When Death Becomes Murder: A Primer on Extrajudicial Killing

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William J. Aceves is the Dean Steven R. Smith Professor of Law at California Western School of Law.

International law prohibits the arbitrary deprivation of life, which includes extrajudicial killing. This norm is codified in every major human rights treaty and has attained jus cogens status as a non-derogable norm in international law. In the United States, the Torture Victim Protection Act (“TVPA”) establishes civil liability for extrajudicial killing. As evidenced in the TVPA’s text and legislative history, the definition of extrajudicial killing is based on international law. Despite the clear meaning of the TVPA’s text and the clarity of international law, the TVPA’s definition of extrajudicial killing is still contested in litigation, and some courts express uncertainty about its meaning. This raises a simple question: what constitutes an extrajudicial killing? This Article reviews the status of extrajudicial killing and clarifies its discrete elements under international law. It then considers the status of extrajudicial killings in the case of Mamani v. Berzain, a TVPA case involving the responsibility of the former President and Defense Minister of Bolivia for the killing of civilians in a 2003 government crackdown.

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