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
IV. Responding to the Information Collected: section links...
1. Introduction to Possible Courses of Action - 2. What You Should Know About International Reporting Mechanisms and How To Use Them - 3. What You Should Know About International Complaint Procedures and How To Use Them - 4. The Mechanisms and Procedures: United Nations - 5. The Mechanisms and Procedures: Regional - 6. Comparative Evaluation Tables of the International Procedures - Summary of Part IV

PART IV - RESPONDING TO THE INFORMATION COLLECTED

1. INTRODUCTION TO POSSIBLE COURSES OF ACTION

Once you have finished collecting your raw information, you will need to decide which is the most appropriate place to send it and how to present it in a way most likely to obtain the result you want. This chapter will identify and evaluate the courses of action that may be open to you, and provide some guidelines on how to make the best use of them.

Your first port of call should generally be to seek a remedy within the domestic system, particularly where the information concerns an individual case. For practical reasons, this handbook concentrates on obtaining remedies within the international system, but this should not be interpreted as meaning that domestic remedies should not be used. On the contrary, there are a number of reasons why they should be used wherever possible:

It is most appropriate to take action at the international level where:

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1.1. Action at the international level

At the international level, the range of mechanisms from which assistance can be sought in connection with allegations of unlawful killings is very wide. The focus of the handbook is those international procedures to which information can be sent and whose job it is to comment on whether or not a state has respected its obligations relating to unlawful killings under international law. It is through these procedures that it is possible to invoke a state's obligations under international law in order to obtain a formal or official response to allegations of unlawful killings and obtain some form of remedy for the violation.

It is also important to remember, however, that there are additional sources of help, advice, support or other forms of assistance, particularly if you feel uncomfortable about using a formal procedure. Such sources of help are addressed in Part V, Chapter 1.

1.1.1. Range of international procedures

There are many different possibilities for action at the international level. There are mechanisms that were created by the United Nations and can examine the situation of countries throughout the world. There are others that were created within a regional organisation and can only act in relation to states within that region. There are mechanisms that were created to consider only matters relating to unlawful killings and others that are empowered to examine more general human rights issues, including unlawful killings. The ways in which the mechanisms carry out their functions can vary quite widely from one to the next. The best way to distinguish between the various bodies is to consider their origin (i.e. how they were created), and their functions.

1.1.1.1. Origin of the mechanism

Not every mechanism can be used in connection with every country. The origin of the mechanism is important because it tells you what countries it may receive allegations about. The main distinction is between treaty bodies and non-treaty mechanisms.

The origin of a mechanism can also limit the states under its supervision in a different way. Where a mechanism is created in the context of an inter-governmental organisation, it is normally intended to apply only to states that are members of that organisation. This applies both to treaty and non-treaty mechanisms. This means that:

1.1.1.2. Functions of the mechanism

Many of the bodies described in this handbook have more than one function. In particular, you should not think that they only receive individual allegations. Many of the mechanisms are also designed to address the wider situation, ultimately with a view to having preventive effects. It is important to understand the differences between the various functions because each responds to different forms of information and provides different types of remedies. This means that you need to make sure that, on the one hand, your information is in a form to which the mechanism can respond and that, on the other, the mechanism is able to provide you with the kind of remedy you want. The principal functions of the mechanisms can be broadly divided into two types: reporting functions and complaint procedures.

1.1.1.2.1. REPORTING FUNCTIONS

These include:

1.1.1.2.2. COMPLAINT PROCEDURES

These involve:

 

TABLE 1: SUMMARY OF INTERNATIONAL MECHANISMS - BY ORIGIN AND FUNCTION MECHANISM ORIGIN FUNCTIONS

MECHANISM

ORIGIN

FUNCTIONS

Treaty

Non-treaty

Regional

World-wide

Reporting

Individual Complaints

       

State Reports

Monitoring

Fact-finding

Optional

Compulsory

Human Rights Committee

Y

   

United Nations

Y

   

Y

 

Committee Against Torture

Y

   

United Nations

Y

?*

Y

Y

 

Committee on the Elimination of Discrimination Against Women

Y

   

United Nations

Y

   

Y

 

Committee on the Elimination of Racial Discrimination

Y

   

United Nations

Y

   

Y

 

Special Rapporteurs of the UN Commission on Human Rights

 

Y

 

United Nations

 

Y

Y

   

1503 Procedure

 

Y

 

United Nations

 

Y

     

European Court of Human Rights

Y

 

Council of Europe

         

Y

European Committee for the Prevention of Torture

Y

 

Council of Europe (see note 1)

   

Y

Y

   

Inter-American Commission on Human Rights

Y

 

Organisation of American States

   

Y

Y

 

Y

Inter-American Court of Human Rights

Y

 

Organisation of American States

       

Y

 

African Commission on Human and Peoples' Rights

Y

 

Organisation of African Unity

 

Y

Y

Y

 

Y

Note 1: It is possible that a protocol to the European Convention for the Prevention of Torture will be adopted in the near future, which will make it possible for non-member states of the Council of Europe to become parties to the convention.

Note ?*: These functions will or may become available to these mechanisms in the near future. See mechanism-specific discussions for details.

1.1.2. How to select an international procedure

In order to choose among the wide range of procedures that exist at the international level, you need to consider:

1.1.2.1. Availability: which mechanisms are open to you?

This will depend on the country about which you have information.

As previously discussed, the UN non-treaty mechanisms will be applicable to countries all over the world without any need for specific consent. However, both UN and regional bodies that have been created by treaty are, as a rule, applicable only to those states that have agreed to be bound by the treaty. In the case of regional bodies, this will normally be limited to states from the region.

In addition, some of the treaties, which set up individual complaint procedures, make these procedures optional for States Parties. In such cases, in order for the individual complaint procedure to be available in relation to a particular state, it is not sufficient for that state to become a party to the treaty, but it must also expressly consent to the procedure. This means that a state can be a party to a treaty that sets up an individual complaint procedure but not allow those complaints against itself.

Furthermore, at the time of becoming a party to a treaty, states often have the opportunity to make a reservation to the treaty. Making a reservation means that the state has not accepted the exact terms of the treaty, but has modified one or more of its provisions to suit itself, as a condition of accepting the treaty. You should always check, not only if a state is a party to a treaty, but also if it has made any reservations to it, in case it is relevant to your case.

This means that, in order to determine which mechanisms will accept information about a particular country, you need to ask the following questions:

If it was:

If it was not: This will normally mean that it was set up by an inter-governmental organisation.

1.1.2.2. Suitability: which mechanisms are most suited to your objectives?

Once you have identified the mechanisms which are open to you, you will need to decide what you would like to achieve by submitting the information, in order to select the mechanism(s) most likely to fulfil your objectives. You could consider the following as a general guide:

TABLE 2: SUITABILITY OF TYPES OF MECHANISMS TO POSSIBLE OBJECTIVES

POSSIBLE OBJECTIVE

TYPE OF MECHANISM MOST LIKELY TO ACHIEVE THIS

General Objectives:

 

Draw attention to a situation/establish a pattern

Any reporting mechanism or complaint procedure

Seek positive changes in a general situation

Any reporting mechanism or complaint procedure

Combat impunity

Any reporting mechanism or complaint procedure

Individual Objectives:

 

A finding of violation

Any complaint procedure

Holding a perpetrator to account

Any complaint procedure; reporting mechanisms which address individual allegations

Reparation

Complaint procedures which can award reparations

Preventing deportation of an individual to a country where there is a substantial belief that he or she will be at risk of an unlawful killing

Complaint procedures which may order or recommend provisional measures; reporting mechanisms which address individual allegations

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1.2. Action at the national level

There are as many variations in domestic remedies as there are countries in the world. This handbook does not aim to address them in any comprehensive way. For this reason, this section will merely introduce some of the courses of action that you are most likely to come across within the domestic system, in order to raise awareness of their existence. You are, however, strongly advised to consult a domestic lawyer or more experienced NGO to obtain details about the actual remedies available in a particular country, and the practicalities of using them.

Possible courses of action at the national level could include:

1.2.1. Criminal proceedings

A person alleging that a public official has killed can generally seek to initiate criminal proceedings by making a complaint to the police, the local public prosecutor or a local court. In many domestic legal systems, a prosecution will only be opened if the public prosecutor decides that it is appropriate, and a victim cannot directly institute proceedings. You will need to consult a domestic lawyer to find out exactly how the procedure works in the relevant system. The objective of criminal proceedings is the punishment of the offender, not the compensation of the victim, and possible punishments include sentencing the perpetrator to a fine, probation or imprisonment.

Military personnel can generally be prosecuted in the same way as any other official, but may be subject only to internal military discipline, including the possibility of court-martial (trial of military personnel before a military court applying military law). Court-martial proceedings can only be initiated internally, but someone alleging an unlawful killing by a member of the military could lodge a complaint with the appropriate senior officer who would, ideally, be in a position to initiate an investigation.

It is obvious that where the military is in power, it is more likely that no investigation will be carried out, or that it will be ineffective. Nonetheless, failure on the part of a senior officer to initiate an investigation into an allegation of an unlawful killing under military law could constitute a failure to investigate, so it is worth being aware of this means of investigation even if it cannot be initiated directly by a victim. It is also an offence under the international law of armed conflict, (see Part II, Section 3.1.3.) as it is the responsibility of commanders to investigate breaches of the laws of war by their subordinates.

1.2.2. Civil proceedings

Civil proceedings might be based on provisions in a national code of obligations, some form of legislation or on the common law. These provisions deal with many different issues, but they all involve a breach of some sort of the general duty that everyone has, to exercise care in their relations with others. In general, civil proceedings are resorted to where an individual wishes to obtain compensation, usually financial, from the person responsible. The proceedings are judicial in nature and take place in the ordinary courts.

1.2.3. Human rights proceedings in national courts

If the country has incorporated human rights principles into its national legislation, e.g. through a Constitution, a Bill of Rights or through legislation which allows international treaties to be enforced in domestic courts, then a case could be taken to the appropriate court for a declaration of a violation in a particular case or pattern of cases. It is also possible that a claim for compensation could be made on behalf of the victim(s). Such actions may have to be taken to a specific court, e.g. a higher court, and arguments based on human rights principles may support applications in other types of cases.

1.2.4. Administrative proceedings

Examples of administrative remedies, which might be relevant to a victim of an unlawful killing, could include an application to a compensation commission set up to provide compensation to victims of violent crimes, or a submission to a police complaints authority. Administrative proceedings do not necessarily take place before a regular judge. Instead they will often involve decision-making by expert tribunals, or officials with special expertise or responsibility for a particular subject area.

1.2.5. Disciplinary proceedings

For our purposes, the relevant disciplinary proceedings are those internal to the police, the military, other branches of the security forces and the state administration. These are non-judicial proceedings in which a case is considered by a superior or superiors of the public official. As with court-martial proceedings, a complaint can be lodged with a superior but the decision to initiate proceedings may only be taken internally. The types of sanctions which may be imposed in disciplinary proceedings are normally related to the job, and could include withholding pay, temporary suspension from work, reassignment to another post or even dismissal.

1.2.6. Asylum claims

The general nature of the asylum process is to identify people who have a well-founded fear of being persecuted if they are sent back to a particular country, usually their country of nationality. Under refugee and general human rights law, states have an obligation not to send such persons back to that country. In some cases, the basis for showing that they are likely to be subject to persecution will be to show that they are at risk of being killed.

In such cases, the objective will not be to establish that the state, in which the person finds himself or herself, is responsible for an unlawful killing, but to demonstrate that a risk of death exists if they are sent back to another state. This will activate the state's obligation not to expel the person. The specific requirements will vary from one country to the other but, as a general rule, it will be necessary to show that:

Where the risk originates from non-governmental actors, it may be more difficult to establish, but there is movement in favour of placing such risk in the same category as that originating from state actors for the purposes of the asylum process.

If the application for asylum is rejected and a date set for deportation, you should be aware that a number of the international mechanisms are able to grant provisional measures which could include a request to the Government to delay deportation until they have considered the case. The Special Rapporteur on Extra-judicial, Summary or Arbitrary Executions has also intervened on occasion in such cases by sending an urgent appeal. None of these requests are binding, but they can cause embarrassment in the international community and are often complied with, at least temporarily.

1.2.7. Exceptional remedies

In many countries, exceptional remedies exist under which individuals deprived of liberty are entitled to challenge the legality of their detention before a judicial authority which has the power to order their release. Common names for such remedies include habeas corpus and amparo. They may be initiated by an application to a court, either by the individuals themselves or, where this is not possible, by any other person acting on their behalf. In some systems, it may be necessary for this to be done by a lawyer. Such applications may generally be made at any time and should take priority over other court matters. Under international human rights law, these remedies should be available at all times, including during states of emergency. They are particularly important where an individual is being held in incommunicado detention, which is considered to increase the risk of torture and killings.

Also, where an individual is believed to be at risk of torture during interrogation, it may also be possible to apply to a court for an injunction (an order to refrain from a particular type of conduct) against the relevant public officials.

1.2.8. National human rights institutions

In some countries, specialised official bodies may exist, the sole purpose of which is to examine or investigate possible violations of human rights. Some, such as ombudsperson (or "Ombudsman") institutions and national human rights commissions, are concerned with current abuses. Others may have been established by the state or by an international organisation working in partnership with the authorities, such as truth commissions, and have the specific task of investigating past human rights violations for a fixed period. The specific powers and procedures vary from one body to the next, but can normally be found in the piece of legislation that created it. Some may be able to take decisions in individual cases (certain national human rights commissions), while others may be more concerned with an overall situation (truth commissions). Not all of these bodies are as effective or independent as they might be.

1.2.9. Field offices of inter-governmental organisations

In some states, particularly in the aftermath of armed conflict, inter-governmental organisations, such as the United Nations, or the Organisation for Security and Co-operation in Europe, may establish field offices. These will have a variety of purposes which will be dictated by the mandate for their presence. They may be enforcing aspects of a peace agreement, establishing a commission of investigation into serious crimes or supporting the authorities in rebuilding the state after the conflict, in line with human rights principles. It is possible that they will employ field workers and/or human rights officers to make reports of cases and to advise on what action can be taken within the remit of the organisation and the context of the situation in the country.

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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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