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CGHR Research Theme "The Right to Life": Accountability for violations of the right to life

last modified Aug 23, 2017 12:31 PM
Ever since beginning of CGHR’s collaboration with the mandate of the Special Rapporteur on extrajudicial, summary or arbitrary executions, which has been grouped under the theme on the “right to life”, research has underlined the significance of accountability. Whether thinking about responses to threats to the safety of journalists, the potential capabilities of ICTs for human rights advocacy, or, perhaps at greatest length, as part of its survey of Unlawful Killings in Africa, CGHR research has drawn attention to the fact that the failure of the State to pursue accountability for a potential violation of the right to life is itself a violation of that right.

Building upon this research, one of the Special Rapporteur’s longest-running projects was his involvement in the process to revise the “Minnesota Protocol”, the common name given to the UN Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary or Summary Executions. This document, adopted by the UN in 1991 had remained the principal reference point for standards concerning forensic investigations of those deaths suspected to involve the State.  However, written as it was before the time when developments such as DNA sequencing or digital photographic had become mainstream, it had grown dated.

In a large-scale project running from 2014-16 the Special Rapporteur, along with the Office of the High Commissioner for Human Rights (OHCHR) and the UN Office on Drugs and Crime (UNODC), convened two expert drafting group to revise the document, along with a much larger Advisory Panel of eminent experts in both forensic science and international law. These experts, along with two stakeholder consultations, ensured that a broad a range of possible views were included in the process as possible. The result, the Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016) was finalised last year, but only published (in advance e-version) by OHCHR in May.

The advance e-version of the revised Minnesota Protocol can be found here

During his secondment at OHCHR, CGHR Research Associate Thomas Probert played an important role in the convening and deliberations of the Working Groups that undertook the revision. He will now continue to work with the Office, the Centre for Human Rights in Pretoria, the Geneva Academy and others to devise ways of ensuring the Minnesota Protocol reaches those who have greatest need or use for it.

The Right to Life Document

 

In the meantime, linking this work on investigative mechanisms with another project he has been coordinating at the University of Pretoria, Dr Probert has recently published a Policy Brief with the Institute for Justice and Reconciliation, a Cape Town-based NGO that focusses on international and transitional justice across Africa. The Policy Brief, entitled ‘Vehicles for accountability or cloaks of impunity?’ examines the role that national commissions of inquiry can play as accountability mechanisms following violations of the right to life. It is based on research conducted by a team based at the University of Pretoria that has collated information about more than 60 commissions of inquiry investigating such violations in Africa over the past 25 years, and which has conducted on-site research visits in order closely to consider six of them, in Chad, Burkina Faso, Kenya, Malawi, South Africa and Nigeria.

Drawing upon the African Commission’s General Comment No.3 on the Right to Life (Article 4) (2015), as well as the revised Minnesota Protocol, Dr Probert highlights that the duty to investigate any potentially unlawful death includes all cases where the state has caused a death, either by act or omission (for example, where law enforcement officers used force that may have contributed to the death), or where it is alleged or suspected that it did so.

He demonstrates that as part of a state’s response to an alleged or suspected violation, a properly constituted national commission of inquiry can sometimes play a helpful role in fulfilling the state’s duty to investigate. But, like any other investigative mechanism, a commission of inquiry needs to meet various standards, including those of promptness, effectiveness, thoroughness, independence, impartiality, and transparency.

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