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

5. THE MECHANISMS AND PROCEDURES: REGIONAL

5.1. The European System

5.1.1. Complaint Procedure: The European Convention on Human Rights

TABLE 22: BASIC FACTS: EUROPEAN COURT OF HUMAN RIGHTS

BASIC FACTS ABOUT: The European Court of Human Rights

Origin:

How was it created?

By the 1950 European Convention on Human Rights Revised by the 11th Protocol to that convention, 1994

When did it become operational?

1998 under the revised system

Composition:

How many persons is it composed of?

As many judges as there are States Parties to the convention

Are these persons independent experts or state representatives?

Independent experts

Purpose:

General objective

To examine complaints of violation of the ECHR

Functions

  • Inter-State complaints (compulsory) (Article 33, ECHR)
  • Individual complaints (compulsory) (Article 34, ECHR)
  • Fact-finding (in the context of individual complaints only, and is an optional step in the procedure)

 

5.1.1.1. What are the admissibility requirements?

A communication will be declared inadmissible if:

5.1.1.2. What should your application contain?

Your initial letter should contain:

If you are then sent an application form, you should follow the instructions on that form and in the accompanying letter.

TABLE 23: BASIC CHRONOLOGY OF INDIVIDUAL COMPLAINT PROCEDURE: ECHR

BASIC CHRONOLOGY OF: Individual Complaint Procedure - ECHR

Your initial letter is sent to the Court, containing minimum information

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You may be asked for further information - if it appears that there may be a case, you will be sent an application form

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Upon receipt, your application is registered and brought to the attention of the Court

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The allegations are communicated to the Government, which is asked to submit its observations on the admissibility of the application

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The applicant replies to the Government observations

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Sometimes, the Court may decide to hold an admissibility hearing. The Court decides if the application is admissible

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Possibility of friendly settlement

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Parties are asked to submit any further observations on the merits/additional evidence

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Court considers the merits and adopts a judgment, possibly after an oral hearing

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The Court usually decides the question of just satisfaction at the same time, but could choose to do so at a later date

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The State Party must execute the judgment under the supervision of the Committee of Ministers of the Council of Europe

 

TABLE 24: PRACTICALITIES OF USING INDIVIDUAL COMPLAINT PROCEDURE: ECHR

PRACTICALITIES OF USING THE INDIVIDUAL COMPLAINT PROCEDURE: European Convention on Human Rights

Who can bring a case under this procedure?

Individuals, NGOs and groups of individuals claiming to be victim of a human rights violation. A case can be brought by a close relative of the victim where the victim cannot do so in person, e.g. where he or she has disappeared or is dead.

Is there a time limit for bringing an application?

Six months from the date of the final decision taken in the case by the state authorities.

Can you bring a case under this procedure if you have already brought one under another procedure concerning the same set of facts?

No

Do you need legal representation?

It is not necessary at the time of the application, but is required for proceedings after a case has been declared admissible, unless exceptional permission is given by the President of the Court for the applicant to present his or her own case.

Is financial assistance available?

Yes, but only if the application is communicated to the Government, not at the time of the application. You will need to fill out a statement of your means signed by your domestic legal aid board, as legal aid is only granted where there is a financial need.

Are amicus briefs accepted?

Yes, with permission (Rule 61, Rules of the Court).

Who will know about the communication?

In principle, the proceedings are public unless the President of the Chamber decides otherwise. In exceptional case, where an applicant does not wish his or her identity to be made public and submits a statement explaining the reasons for this, anonymity may be authorised by the President.

How long does the procedure take?

Several years

What measures, if any, can the mechanism take to assist it in reaching a decision? e.g. fact-finding hearings; on-site visits; written pleadings; oral hearings; other.

Fact-finding hearings; expert evidence; written pleadings; oral hearings.

Are provisional or urgent measures available?

Yes, but it is a practice which has been developed by the Court and has no basis in the convention. It is applied only in very specific cases, mainly immigration/deportation cases where there is a "real risk" if a person is returned. (Rule 39, Rules of the Court)

 

5.1.1.3. Specific tips

5.1.2. The European Committee for the Prevention of Torture

TABLE 25: BASIC FACTS: EUROPEAN COMMITTEE FOR THE PREVENTION OF TORTURE

BASIC FACTS ABOUT: The European Committee for the Prevention of Torture

Origin:

How was it created?

By the 1987 European Convention for the Prevention of Torture

When did it become operational?

1989

Composition:

How many persons is it composed of?

As many members as there are States Parties to the Convention (currently 40)

Are these persons independent experts or state representatives?

Independent experts

Purpose:

General objective

To improve the protection of persons deprived of their liberty by working to prevent torture and inhuman or degrading treatment or punishment

Functions

  • Monitoring
  • Fact-finding

If you aim to report a case of death, resulting from torture, to this Committee then we advise you to seek further detailed guidance from The Torture Reporting Handbook by Camille Giffard. For details of how to obtain a copy see Appendix II.

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5.2. The Inter-American System

The regional organisation in the Americas, by which is meant North, Central and South America, as well as the Caribbean region, is the Organisation of American States (OAS). A number of human rights instruments have been adopted within the OAS, including the American Declaration on the Rights and Duties of Man, the American Convention on Human Rights, the Inter-American Convention to Prevent and Punish Torture, the Inter-American Convention on the Forced Disappearance of Persons, and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women. There are two mechanisms which are responsible for the implementation of all of these instruments: the Inter-American Commission and Court of Human Rights.

Languages: The official languages of the Commission and Court are Spanish, French, English and Portuguese. The Court and Commission select their working language(s) in accordance with the languages spoken by their members. In the context of the individual complaint procedure, the Court may decide to work in the language of one of the parties to a particular case, as long as that language is also an official language.

TABLE 26: BASIC FACTS: INTER-AMERICAN COURT OF HUMAN RIGHTS

BASIC FACTS ABOUT: The Inter-American Court of Human Rights

Origin:

How was it created?

By the 1969 American Convention on Human Rights

When did it become operational?

1979

Composition:

How many persons is it composed of?

7

Are these persons independent experts or state representatives?

Independent experts

Purpose:

General objective

To supervise the implementation of the American Convention on Human Rights

Functions

  • Individual complaints (optional) (Articles 61-62, ACHR)

 

TABLE 27: BASIC FACTS: INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

BASIC FACTS ABOUT: The Inter-American Commission on Human Rights

Origin:

How was it created?

By a resolution of the OAS Foreign Ministers in 1959 for the purpose of furthering respect for the American Declaration on the Rights and Duties of Man

Revised by the American Convention on Human Rights in 1969

Composition:

How many persons is it composed of?

7

Are these persons independent experts or state representatives?

Independent experts

Purpose:

General objective

To promote respect for, and defence of, human rights

Functions

  • Monitoring (Article 41, ACHR)
  • Fact-finding (Article 41, ACHR)
  • Inter-State complaints (optional) (Article 45, ACHR)
  • Individual complaints (compulsory) (Article 44, ACHR)

 

5.2.1. Reporting Mechanism: The Inter-American Commission on Human Rights

5.2.1.1. How does the Inter-American Commission on Human Rights work?

The Inter-American Commission is responsible for supervising state respect for obligations under a number of OAS human rights instruments. It has reporting functions as well as receiving individual complaints (the latter will be considered below, Part IV, Chapter 5.2.2.).

In relation to all OAS Member States (whether or not party to the American Convention on Human Rights), the Inter-American Commission is empowered to develop awareness of human rights, make recommendations to governments, prepare studies and reports, urge governments to supply it with information regarding human rights, and serve as an advisory body regarding human rights. Most importantly, for the purposes of this handbook, it can:

In relation to States Parties to the Inter-American Convention on Forced Disappearance of Persons petitions and communications can be processed by the the Commission in the usual way and in relation to the Inter-American Convention to Prevent and Punish Torture, it is also empowered to:

5.2.1.2. What can you achieve by submitting information to the Inter-American Commission on Human Rights?

Although it is able to engage in its own fact-finding, it is the information it receives from a variety of sources, including NGOs, which helps the Inter-American Commission to identify those situations most in need of its attention. Submitting information gives you an opportunity to:

In addition, supplying information in the context of preparations for on-site visits provides a further opportunity to draw the attention of the Inter-American Commission to the most pressing problems in a very specific way.

5.2.1.3. What should a communication to the Inter-American Commission on Human Rights contain?

See Part IV, Chapter 2, for suggestions on how to submit individual and general information to a reporting body.

5.2.2. Complaint Procedure: the Inter-American Commission and Court of Human Rights

See Part IV, Chapter 5.2. above for 'Basic Facts About: the Inter-American Commission on Human Rights' and 'Basic Facts About: the Inter-American Court of Human Rights'.

A complaint within the Inter-American system can be based either on the American Convention on Human Rights (where a state is a party to that convention) or on fundamental human rights standards under general international law, with particular reference to the American Declaration on the Rights and Duties of Man (where a state is a member of the OAS but not a party to the American Convention on Human Rights).

In practice, the application procedure works in the same way in both cases as long as the complaint remains before the Commission. However, complaints can only be referred to the Court if they concern:

5.2.2.1. What can you achieve by using this procedure?

The Inter-American Commission on Human Rights can:

The Inter-American Court of Human Rights can:

 

TABLE 28: BASIC CHRONOLOGY OF INDIVIDUAL COMPLAINT PROCEDURE: INTER-AMERICAN SYSTEM

BASIC CHRONOLOGY OF: Individual Complaint Procedure - Inter-American System
[CN = Commission      CT = Court]

A communication is received by the CN

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The Secretariat consider whether all Requirements for the Consideration of Petitions (Article 28, Rules of Procedure) are met. The petitioner may be asked for further information.

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The allegations are communicated to the state, which is asked to submit its views on the admissibility of the application within 2 months (or less if an urgent case). The applicant may be asked for further comments on the state's response.

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The allegations are considered by a Working Group of the Commission on Admissibility, which makes recommendations to the Commission. A report on admissibility is adopted by the Commission and published. If the petition is admissible it is registered.

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A period of two months is set for the petitioners to submit additional observations on the merits of the case, which are then transmitted to the state, which is given two months to reply.

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Both parties may be given further opportunity to comment on each other's submissions.

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The CN may gather information, through on-site visits, a hearing or any other means necessary.

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The CN offers its services to assist in reaching a friendly settlement.

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If no friendly settlement is reached, the CN deliberates the merits of the case (decides whether there is a violation). If no violation is found, the report is published. If one or more violations is found, the CN prepares a confidential preliminary report with its proposals and recommendations, and transmits it to the state with a deadline for a response. (Where a state has accepted the jurisdiction of the CT the petitioner is, at this stage, invited to supply their views on whether the case should be transmitted to the CT, together with other details).

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If the Member State does not comply with the recommendations, and is:

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Not party to the ACHR or is a party but has not accepted the jurisdiction of the CT, or the CN has decided not to refer to the CT then the CN will prepare a Final report with its conclusions and recommendations. The parties are invited to submit information on compliance within a specified time frame.

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The CN consider the information received about compliance and votes on whether and how to publish the Final report.

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The CN decides on any follow-up measures it wishes to take.

 

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A party to the ACHR and has accepted the jurisdiction of the CT, the case is referred to the CT by the CN (unless an absolute majority of the Commission decide not to do so).

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The CT gathers information about the case through written and oral hearings and any other means necessary. A friendly settlement is still possible at this stage.

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The CT adopts a judgement stating whether or not there has been a violation.

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The CT also addresses the question of reparation, either in the original judgment or in a separate one.

 

5.2.2.2. What kind of complaints can be examined?

By the Inter-American Commission on Human Rights:

Where it concerns a State Party to the American Convention on Human Rights, a complaint can be examined if:

Where it concerns an OAS Member State not a party to the American Convention on Human Rights, a complaint can be examined if:

By the Inter-American Court of Human Rights:

A complaint can be examined if:

5.2.2.3. What are the admissibility requirements?

A communication will be inadmissible if:

5.2.2.4 Specific tips

TABLE 29: PRACTICALITIES OF USING INDIVIDUAL COMPLAINT PROCEDURE: INTER-AMERICAN SYSTEM

PRACTICALITIES OF USING THE INDIVIDUAL COMPLAINT PROCEDURE: Inter-American System

Who can bring a case under this procedure?

Any group or person, or any NGO entity legally recognised in one or more Member States, either on own behalf or on behalf of a third person.

Is there a time limit for bringing an application?

Six months from the final decision in the case where domestic remedies have been exhausted, or within a reasonable time of the facts alleged, where exhaustion of domestic remedies is not possible.

Can you bring a case under this procedure if you have already brought one under another procedure concerning the same set of facts?

No - unless the case was brought by a third party without the authorisation of the victim or his/her family

Do you need legal representation?

Not necessarily but it is advisable.

Is financial assistance available?

No

Are amicus briefs accepted?

Yes

Who will know about the communication?

The petitioners can hold a press conference after presenting the petition.

How long does the procedure take?

May take years

What measures, if any, can the mechanism take to assist it in reaching a decision? e.g. fact-finding hearings; on-site visits; written pleadings; oral hearings; other.

Fact-finding hearings; on-site visits; expert evidence; written pleadings; oral hearings.

Are provisional or urgent measures available?

Yes

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5.3. The African System

The African system for the protection of human rights is based on the African Charter on Human and Peoples' Rights, adopted under the auspices of the Organisation of African Unity (OAU). Supervision of respect for the Charter has, until now, been the exclusive domain of the African Commission on Human and Peoples' Rights. In the context of its work, the African Commission has appointed a number of Special Rapporteurs, namely the Special Rapporteur on Extra-Judicial Executions, the Special Rapporteur on Women and the Special Rapporteur on Prisons and Conditions of Detention in Africa. In 1998, a Protocol was adopted for the purpose of establishing an African Court to work alongside the Commission, but this Court will only become operational when 15 States have signed the Protocol. On the basis of current indications given by African States, this is likely to take between five and ten years.

In 1999 the African Charter on the Rights and Welfare of the Child was adopted, also under the auspices of the OAU. It establishes a Committee to oversee its implementation and to interpret its provisions.

Languages: The official languages of the Commission are Arabic, English, French and Portuguese, but in practice the Secretariat works in English and French. If a party wishes to make a presentation in another language, it should arrange for translation.

TABLE 30: BASIC FACTS: AFRICAN COMMISSION ON HUMAN AND PEOPLES' RIGHTS

BASIC FACTS ABOUT: The African Commission on Human and Peoples' Rights

Origin:

How was it created?

By the 1981 African Charter on Human and Peoples' Rights

When did it become operational?

1987

Composition:

How many persons is it composed of?

11

Are these persons independent experts or state representatives?

Independent experts

Purpose:

General objective

To promote and protect human and peoples' rights in Africa

Functions

  • Examination of state reports (Article 62, ACHPR)
  • Monitoring (Article 45, ACHPR)
  • Fact-finding (Articles 45 and 58, ACHPR)
  • Receiving communications, including from states (Article 47, ACHPR) and from individuals (automatic) (Article 55, ACHPR)

 

TABLE 31: BASIC FACTS: AFRICAN COMMITTEE OF EXPERTS ON THE RIGHTS AND WELFARE OF THE CHILD

BASIC FACTS ABOUT: The African Committee of Experts on the Rights and Welfare of the Child

Origin:

How was it created?

By the entry into force of the African Charter on the Rights and Welfare of the Child, Nov 29 1999

When did it become operational?

Due to meet April 29th-2nd May 2002

Composition:

How many persons is it composed of?

11

Are these persons independent experts or state representatives?

Independent experts

Purpose:

General objective

To promote and protect the rights and welfare of children as enshrined in the Charter

Functions

  • Examination of state reports (Article 43, ACRWC)
  • Monitoring (Article 42, ACRWC)
  • Fact-finding (Articles 42 and 45, ACRWC)
  • Receiving communications, including from states (Article 44, ACRWC) and from individuals and NGOs (automatic) (Article 44, ACRWC)
  • Standard setting (Article 42, ACRWC)

 

5.3.1. Reporting Mechanisms

5.3.1.1. African Commission on Human and Peoples' Rights

5.3.1.1.1. FUNCTIONS

The African Commission can:

See Part IV, Chapter 2.3. for an indication of how state reporting procedures work.

5.3.1.1.2. SPECIFIC TIPS

Any application for observer status should be submitted in writing and should include: the organisation's constitution, and information on its structure, leadership, membership and activities. It would be useful also to include copies of any publications or activity reports. A rapporteur is assigned to the application and makes a recommendation to the African Commission on whether or not to grant the status.

5.3.1.2. The African Committee of Experts on the Rights and Welfare of the Child

5.3.1.2.1. FUNCTIONS

The African Committee will be able to:

See Part IV, Chapter 2.3. for an indication of how state reporting procedures work.

5.3.1.2.2. SPECIFIC TIPS

5.3.1.3. Special Rapporteur on Extra-Judicial Executions in Africa

TABLE 32: BASIC FACTS: SPECIAL RAPPORTEUR ON EXTRA-JUDICIAL EXECUTIONS IN AFRICA

BASIC FACTS ABOUT: The Special Rapporteur on Extra-Judicial Executions in Africa

Origin:

How was it created?

By a decision of the Commission in 1994

When did it become operational?

1995

Composition:

How many persons is it composed of?

1

Are these persons independent experts or state representatives?

Independent expert (member of Commission)

Purpose:

General objective

To examine the occurrence of extra-judicial killings in Africa with a special focus on restitution and impunity

Functions

  • Monitoring
  • Fact-finding

The Special Rapporteur on Extra-Judicial Executions in Africa is able to exercise its functions in relation to all States Parties to the ACHPR.

The SR can:

Main areas of concern to the SR include:

5.3.1.4. Special Rapporteur on Prisons and Condition of Detention in Africa

TABLE 33: BASIC FACTS: SPECIAL RAPPORTEUR ON PRISONS AND CONDITIONS OF DETENTION IN AFRICA

BASIC FACTS ABOUT: The Special Rapporteur on Prisons and Conditions of Detention in Africa

Origin:

How was it created?

By a 1996 resolution of the African Commission on Human and Peoples' Rights

When did it become operational?

1996

Composition:

How many persons is it composed of?

1

Are these persons independent experts or state representatives?

Independent expert

Purpose:

General objective

To examine situations of persons deprived of their liberty within the territories of States

Functions

Monitoring

Fact-finding

You may also wish to address your complaint to this mandate if you are dealing with a case of someone who has died in custody. For further detailed guidance see The Torture Reporting Handbook by Camille Giffard. (For details of how to obtain a copy see Appendix II)

5.3.2. Complaint Procedures

5.3.2.1. The African Commission on Human and Peoples' Rights

TABLE 34: PRACTICALITIES OF USING INDIVIDUAL COMPLAINT PROCEDURE: ACHPR

PRACTICALITIES OF USING INDIVIDUAL COMPLAINT PROCEDURE: African Charter on Human and Peoples' Rights

Who can bring a case under this procedure?

Any person or NGO who can provide sufficiently precise details of an incident to enable its investigation - it does not necessarily have to be either the victim or his/her family, in recognition of the practical difficulties involved in the African context

Is there a time limit for bringing an application?

The application should be made within a reasonable time, but the Commission interprets this very generously

Can you bring a case under this procedure if you have already brought one under another procedure concerning the same set of facts?

No

Do you need legal representation?

No, but it is permitted

Is financial assistance available?

No

Are amicus briefs accepted?

Any information that can assist the Commission may be received, but the confidentiality of the procedure must be respected by all.

Who will know about the communication?

The identity of the author may be kept confidential if requested

How long does the procedure take?

There were long delays in initial cases, but the procedure now takes about 18 months to 2 years

What measures, if any, can the mechanism take to assist it in reaching a decision? e.g. fact-finding hearings; on-site visits; written pleadings; oral hearings; other.

Written pleadings; oral hearings; on-site visits in cases involving groups of complainants

Are provisional or urgent measures available?

Yes

 

TABLE 35: BASIC CHRONOLOGY OF INDIVIDUAL COMPLAINT PROCEDURE: ACHPR

BASIC CHRONOLOGY OF: Individual Complaint Procedure - ACHPR

Communication received from an individual or NGO Further information may be requested by the Secretariat

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If there is sufficient information, the communication is transmitted to the Government - the name of the author is not disclosed if anonymity has been requested

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Both parties are invited to submit their comments on admissibility

If there is insufficient information to indicate that a possible violation may have occurred, the communication may not be transmitted to the Government at all

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The Commission considers the admissibility of the case. If declared admissible, the Commission proceeds to consideration of the merits

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The Commission makes itself available to the parties to assist in reaching a friendly settlement

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In order to examine the merits, both parties must provide their observations on the matter. This often involves an oral hearing before the Commission

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The Commission reaches a decision on whether or not there has been a violation of the Charter - its consideration of the merits takes place in private

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The Commission continues to work with the parties to assist with implementation, but there is no formal enforcement mechanism and it relies essentially on the OAU for enforcement

 

5.3.2.2. What are the admissibility requirements?

A communication will be declared inadmissible if:

5.3.2.3. Specific tips

5.3.2.4. African Committee on the Rights and Welfare of the Child

At the current time the procedures for taking complaints have not been established by this body. It is clear that communications can be received from any person, group or non-governmental, by the OAU, by a Member State, or the UN, on ANY matter covered by the Charter. (Article 44)

The Charter states that every communication should contain the name and address of the author "which will be treated in confidence". (Article 44 (1))

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5.4. Other Regions

There are currently no other regions that have established formal procedures to consider allegations of human rights violations, although many are beginning to devote increasing interest to human rights in general. The years to come may well see a growth in the number of international bodies able to consider allegations, and it is probable that any new regional bodies will be based on the well-established, tried and tested procedures described in connection with Europe, the Americas and Africa.

In the meantime, it is important not to be discouraged by the absence of international remedies close to home - the UN bodies are subject to no geographical limitations and can examine situations all over the world. Check which treaties your state is a party to, and remember that the non-treaty procedures can examine the human rights situation in any state which is a member of the UN.

 

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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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