Reporting Killings as Human Rights Violations Handbook

Reporting Killings as Human Rights Violations Handbook

How to document and respond to potential violations of the right to life within the international system for the protection of human rights

By Kate Thompson and Camille Giffard

Handbook links: website home page
Table of Contents - Search - Part I: Essential Reading - Part II: Identifying a Potential Violation - Part III: How to Document Allegations of Unlawful Killings - Part IV: Responding to the Information Collected - Part V: Where can you Seek Further Help? - Appendices
III. How to Document Allegations of Unlawful Killings: section links...
1. Introduction - 2. Basic Aims of Documentation - 3. Evidence - 4. Investigative Framework - Summary of Part III

PART III - HOW TO DOCUMENT ALLEGATIONS OF UNLAWFUL KILLINGS

4. INVESTIGATIVE FRAMEWORK

4.1. Introduction

In this section we create an investigative framework to guide your approach to an alleged unlawful killing. In any scenario of documenting an unlawful killing, you should attempt to explore all the avenues, detailed in this section, as fully as possible. However, if you are not having any luck with some lines of enquiry, persevere with the case but note the reasons why you are having difficulties and aim to obtain as much other information as possible.

The investigation of the fact, causes and background circumstances of a death is a complex and multi-layered process. The death investigator's "Golden Triangle" and "5 Ws" can assist you to understand it. These clarify the aims of an investigation, demonstrate the interdependence of all the evidence and the importance of the context of each piece of evidence. However, as a documenter of human rights violations, you are not only trying to document the evidence which fulfils the requirement of the "Golden Triangle" and answers the "5 Ws", but you are also focussing on the state's role in the fact, causes and reaction to the death.

The "5 Ws" also provide a quick guide to the questions that should have been answered by the state in the course of a full, fair, professional and independent investigation following a suspicious death. They will, therefore, help you to evaluate the state's response to a death even if you find that your organisation is itself having to take steps to establish answers to some of these questions.

It is crucial not only to document the killing itself but also the state's activities in responding to the killing (i.e. whether there was a thorough, competent, prompt and impartial investigation, an autopsy with public results, whether any agencies or suspects have been held to account and whether reparations have been provided to the victims.)

These are equally important aspects of a case when responding to an unlawful killing using the international system for the protection of human rights. All the information is needed for the mechanism to evaluate whether there has been a human rights violation and the exact nature of it. This is especially the case where the killing was not the responsibility of the state, but the state responded (or failed to respond) to a death in a way that did not meet international human rights standards. The specific context of the case you are dealing with will dictate how you approach the evidence gathering process and how easy it is for you to obtain all the relevant information. For example, if you have access to the body you will be able to obtain evidence from it, if there is a public inquiry you will be able to attend. This section goes on to provide more detail about how to approach establishing the facts, causes and background circumstances of a killing.

 TIP - Approaches to death investigations:

Goals of death investigation:

" 5 Ws"
Who - is the deceased?
When - was the time of death?
Where - was the place of death?
Why - the cause of death
hoW? - the manner of death

Investigation process:

"The Golden Triangle"

body - scene - history

Each of these three elements is equally important in a death investigation. A failure in one area will likely lead to a failure in the investigation and each element needs to be examined in the context of the others.

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4.2. Basic facts about the killing

4.2.1. Who - is there a dead body and what is its identity?

You should aim to document the true identity of the victim(s) and any evidence of death. This may seem obvious but here are some examples of situations where establishing such facts can be difficult or impossible:

However in any event you should aim to document as many of the following as you can. Establishing some of the facts may help you to get answers to others:

 TIP - Death threats / Refoulement

You may be dealing with a death threat in which case the person may be in hiding, and/or using an alias. Remember if you are dealing with such a case urgent actions cannot normally be taken without a name.

 

4.2.1.1. Sources of evidence:

Establishing the identity of a body may not be straightforward but there are procedures for establishing the identification (or correct attribution of a birth/legal name to human remains) which are well-established and universal in their application and governed by the international rules.

The expertise falls within the medical speciality of "forensic pathology" but other skilled professionals are also involved such as police, dentists, anthropologists and biologists. In addition, circumstantial evidence is crucial, e.g. witnesses to deaths and burials. Experts aim to establish "initial indicators" of identity through recognition of the body, recognition of clothes, documents and then, this information is cross-checked, using any information about the missing person, e.g. age, height, sex, with the physical knowledge of the corpse.

To establish the identity of the victim(s) and the fact of death there are the following potential sources of evidence:

 TIP

If you cannot obtain crucial documentation or reports, e.g. a death certificate, but you know they exist or should exist, then remember to tell the human rights mechanism. They will be able to ask for the documentation from the state and stand a better chance of obtaining it. It is, therefore, important to familiarise yourself with the law, regulations and procedures governing what should happen following a suspicious or reported death, so you know what steps the state should take and what documents should be available in the case you are dealing with.

 

4.2.2. When, where - the scene of the killing?

You should aim to provide the date, place and time of death as accurately as possible.

The time and place of death should have been established in the course of a post-death inquiry or investigation, e.g. at the autopsy. If these are difficult to establish then you know that the state is falling short of its duty to investigate the case effectively.

Killings can take place in any location, especially in countries where there is a widespread climate of violence. High-risk locations are those where demonstrations take place, where people are arrested (their homes, or the homes of loved ones), places of detention, places where people have gathered to escape violence, e.g. churches. While the majority of such places will be familiar to those in the local area, it is fairly common for unacknowledged places of detention to exist also, or for mistreatment to occur during transportation to an official place of detention. You may be able to obtain evidence of the existence and location of such places from other detainees.

The location of the death should be identified as closely as possible by description, maps and sketch plans. You may need to establish the general location, (e.g. an address) as well as the specific location (e.g. the position of a body in a particular room in the address). It is usually extremely helpful to your understanding of a case to visit the location of the killing if it is safe to do so and will not disturb evidence, and then to establish the general and specific locations with:

The time of death can be extremely difficult or extremely simple to establish. This will depend on an enormous variety of factors: the number of witnesses, the general context (e.g. discovery of a mass grave), the amount of time which has elapsed since the death, the location of the corpse since the death (e.g. buried or not?), the state and amount of biological material which remains, and whether or not the state grants access to the corpse of the deceased. Like establishing identity, there are numerous scientific ways of establishing the length of time which has elapsed since a death and you would need a qualified forensic examiner to undertake such a study. Clearly forensic examiners can only do this work if they have access to the body. If you find yourself in a situation where you need this kind of help you should obtain assistance from a more experienced lawyer, NGO, independent investigative authority or international organisation who is working in the area.

4.2.2.1. Sources of evidence:

4.2.3. Why and how - cause and manner of death?

There are innumerable ways in which a person's life can be ended (causes) but it is necessary to identify the specific cause by retracing the origins of the death until no further questions can be asked. For example, a death was caused by a haemorrhage, which occurred because of an entrance wound, which was caused by a gunshot. So you are aiming to identify the illness or injury which initiated the train of events which led to the death.

The manner is determined by the type of condition which has resulted in the death and the circumstances which led to that condition. These may be natural - the result of disease, or unnatural - in that it was caused by an external condition causing injury or poisoning (accidental, homicide or suicide). The manner of death cannot always be determined and will be classified as "undetermined". Generally, if the manner of death involves any external condition it should be referred to a coroner or medical examiner performing the same function. The cause and manner of death should, therefore, be evident on the death certificate and any autopsy report. The degree of difficulty which you have establishing the cause and manner of death will illustrate whether the state is meeting its obligations to adequately and appropriately investigate the death. However, as we are focusing on deaths which take place during law enforcement and military operations, including those in custody, such deaths are largely likely to be homicides or possibly, in the case of deaths in custody, suicides.

Clearly in documenting the cause and manner of death you will be going some way towards exploring the circumstances which led to the death and, therefore, the nature of the state's involvement in the death. Depending on the circumstances of the death, you may obtain a lot of detail about the state's direct or indirect responsibility.

4.2.3.1. Sources of evidence for establishing cause and manner of death:

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4.3. History & circumstances of the killing

You should aim to establish a full and detailed chronological history of the individual victim and of the circumstances surrounding their death.

Exploring the history and circumstances of the killing may assist in establishing some of the answers to the "5 Ws" and conversely, answering the "5 Ws" may have provided a lot of information about the history and circumstances of the killing.

Such a wide-ranging survey of the surrounding facts may also lead you to establish who or, at least, which type or group of suspects have responsibility for the death. If this happens you should seriously consider obtaining advice from a more experienced NGO or an international organisation present in you area. Depending on the circumstances, you may wish to bring this to the attention of the prosecuting authorities in your country in order for them to take steps towards initiating a criminal prosecution.

Remember, all information gathered about the deceased person and the circumstances may be useful, do not discount any of it and keep of all records of it.

 

 INFORMATION BOX - Forensic testing

Forensic testing can reveal an enormous amount about a case. It should be carried out only by experienced and professional specialists. Such tests may, of course, be carried out by the state in the course of a police investigation or autopsy, so you may have access to reports. However, the state may not have the resources or personnel to carry out many of these tests. If your organisation feels there is a need to carry out one of these tests in order to establish a crucial point in the case, then we advise you to contact an experienced or specialist NGO or an IGO to ask for assistance (see Appendix I ). Here we provide you with a summary of the main types of forensic test that can be carried out:

  • Ballistics - determination of whether a bullet recovered at the scene, or from the victim, was fired from a particular gun or type of gun, e.g. one thought to be a murder weapon
  • Blood - analysis can determine and compare blood types
  • DNA - comparison of the DNA structure of body parts/fluids
  • Engineers - examination of vehicles and tyre marks on roads to explain how a road traffic accident came about
  • Fibre analysis - establishes the origins of fibres and compares different fibres
  • Forensic anthropology - examination of skeletal remains to draw conclusions about height, age and sex etc.
  • Forensic entomology - examination of insect life on a corpse to establish the time elapsed since death
  • Forensic odontology - analysis and comparison of bite marks and teeth
  • Forensic pathology - examination of all systems of the body to establish cause of death
  • Handwriting analysis - comparison of handwriting and identification of whether the authors are the same
  • Latent fingerprints - lifting and preservation of prints from physical evidence recovered and comparing with a suspect or a victim (for identification)
  • Speech analysis - comparison of the acoustic properties of recorded speech with real speech
  • Tyre tracks and shoe comparison - comparison of the marks left by tyres and shoes with the actual imprint
  • Typewriter analysis - analysis of 2 samples of typewriting to see if they are the same

 

4.3.1. What you need to know about the deceased

Knowing a full picture of the deceased will assist you to establish the motivation of the killer and could provide clues about how, when and where they were killed:

4.3.1.1. Sources of evidence:

4.3.2. The scene and the suspect(s)

There is an enormous amount of information that can be established about the scene of a killing and additionally, an enormous variety of sources of evidence. Using all the evidence that you gather, you should aim to document a chronological and consistent account of the death, which is as detailed as possible. You may also find that there are scenes other than the scene of death, which it is useful to visit and investigate in order to obtain a fuller history of the killing, such as, the victim's home, work-place or vehicle, the hospital where the victim was taken, news agencies, churches, abandoned vehicles. You should try to fill any gaps and, if you cannot, you should explain why, (e.g. because the authorities wouldn't tell which officers were on duty). The kinds of questions which need to be established about the scene are as follows:

(Note - The method of control, arrest, abduction or taking into custody, and subsequent treatment, may itself be characteristic of a particular group operating in your area, which might have been established by previous submissions to the international bodies, and helps to establish the identity of the perpetrators.)

You do not necessarily have to identify the individual perpetrators, (though you should if you can) as long as you can establish that they had a connection with the state.

 TIP

If you think the evidence you are gathering may lead to a criminal prosecution then you should consider obtaining further advice from a more experienced NGO, or an IGO, and/or reporting the matter to the prosecuting authorities. In such cases the evidence gathering process becomes crucial because the standard of proof for a successful prosecution is very high. Anything that could be interpreted as having affected or interfered with the evidence could undermine the prosecution's case. Although it is equally important to be sensitive when investigating and handling evidence in a human rights case, the standard of proof is not as stringent because no individual is at risk of being punished.

 

4.3.2.1. Sources of evidence:

4.3.3. The general context

Allegations may be received in a wide range of contexts and places. It is also useful for the human rights mechanisms to be given some background material about the general context in which the suspected violation occurred so that they have an overall impression of the prevailing political, social, economic and legal climate in countries where violations are taking place. You should aim to provide details about the prevailing political climate, its historical basis, whether there is a generalised atmosphere of repression (e.g. is there press censorship, freedom of religion etc.? is there corruption in public and private institutions? are governmental institutions accountable and transparent?).

You should aim to provide the main characteristics of the general contexts including:

4.3.4. Death in custody and non-custodial residential settings

Such deaths require a specific approach by the human rights documenter. It is clear that it may well be more difficult to obtain details about the scene of the offence and, indeed, the cause and manner of death. Given that the deceased was in the custody of the state at the time death occurred then the state has a clear duty to account for and investigate any death. It should establish the "5 Ws" and take any necessary action to deal with institutional failures and/or individual acts or omissions that contributed to the death. However, this also means that the victim's family and the human rights activist is greatly dependent on any information provided by the state.

It may well be possible for the state to identify a suspected killer or a range of suspects quite easily, for example, by checking who was on duty at the time of death but the authorities may be extremely reluctant to give out such information. This section aims to give some guidance on the specifics of these types of cases.

Checklist - THE DEATH SCENE - Guidance for interviewing a witness

Witness Details

  • Details of witness supplying information (name, address, date of birth, occupation)
  • Date of interview with witness
  • Date and time of witness's observations of scene
  • Time of their arrival at scene
  • Reason for their arrival at the scene

Questions for witness:

1. Location

Describe:

  • The path taken to and from the scene
  • Weather and light conditions
  • Location of scene (describe as exactly as possible - use grid references if possible, consider sketch map and photographs)
  • The scene itself (was it a street, a square, a transport point, an open space, what were the surrounding buildings, was it a residential or commercial area? etc.)

If inside a building:

  • Type of building
  • Layout and description of rooms in the building
  • Entrance and exit points including windows - were they open? locked? damaged?
  • Furniture and décor - location? disarray? damage? missing?
  • Temperature and lighting?
  • Mail and newspapers?
  • State of food and drink left at scene?

2. People

Describe:

  • ALL people present including the deceased (names; organisation - police, military, ambulance, fire personnel; clothing including description of uniform; all other identifying feature, e.g. sex, approximate age, height, appearance) - Give them "names" for ease of reference, e.g. Police X, Police Y, Victim A, Victim B etc.
  • Locations and movements of all persons at the scene including the deceased (use sketch map)
  • Actions of all persons at the scene, including the deceased:
    • What did they do?
    • What did they say? Which language?
    • What was their demeanour and how did you know?
    • Were they armed? Describe the weapons.
    • Did they use their weapons? When and how?

After the apparent death:

  • Did they touch anything?
  • Did they move anything?
  • Did they change anything?
  • Did any other people arrive at the scene during or after the incident? - describe them, their locations, movements and actions?
  • Was the scene barricaded off or protected? If so, when and how?

3. Vehicles

  • Describe ALL vehicles at scene: identify them as exactly as possible (was there a registration plate, what were the numbers, colour, make and model of vehicle?)
  • Describe who and what was in the vehicle
  • Describe their location - moving or parked? (use sketch map)
  • Describe their movements including which directions they arrived from and left in

4. Other

Description and location of:

  • Marks on surfaces e.g. footprints, tyre marks, drag marks, blood - liquid/smears/spatters/spots? other body fluids?
  • Evidence of use of weapons, e.g. empty cartridges, abandoned weapons or items which could have been used as weapons, e.g. ropes, razor blades (location and orientation)
  • Other objects, e.g. broken glass, cigarettes and butts, bottles/glasses of alcohol, evidence of drug use - syringes, plastic bags, containers of medicines or illegal drugs
  • Any distinctive odours, e.g. petrol, gas, perfume?
  • Any other information which could possibly be relevant

4.3.4.1. Types of institution

In this section we give some detail about the types of institution where deaths can occur and some guidance as to the types of questions you may wish to explore when investigating a death which has taken place in such an institution.

When collecting allegations in camps for refugees and internally displaced persons, be aware that you may receive allegations about abuses which occurred prior to arriving in the camp, and which have occurred inside the camp. It is very important to keep very accurate records of the perpetrators of alleged incidents and to be very thorough in seeking to identify them. This applies equally to allegations made in connection with conflict zones generally.

4.3.4.2. Circumstances and location of detention

The history or context of the detention will inform the cause of death and whether it is possible to establish that there has been a human rights violation.

4.3.4.3. Conditions of detention

Obtain as much detail as possible about the place in which the deceased was held, particularly the cell or place where they slept and any other rooms where they were taken, including for any interrogation. (Witnesses may themselves have been blindfolded - if this is the case, you should ask them for descriptions using senses other than sight - what did they hear, smell or touch?)

Below is the sort of information you need to document about conditions:

4.3.4.4. Sources of evidence:

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4.4. The state's response

You need to provide an overview of what the state has done to regulate and respond to a report of a suspicious death or to a death threat. As the state is obliged to establish procedures which prevent unlawful deaths occurring, it is important to document whether those procedures exist and how they have been implemented in this particular case. Of particular importance is the duty upon the state to investigate an unlawful killing. This will involve obtaining some familiarity with the regulatory and legislative framework that applies to the work you are doing.

In cases where killings seem to be the responsibility of a private individual or non-state individual agency, it is particularly crucial to understand how the state has regulated their behaviour and what action it has taken following the death. This may be the only way of establishing that the state has some responsibility for the killing in human rights law.

You should aim to provide details (and ideally copies) of the law, procedures and regulations governing the following:

These documents should go some way towards enabling the human rights system to analyse whether the state has met some of its international obligations to regulate and prevent activity, which can lead to lethal force being used by the state or by private individuals or agencies. If your organisation has the time and resources you may find it helpful to establish a permanent library of such information. A useful and time-saving exercise would be to undertake an analysis of the regulatory framework and how it is implemented and to evaluate whether this is in line with the international human rights standards detailed in Appendix IV. Such an analysis could, itself, be provided to human rights reporting procedures to demonstrate a generalised pattern of violations through the failure to properly implement human rights obligations. Your analysis could then be used to support individual cases without having to repeat the same exercise. In each case you subsequently deal with, it will then be easier to establish whether it is the regulations themselves that fall short of international standards, or just the way they have been implemented or complied with.

However, you should also try to evaluate and document how the regulations have been applied in the circumstances of the particular case, unless you are dealing with a state where the regulatory system is so weak that it is not functioning. If this is the case, then explain that it is, and provide some examples of how it is not working, e.g. there are no facilities to preserve bodies and an insufficient number of doctors and facilities for autopsies to be routinely carried out.

You will need to know whether:

Where the killing resulted from a generalised failure of the state to bring about law and order in a community, e.g. where there are many firearms in the hands of private citizens, or where there are communities which are dominated by gangs, you need to analyse what steps have been taken to draw the state authorities. attention to the situation and what steps they have taken to enforce the law. You will need to show that the state has failed to act in order to demonstrate that there is a human rights violation, e.g. a failure to investigate the killing effectively, a failure to prosecute the perpetrator, etc.

4.4.1. Sources of evidence

4.4.1.1. General legislation and regulations:

4.4.1.2. Documentation on the state's response in the individual case:

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Handbook links: website home page
Table of Contents - Search - Part I: Essential Reading - Part II: Identifying a Potential Violation - Part III: How to Document Allegations of Unlawful Killings - Part IV: Responding to the Information Collected - Part V: Where can you Seek Further Help? - Appendices
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