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The Investigation and Prosecution of Potentially Unlawful Death a Practitioners' Guide

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The Investigation and Prosecution of Potentially Unlawful Death a Practitioners' Guide 7 The Investigation and Prosecution of Potentially Unlawful Death A Practitioners’ Guide Migration and International Human Rights Law 14 Composed of 60 eminent judges and lawyers from all regions of the world, the International Commission of Jurists promotes and protects human rights through the Rule of Law, by using its unique legal expertise to develop and strengthen national and international justice systems. Established in 1952 and active on the five continents, the ICJ aims to ensure the progressive development and effective implementation of international human rights and international humanitarian law; secure the realization of civil, cultural, economic, political and social rights; safeguard the separation of powers; and guarantee the independence of the judiciary and legal profession. ® The Investigation and Prosecution of Potentially Unlawful Death - A Practitioners’ Guide © Copyright International Commission of Jurists, June 2019 The International Commission of Jurists (ICJ) permits free reproduction of extracts from any of its publications provided that due acknowledgment is given and a copy of the publication carrying the extract is sent to its headquarters at the following address: International Commission of Jurists P.O. Box 91 Rue des Bains 33 Geneva Switzerland With the support of the Ministry of Foreign Affairs of Finland The Investigation and Prosecution of Potentially Unlawful Death Practitioners’ Guide No. 14 Acknowledgments This Practitioners Guide was researched and written by Stuart Casey-Maslen, Honorary Professor, Centre for Human Rights, University of Pretoria, with assistance from ICJ Senior Legal Adviser and Coordinator of the ICJ’s Global Accountability Initiative Kings ley Abbott, both of whom were involved in the drafting of the Minnesota Protocol on the Inv estigation of Potentially Unlawful Death (2016) , which lies at the heart of this Guide. Alex Conte of the ICJ edited the text and provided legal and policy review. The Guide was produced under the ICJ’s Global Redress and Accountability Initiative in collaboration with Centre for Human Rights at the University of Pretoria. It was made possible by the financial support of the Ministry for Foreign Affairs of Finland, for which the ICJ is grateful. INVESTIGATION AND PROSECUTION OF UNLAWFUL DEATH i Table of Contents Table of Abbreviations ....................................................... v Terminology under the 2016 Minnesota Protocol .................. vi 1. Introduction ........................................................ 14 1.1 The role and content of the Minnesota Principles ......... 15 1.2 Revision of the Minnesota Protocol ............................ 18 1.3 Overview of the changes between the original and revised Protocols .................................................... 22 1.4 The Minnesota Protocol and its relevance for legal practitioners ........................................................... 26 2. Potentially Unlawful Death and the Duty to Investigate .......................................................... 29 2.1 The right to life and the triad of obligations ................ 29 The duty to respect the right to life ....................... 30 The duty to protect the right to life ....................... 31 The duty to fulfil the right to life ........................... 32 2.2 The substantive component of the right to life: the prohibition on arbitrary deprivation of life .................. 33 The status of the prohibition on arbitrary deprivation of life ................................................ 33 The nature of the prohibition on arbitrary deprivation of life ................................................ 34 Application in a situation of armed conflict ............. 37 Unlawful death and international crimes................. 38 2.3 The procedural component of the right to life: duty to investigate ............................................................. 42 The triggering of the duty to investigate ................ 42 Application in a situation of armed conflict ............. 44 2.4 Application of the duty to investigate to non-State actors .................................................................... 45 2.5 The right to remedy and reparation ........................... 47 The right to an effective remedy ........................... 47 The right to reparation......................................... 48 3. The Duties of States to Investigate and Prosecute ............................................................. 51 3.1 The necessary character of the investigation .............. 51 Treaty law .......................................................... 51 ii PRACTITIONERS’ GUIDE No. 14 Soft law ............................................................. 52 Effectiveness ...................................................... 53 Independence and impartiality .............................. 56 Promptness ........................................................ 57 Transparency ..................................................... 58 3.2 The duty to prosecute ............................................. 60 3.3 The duty to prevent recurrence................................. 62 Guarantees of non-repetition ................................ 62 Action to combat impunity ................................... 63 The problem of military courts .............................. 66 4. The Rights of Victims’ Families and of Witnesses . 69 4.1 The right to protection ............................................. 69 Protection of whistle-blowers ................................ 71 4.2 The right of victims’ families to remedies and reparation .............................................................. 72 The right to the truth........................................... 72 The right to justice .............................................. 73 The right to reparation......................................... 75 5. General Principles of Forensic Investigation of Potentially Unlawful Death .................................. 78 5.1 The key components of an effective investigation ........ 78 Investigation strategy.......................................... 79 Family liaison ..................................................... 81 The development of a victim profile ....................... 82 Financial issues ................................................... 84 Finding, interviewing, and protecting witnesses ...... 84 Elaborating a chronology of events ........................ 88 6. Forensic Investigation of Potentially Unlawful Death: Types of Evidence and the Chain of Custody ................................................................ 90 6.1 Types of evidence ................................................... 90 Biological evidence .............................................. 91 Digital evidence .................................................. 92 Documentary evidence ........................................ 93 Physical evidence ................................................ 93 6.2 The chain of custody ............................................... 95 INVESTIGATION AND PROSECUTION OF UNLAWFUL DEATH iii 7. Forensic Investigation of Potentially Unlawful Death: Crime Scene Management and Victim Identification ....................................................... 97 7.1 Crime scene management ........................................ 97 7.2 Recovery of bodies and human remains ................... 102 7.3 Identification of bodies and human remains ............. 103 8. Forensic Investigation: The Autopsy .................. 106 8.1 The conduct of the autopsy .................................... 107 Concluding the cause of death ............................ 110 The autopsy report ............................................ 111 9. The Effective Prosecution of Individuals Responsible for Unlawful Death ......................... 113 9.1 Fair trial standards under international law............... 113 9.2 Guidance for prosecutors ....................................... 116 9.3 The role and rights of victims ................................. 118 The right of victims in the context of the International Criminal Court ............................... 122 10. Specific Guidance for Prosecutors and Defence Lawyers ............................................................. 123 10.1 Guidance for prosecutors ....................................... 123 Role of the prosecutor ....................................... 123 Reviewing the investigation case file.................... 124 10.2 Guidance for defence lawyers ................................. 129 Strategic litigation ............................................. 137 11. Potentially Unlawful Death in Armed Conflict..... 139 11.1 Classification of armed conflict under international law ..................................................................... 139 International armed conflict ............................... 140 Non-international armed conflict ......................... 141 Armed conflicts co-existing over the same territory 142 11.2 Geneva Law ......................................................... 142 11.3 Hague Law ........................................................... 145 What amount to acts in the conduct of hostilities? . 145 The principle of distinction ................................. 147 The principle of proportionality in attack .............. 150 11.4 The duty under IHL to investigate deaths occurring during the conduct of hostilities .............................. 153 iv PRACTITIONERS’ GUIDE No. 14 Annex: The Detailed Guidelines
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