A/HRC/41/CRP.1
345. One evident implication of the obligation to protect against actions by other States is
that its implementation is likely to involve Intelligence agencies whose mandates includes
monitoring foreign States within and outside national territories.
346. The responsibility of Intelligence agencies to protect the right to life also stems from
the well-recognized principle according to which State’s obligation to protect applies to all
Governmental institutions:
“The duty to protect by law the right to life also requires States parties to
organize all State organs and governance structures through which public
authority is exercised in a manner consistent with the need to respect and
ensure the right to life, [52] including establishing by law adequate institutions
and procedures for preventing deprivation of life, investigating and
prosecuting potential cases of unlawful deprivation of life, meting out
punishment and providing full reparation.”286
347. The duty to protect demands that States be particularly aware of the vulnerabilities of
some individuals, whose lives may be particularly at risk because of their activities or because
of their identity. “These include human rights defenders, officials fighting corruption and
organized crime, humanitarian workers, journalists, prominent public figures, witnesses to
crime, and victims of domestic and gender-based violence and human trafficking.”287
A duty to warn
348. Once a risk to life has been identified, “States parties must respond urgently and
effectively in order to protect individuals who find themselves under a specific threat, by
adopting special measures such as the assignment of around-the-clock police protection, the
issuance of protection and restraining orders against potential aggressors and, in exceptional
cases, and only with the free and informed consent of the threatened individual, protective
custody. ”288
349. Various authoritative sources around the world have recognized a duty by law
enforcement to warn intended victims of threats to their safety. For instance, British police
departments have responded to Osman by enacting policies that require officers to warn
intended victims if they have intelligence of a real and immediate threat to the intended
victim’s life. In fact, in 2017, the police in England and Wales issued more than 776 socalled “Osman warnings” or “threat to life” notices.289 Between 2012 and 2015, police forces
throughout the U.K. issued 1,948 notices.290
350. A particularly well-developed and public elaboration of the duty is found in the US
Intelligence Community Directive 191, which was issued in 2015 by Director of National
Intelligence, James Clapper.291 Its key features are as follows:
(a)
The Directive states that if a U.S. intelligence agency “acquires credible and
specific information indicating an impending threat of intentional killing, serious bodily
injury, or kidnapping,” that agency has a duty to warn the intended victim.
(b)
The duty to warn is owed to all intended victims, regardless of whether they
are U.S. or non-U.S. persons. Specifically, the Directive states that intelligence
286
287
288
289
290
291
68
against torture enshrined in article 7 of the ICCPR. The same conclusion applies to surrendering a
prisoner to a situation where he/she could be killed or disappeared. See Articles 2, 3, 10 and 14 of the
United Nations Declaration on the Protection of All Persons from Enforced Disappearance.
GC36, para 19
CCPR/C/GC36, para. 23
GC36, para 23; Regional Courts have further given practical meaning to States’ responsibility to
protect through the enaction of protectionary or interim measures or urgent measures the States must
take to avoid irreparable harm to persons or groups of persons who are in imminent peril.
See https://www.thesun.co.uk/news/6938036/osman-warning-death-threat-life-police/.
See https://www.huffingtonpost.co.uk/2015/10/28/osman-warning-letters-life-indanger_n_8405568.html?
See Intelligence Community Directive 191, available at https://www.justsecurity.org/wpcontent/uploads/2018/10/Intelligence-Community-Directive-ICD-191-duty-to-Warn.pdf.
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