sufficient to exclude killings that do not have the necessary extrajudicial intent.” The only clarification is the example of the perpetrators of the authorized use of lethal force by a police officer. [15] See In re Agent Orange, 373 f. Supp. 2d-112 (concluding that “herbicide use” was not extrajudicial death because herbicides were not “used to intentionally inflict pain and suffering”); Arias, 517 F. Supp. 2d at 226 (“shifted in the wind” with fumigants and drifted towards Ecuador, which is not an intentional killing). A dual intent would require the defendant to intend to commit the act that killed or injured the plaintiffs and “seeks to cause the consequences of his act, or … believes that the consequences are essentially certain that they will result. [22] This standard would only prevent negligent shooting if the accused had believed that someone`s murder was not “substantially safe.” For example, the Restatement of Torts uses the illustration in which “A throws a bomb into B`s office to kill B.
A knows that C, B`s stenographer, is in the office. A has no desire to hurt C, but knows that his act is essentially certain. C is injured by the explosion. A is liable to C for intentional offence. [23] According to this standard, security forces would be held responsible for the “accidental” shooting in Mamani if they knew that firing a gun would essentially cause a person`s death. Moreover, this standard would not preclude a shooting in which the accused fired with the intention of injuring the victim, not killing him. [24] Deliberate could be interpreted in accordance with this standard – the respondent had planned the action and planned the damage or ignored that the damage was essentially certain. The accused would not have had to deliberate for a long period of time – a single second to plan to attack and shoot a person would be enough to meet this standard. Many of the treaties, martial law and some of the Special Rapporteur`s statements discussed above were already in force at the time of the adoption of the TVPA. This suggests that at this stage in the development of the customary international definition of extrajudicial intent, it was probably a norm of negligence. Although some of these sources of customary international law were established after the adoption of the law, the reference to customary international law should not only include customary international law as it existed at the time of the adoption of the law. When the authors of the TVPA proposed to “fulfill the obligations of the United States”[55], they did not cite any “current obligations”. The authors were probably aware of the possibility that future contracts could be signed.
The current and previous scientific requirement for extrajudicial executions under international law is negligence and would include accidental shootings. As discussed below, the implementation of this standard of negligence would also be in line with the draftsman`s intention to exclude murders `caused by the authorised use of lethal force by a police officer`. Therefore, a standard of negligence for intent is consistent with both international legal standards and the purpose of the authors. States have a legal obligation to protect the right to life. These crimes must be investigated and the perpetrators prosecuted. In practice, however, they often go unpunished. Policymakers should determine which actor is most likely to avoid harm, not just which actor has the lowest cost to avoid harm. In out-of-court murders, the accused is necessarily an agent of the government behind whom all the resources and power of the government lie. They have the resources of the government to plan appropriately and reasonably.
They also have the resources of the government to execute the processes as needed. The victim is a citizen. In Mamani, the victims are Bolivia`s most marginalized and poorest citizens, although this may not be the case for all extrajudicial killings. Even if the cost of the citizen, in order not to be killed, was slightly lower than the cost of the government to avoid shootings, the government is often more able to bear higher costs than a citizen. In criminal law, the standards of intent and evidence are higher because the government is the plaintiff and the justice system is concerned that the power of the government is manifestly disproportionate to the power of the individual as a defendant. In the case of criminal acts in which the government is the defendant, the same principle regarding the power of the government should be applied. Therefore, the standard of intent should be lower, as the judicial system should be aware that the power of the respondent government to avoid harm is manifestly disproportionate to the power of the individual. A standard of negligence for intent also distributes costs more equitably. If the standard requires intent to harm the person, if there was no intent to harm the victim, it absorbs the full cost of the shooting. However, in many cases, the victim cannot avoid being shot, for example, a pregnant woman sitting on the sofa of her house. They would have to bear huge costs not to be slaughtered (for example. B flee the country), or they would have to bear the costs incurred by the shooting.
The cost of prevention for the shooter is much lower. Taking reasonable steps to avoid unnecessary deaths will put the shooter to the test. They could take longer to quell the protest, and perhaps more soldiers would have been killed. However, both have the ability to take these reasonable steps, and avoidance is almost certainly less stressful for them than for the victim. You can choose not to shoot or avoid shooting if there is a significant risk of injuring innocent people. Since the tort law allocates the cost of harm among individuals, the law should use a standard that always places the cost of shooting on the shooter, as the shooter incurs fewer costs to avoid unnecessary murder. This should be the case whether the accused kills the victim intentionally or negligently. While the cost of avoiding negligent homicide is higher than the cost of avoiding intentional homicide, the cost to the shooter is still lower than the cost to the victim. [43] International Covenant on Civil and Political Rights (Article 6); Charter of Human and Peoples` Rights (Article 4); African Charter on the Rights and Welfare of the Child (Article 5); Protocol to the African Charter on Human and Peoples` Rights on the Rights of Women in Africa (Article 4); Arab Charter on Human Rights (Articles 5, 6); European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 2); American Declaration of the Rights and Duties of Man (Article 1); American Convention on Human Rights (Article 4); Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women “Convention of Belém do Pará” (Article 4). Although the United States has not ratified all of these treaties, it can still shed light on the definition of activities that customary international law would consider extrajudicial executions. Regional human rights courts have also established responsibility for extrajudicial executions on the basis of a standard of negligence.
In Gul v. In Turkey, a policeman fired several times through a closed door. The European Court of Human Rights found the police officer guilty of extrajudicial execution, noting that it was not necessary to determine “whether the police formulated the intention to kill or acted with reckless disregard for the life of the person behind the door. [The court] does not perform the functions of a criminal court with regard to the attribution of the degree of individual fault. He is convinced that the police used disproportionate force in the circumstances. [48] The situation is similar in “Caracazo” v. . .
