Thank You so much for your kind comments. I am glad that you liked my thoughts and stand.

I totally agree that India should join ICC and the reservations which it is offering are not at all convincing. I really hope to see true democratic India which opens itself to the institution.

Many Thanks.
Regards
Garima Tiwari

I greatly enjoyed reading your work on the “ICC”. Although we know that the “ICC” is not part of the United Nations is important that all states of worldwide become members of this organization, and it doesn´t make sense that India has not yet acceded that international tribunal.

We can say that the “ICC”, after democracy is the most important institution in respect of human rights on an individual basis.

Thus, India is a democratic State and we don´t not realize their reserves in integrating “ICC”.

Thank you very much Garima for your contribution for human rights and democracy!

Gil Teixeira
International Tax Law Advisor
Lisbon/Portugal
gil.teixeira.adv@gmail.com
http://www.oa.pt/Servicos/PesqAdvogados/pesquisa_adv.aspx?idc=31897&nome=Gil+teixeira&ordenacao=0
pt.linkedin.com/pub/gil-teixeira/34/53/34

Thank you for your question. I would like to give you an abstract example.

State A engages into an armed border-clash with State B. State C condemns the actions of State A, labels the clash ‘an act of aggression’ with State A being the aggressor. Aggression is a legal term defined in the United Nations General Assembly Resolution 3314. When an action amounts to aggression within the meaning of the aforementioned Resolution it triggers state responsibility since aggression violates certain provision of the Charter of the United Nations. Pursuant to Article 39 of the Charter of the United Nations the only entity empowered to determine the existence of an act of aggression is the Security Council. Therefore, any other determination done by States (State C in this case) or other actors will not bear any legal significance to the international community, will not trigger any responsibility and will be purely of a political rather than legal character.

The same applies to targeted killings with a little exception. As it has been pointed out by P. Alston, the Special Rapporteur on extrajudicial, summary or arbitrary executions, “despite the frequency with which it is invoked, “targeted killing”, as opposed to aggression, for example, “is not a term defined under international law.” Bearing in mind that ‘targeted killing’ is not a legal term and given that there is no common definition of a ‘targeted killing’ one comes to a reasonable conclusion that:

a) there is no entity on the international plane which is solely empowered to characterize an action (-s) as an instance/policy of ‘targeted killing’;
b) ‘targeted killing’ is a descriptive and I would say political notion whose use varies from state to state and from case to case; and
c) defining an action (-s) as an instance/policy of ‘targeted killing’ on its own bears no legal significance whatsoever, whereas its/their legality has to be assessed on a case by case basis within the legal framework that I described above.

Therefore, given the premises and with a view of your example it is either up to the state itself to define the instances you referred to as targeted killings, or it is up to other states or international actors to do that. Since there is no common definition of a ‘targeted killing’ and since such a determination is purely of a political character it might be either done at any time by any state/body regardless of the number of instances described or might not be done at all.
Moreover, the example provided by you raises some concerns. ‘Targeted killing’ is often interchangeably used with other terms, such as ‘extrajudicial execution’, ‘extrajudicial killing’, ‘summary execution’, and ‘assassination’. However, it is worth mentioning that all the latter terms by definition are illegal. ‘Targeted killing’, in turn, might be legal given its compliance with the framework described above and, therefore, should be distinguished from the aforementioned notions.
In order for the killings you described to trigger state responsibility on the international plane the actions of the members of the police force must be ascribed to the state and must constitute a violation of the victim’s right to life under applicable human rights provisions (assuming that in your example there is no armed conflict going on).
Articles on Responsibility of States for Internationally Wrongful Acts declare that the conduct of a private actor is considered an act of a state either if the state acknowledges and adopts the act as its own, or if that actor is acting on the instructions of, or under the direction or control of that state. Thus, there has to be a sufficient link established in order to transform the acts of private actors into the acts of de facto state agents. In the Nicaragua case, the ICJ formulated the ‘effective control’ test for determining the link between the states and private actors. The ICJ took the view that for a conduct to give rise to legal personality of a State it would have to be proved that that State had effective control of the actions in the course of which the alleged violations were committed. As for the legality of a targeted killing under applicable human rights provisions, please, see the framework described above.

I hope that this answer will provide an insight into the matter. Please, do not hesitate to contact me for any further clarification. For more detailed information, please, see:

1. U.N. Human Rights Council, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Addendum: Study on Targeted Killings, U.N. Doc. A/HRC/14/24/Add.6, May 28, 2010 (prepared by Philip Alston) ;
2. Philip Alston, The CIA and Targeted Killings Beyond Borders, 2 Harv. Nat’l Sec. J. 283 (2011) .

1.) forcibly
2.) by means of deception;
3.) while the female is asleep or unconscious; or
4.) under circumstances in which the female is not competent to give consent (e.g., she is drugged, mentally disabled, or underage).

Rape is a general-intent offense. As such, a defendant is guilty of rape if he possessed a morally blameworthy state of mind regarding the female’s lack of consent.

[B] Traditional Statutory Law – Traditional rape statutes define the offense as sexual intercourse achieved “forcibly,” “against the will” of the female, or “without her consent.” Like the common law, such statutes are gender-specific, i.e., only males are legally capable of perpetrating the offense, and only females can legally be victims of the crime.

[C] Modern Statutory Law – Many states now extend the law to specified forms of non-forcible, but nonconsensual, sexual intercourse, e.g., sexual intercourse by a male with an unconscious or drugged female. Increasingly, rape is now defined in gender-neutral terms regarding both the perpetrator and the victim. In the most reformed statutes, the offense has been broadened to include all forms of sexual penetration; the name of the crime has been changed (e.g., “criminal sexual conduct” or “sexual assault”) and the offense is divided into degrees.

[D] Model Penal Code – A male is guilty of rape if, acting purposely, knowingly, or recklessly regarding each of the material elements of the offense, he has sexual intercourse with a female under any of the following circumstances:

1.) the female is less than 10 years of age;
2.) the female is unconscious;
3.) he compels the female to submit by force or by threatening her or another person with imminent death, grievous bodily harm, extreme pain or kidnapping; or
4.) he administers or employs drugs or intoxicants in a manner that substantially impairs the female’s ability to appraise or control her conduct. [MPC § 213.1(1)]

§ 25.02 “Forcible”

The traditional common law rule requires proof that both the female did not consent to the intercourse and that the sexual act was “by force” or “against her will” (“resistance” requirement). Generally speaking, nonconsensual intercourse is “forcible” if the male uses or threatens to use force likely to cause serious bodily harm to the female or, possibly, a third person. Intercourse secured by a non-physical threat does not constitute forcible rape at common law.

A minority of jurisdictions by statute or common law interpretation have abolished the resistance requirement. Where state have retained the resistance requirement, the trend is to reduce the significance of the rule by lowering the barrier, typically requiring only that the alleged victim asserted a degree of resistance that was reasonable under the circumstances or that was sufficient to indicate that the sexual intercourse was without consent.

An extreme minority approach, applied at least in New Jersey, is that a male can be convicted for forcible rape based solely on the lack of permission for the sexual intercourse. [State in the Interest of M.T.S., 609 A.2d 1266 (1992)]

The Model Penal Code defines rape solely in terms of the male’s acts of aggression and does not require proof of resistance by the victim.

§ 25.03 Marital Immunity Rule

At common law, a husband could not be guilty of raping his wife. The majority of states retain a partial exemption under which immunity does not apply if the parties are legally separated or are living apart at the time of the rape.

A minority of states maintain a total exemption for marital rape, while at least twelve states have abolished the rule.

The Model Penal Code recognizes a partial marital exemption that bars a rape prosecution against a spouse or persons “living as man and wife,” although they are not formally married. More stringent than the majority exemption, the only exception to the marital immunity rule is for spouses living apart under a formal decree of separation. [MPC § 213.6(2)]

§ 25.04 Evidentiary Issues at Rape Trials

[A] Corroboration Rule – At common law, the testimony of the alleged rape victim did not need to be corroborated in order to convict for rape. However, a minority of states, by statute or case law, have instituted a corroboration requirement.

The Model Penal Code imposes a corroboration requirement. [MPC § 213.6(5)]

[B] Rape-Shield Statutes – If the defendant contends that the female consented to sexual intercourse with him on the occasion of the alleged rape, evidence of prior consensual sexual acts between the accused and the victim is admissible. However, today, most states bar evidence of the alleged victim’s prior consensual sexual activity with persons other than the accused and her reputation for lack of chastity under the so-called “rape-shield” laws.

The Model Penal Code is silent regarding the admissibility of evidence of the alleged victim’s sexual history or reputation for chastity.

[C] Rape Trauma Syndrome – Rape Trauma Syndrome (RTS) is a set of acute and long-term symptoms resulting from a rape or attempted rape. In the acute phase, a rape victim is as apt to appear calm and subdued immediately after an attack as she is to manifest fear, anger, or anxiety. Many woman in the acute phase also experience physical symptoms, such as tension headaches, fatigue, and disturbed sleep patterns. In the long-term phase, many rape victims develop phobias related to the circumstances of the rape.

There is a split of authority regarding the scientific reliability and, therefore, admissibility of RTS evidence. Jurisdictions that permit RTS expert testimony often admit it only for limited purposes, e.g., to explain the fact that the alleged victim appeared calm immediately after the rape if such conduct would likely be viewed by jurors as inconsistent with a claim of rape. Generally, however, RTS may not be introduced as proof of the commission of the rape itself.

The Model Penal Code is silent regarding the admissibility of evidence of RTS.

§ 25.05 Other Sex Crimes

[A] Statutory Rape – Today, “statutory rape” remains an offense in most states. Many states apply a two-level approach to this offense: sexual intercourse with a very young girl (e.g., twelve years of age or younger) remains punishable at the level of forcible rape; intercourse with an older girl (especially if the male is older than the female by a specified number of years) is a felony of a lesser degree.

The Model Penal Code does not recognize any strict liability crimes, and thus does not recognize statutory rape, although it does punish sexual intercourse by a man with a female less than 10 years of age if he knew or should have known the female’s age.

[B] Gross Sexual Imposition – Unlike the common law, the Model Penal Code does not provide for rape on the basis of fraud. However, such conduct does constitute the offense of gross sexual imposition. Subject to the marital immunity exemption, a male is guilty of gross sexual imposition if he has sexual intercourse with a female in any one of three circumstances:

1.) the female submits as the result of a “threat that would prevent resistance by a woman of ordinary resolution,” e.g., if the woman is threatened by a supervisor with loss of employment. [MPC § 213.1(2)(a)]
2.) a male has sexual relations with a female with knowledge that, as the result of mental illness or defect, she is unable to appraise the nature of his conduct. [MPC § 213.1(2)(b)]
3.) a male knows that the female is unaware that a sexual act is being committed upon her or that she submits because she mistakenly believes that he is her husband. [MPC § 213.1(2)(c)]