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INVESTIGATION and PROSECUTION of KILLINGS This INVESTIGATION AND PROSECUTION OF KILLINGS This chapter of the Handbook collects the observations and recommendations of the UN Special Rapporteur with respect to States’ investigation and prosecution of killings. A State’s obligation to ensure the right to life includes a duty to promptly and effectively investigate alleged violations of that right, whether by the State itself or by non-state actors. The material in this chapter addresses the various governmental institutions necessary to carry out this obligation, including police, prosecutors and the judiciary. Accountability for violations of the right to life requires the consistent functioning and cooperation of all of these institutions. This chapter also collects the Special Rapporteur’s observations regarding the efficacy of mechanisms for investigating alleged violations of the right to life in special contexts, such as in armed conflict and societies in transition. Finally, the Special Rapporteur discusses how international assistance can complement domestic efforts to investigate and prosecute killings. A. OBLIGATION TO INVESTIGATE, PROSECUTE AND PUNISH EXTRAJUDICIAL EXECUTIONS .............................................................................................................................. 3 B. THE CRIMINAL JUSTICE SYSTEM ................................................................................ 12 C. POLICE INVESTIGATIONS .............................................................................................. 29 D. PROSECUTIONS .................................................................................................................. 38 E. THE JUDICIARY .................................................................................................................. 42 F. COMMISSIONS OF INQUIRY ........................................................................................... 50 G. WITNESS PROTECTION PROGRAMS ........................................................................... 67 H. POLICE INTERNAL AFFAIRS .......................................................................................... 85 I. OMBUDSMEN ........................................................................................................................ 89 J. NATIONAL POLICE COMMISSIONS .............................................................................. 92 K. POLICE OVERSIGHT BOARDS ....................................................................................... 96 L. CORONERS ........................................................................................................................... 97 M. RELATIONSHIP BETWEEN POLICE AND PROSECUTORS .................................... 98 N. CORRUPTION AND IMPUNITY ..................................................................................... 103 O. POOR FORENSICS AND IMPUNITY ............................................................................. 110 P. TRANSPARENCY AND CRIMINAL JUSTICE SYSTEMS .......................................... 112 Q. CRIMINAL JUSTICE SYSTEM AND THE PROSECUTION OF MILITARY OFFICIALS ............................................................................................................................... 114 R. INVESTIGATIONS AND PROSECUTION ISSUES ARISING IN ARMED CONFLICT ............................................................................................................................... 122 Military justice systems ........................................................................................................ 122 Accountability for civilian deaths ........................................................................................ 135 Command responsibility ...................................................................................................... 139 Transparency in armed conflict .......................................................................................... 142 Armed opposition groups and their “justice” systems ...................................................... 149 Prosecutions of private contractors and civilian government employees ........................ 153 S. TRANSITIONAL JUSTICE AND EXTRAJUDICIAL EXECUTIONS ........................ 157 Amnesties and extrajudicial executions .............................................................................. 157 Obligation to preserve evidence ........................................................................................... 157 T. INDEPENDENT OR EXTERNAL AND INTERNATIONAL INVESTIGATIONS AND MONITORING ......................................................................................................................... 158 Role of the Office of the High Commissioner for Human Rights ..................................... 158 National commissions on human rights .............................................................................. 160 Non-governmental organisations ......................................................................................... 165 The International Criminal Court ...................................................................................... 166 Ceasefire monitoring ............................................................................................................ 169 2 A. OBLIGATION TO INVESTIGATE, PROSECUTE AND PUNISH EXTRAJUDICIAL EXECUTIONS Report of the Special Rapporteur to the Human Rights Council (A/HRC/14/24, 20 May 2010, ¶¶ 53-55): 53. Impunity is often a central cause of continued killings. In many of the countries visited, impunity is maintained through problems at every level of the criminal justice system. Thus, police may be unwilling or unable to carry out an independent investigation of the killing. The State may lack forensic capacity to conduct investigations. Crimes scenes may not be secured. The police may fail to refer cases to the prosecution service. Prosecutors may be corrupt or poorly trained. Witnesses may justifiably be unwilling to testify because of inadequate witness protection programmes. Judges’ dockets may be so overcrowded that cases are delayed for years, or judges may also take bribes to delay cases or absolve perpetrators. If perpetrators are convicted, prison systems may be insecure or susceptible to corruption, resulting in prisoners escaping or bribing their way out of detention. 54. In response to these challenges, specific studies have addressed: (a) The need for external oversight of the police, including a study of the various forms of oversight, and the applicable law and principles (A/HR/14/24/Add.8); (b) The obstacles to effective national commissions of inquiry, and the requirements for the creation and implementation of effective commissions;22 (c) Best practices in witness protections programmes (A/63/313); (d) How States can make their military justice systems compatible with human rights standards (A/63/313). 55. Mission reports have also addressed the important role of international and nongovernmental actors, including NGOs, national human rights institutions, OHCHR, and the International Criminal Court, in promoting accountability. Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions (E/CN.4/2006/53, 8 March 2006, ¶¶ 33-43): 33. It is of continuing concern that States often fail to comply with their obligation to effectively investigate, prosecute, and punish violations of the right to life in situations of armed conflict and occupation. This failure has taken a number of forms. Policies on investigating deaths have permitted unjustifiable exceptions and have often failed to provide for impartiality and independence. During armed conflicts, even grave crimes such as murder are often leniently punished when committed by members of the armed forces. Trends in the investigation, prosecution, and punishment of commanding officers have been even less encouraging. Impunity for individuals has not been the only failure. In some cases, a strategic reluctance to engage in “body counts” may have impeded full consideration of how the impact of armed conflict on civilian populations can be minimized. Efforts at monitoring the consequences of choices of 3 weapons and tactics on the incidental loss of civilian life generally remain ad hoc, leaving compliance with requirements of proportionality and precautionary measures under-examined.1 34. These practices threaten to roll back 50 years of progress in subjecting armed conflict to the rule of law. The Geneva Conventions of 12 August 1949 first established the legal obligation of States to investigate alleged unlawful killings and to prosecute their perpetrators. Elaborating the general obligation to “respect and to ensure respect” for humanitarian law,2 the Geneva Conventions mandated the penal repression of violations. In particular, when a State receives allegations that someone has committed or ordered a grave breach - such as the “wilful killing” of a protected civilian3 - the State is then legally obligated to search for him and either try him before its own courts or extradite him to another State that has made out a prima facie case.4 Should he be found guilty, the State must impose an “effective penal sanction[]”.5 However, gaps remained in this accountability regime. In international armed conflicts, some individuals were excluded from protection by their nationality.6 In non-international armed conflicts, no mechanism for penal repression was provided.7 The scope of legal protection has, however, steadily improved. Since the Geneva
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