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A summary execution is a variety of execution in which a person is killed on the spot without trial. Summary executions are practiced by police, military, and paramilitary organizations and are associated with guerrilla warfare, terrorism and counterinsurgency.

Contents

Civilian Jurisdiction

In nearly all civilian jurisdictions today, summary execution is theoretically illegal, as it violates the right of the accused to a fair trial before a punishment of death. Almost all constitutions or legal systems based on common law have prohibited execution without the decision and sentence of a competent judge, and the UN's International Covenant on Civil and Political Rights has declared the same:

"Every human being has the inherent right to life. This right shall be protected by law. No man shall be deprived of his life arbitrarily."
"[The Death] penalty can only be carried out pursuant to a final judgment rendered by a competent court" - ICCPR Article 6.1 and 6.2.[1]

In practice, though, extrajudicial killings have been illegally performed by police and domestic forces in various countries and times, sometimes under the guise of martial law, as we see below.

Military Jurisdiction

Under the jurisdiction of military law, summary execution is still illegal in almost all circumstances, as a military tribunal would be the competent judge needed to determine guilt and declare the sentence of death. However, there are certain rare exceptions to this rule in emergencies and warfare where summary execution is legal.

Prisoners of War

Major treaties such as the Geneva Convention and Hague Convention, and customary international law from history, protect the rights of captured regular and irregular members of an enemy's military, along with civilians from enemy states. Prisoners-of-war must be treated in carefully defined ways which definitively ban summary execution, as the Second Additional Protocol of the Geneva Conventions (1977) states:

""No sentence shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality." (Second Protocol of the Geneva Conventions (1977) Art 6.2)

Exceptions to Prisoners of War Status

However, some classes of combatants may not be accorded POW status, though that definition has broadened to cover more classes of combatants over time. In the past, summary execution of pirates, spies and franc-tireurs [2]have been performed and considered legal under existing international law.[3]. Franc-tireurs, a term stemming from the Franco-Prussian War, refer to enemy civilians or militia who continue to fight in territory occupied by a warring party and do not wear military uniforms, and may otherwise be known as guerrillas, partisans, insurgents, etc.

Though these soldiers could be legally jailed or executed by most armies a century ago, the experience of WWII influenced nations occupied by foreign forces to change the law to protect this group. Many of the post-war victors, such as France, Poland, or the USSR, had the experience of resistance fighters being summarily executed by the Nazis if they were captured. The war also influenced them to make sure that commandos and other special forces who were caught deep behind enemy lines would be protected as POW's, rather than summarily executed as Hitler decreed through his 1942 Commando Order.

According to Article 4 of the Third Geneva Convention of 1949, irregular forces are entitled to prisoner of war status provided that they are commanded by a person responsible for his subordinates, have a fixed distinctive sign recognizable at a distance, carry arms openly and conduct their operations in accordance with the laws and customs of war. If they do not do meet all of these, they may be considered "francs-tireurs" (in the original sense of "illegal combatant") and punished as criminals in a military jurisdiction, which may include summary execution.

Soldiers who are wearing uniforms of the opposing army after the start of combat may be considered illegal combatants and subject to summary execution. Many armies have performed this kind of false flag ruse in the past, including both German and US special forces in WWII. However, if soldiers remove their disguises and put on proper insignia before the start of combat in such an operation, they are considered legal combatants and must be treated as prisoners-of-war if captured. This distinction was settled in the post-WWII trial of Otto Skorzeny, who led Operation Greif, an infiltration mission in which German commandos wore US uniforms to infiltrate US lines but removed them before actual combat.

Under Martial Law

Within a state's polity, martial law may be declared in emergencies such as invasions or insurrections, and in such a case constitutionally-protected rights would be suspended. Depending on a state's interpretation of martial law, this may allow police or military forces to decide and carry out punishments that include death on its own citizens, in order to restore lawful authority or for other vital reasons.

Note that this would not include killing a suspect who is directly endangering another's life, which police can always legally do, but rather, executing a suspect under one's control as a punishment. Proving that a summary execution fell under this legal exception would be exceptionally difficult, as one one would have to show why a judgment and sentence of death absolutely needed to be meted out on the spot. Hence, these kinds of extraordinary acts are almost always seen as illegal violations of human rights, as can be seen in the recent protests against summary executions passed under martial law in the Philippines.[4].

Finally, it is theoretically legal for a military to punish its own soldiers with summary executions in an emergency situations that cannot wait for trial by military tribunal. Historically, this may have been reasonable on sailing ships facing a mutiny conspiracy or failed attempt. However, the rarity of such an occurrence in recent years makes it hard to estimate its legality today.

References

  1. ^ International Covenant on Civil and Political Rights (ICCPR - 1966, Article 6.1)
  2. ^ [1]
  3. ^ Law Of The Sea
  4. ^ Protest demands priority for Martial Law victims. Sun Star Davao. May 23, 2009. http://www.sunstar.com.ph/davao/protest-demands-priority-martial-law-victims. Accessed November 27, 2009.

See also








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