The Legal Duty to Investigate: Enquiring into the Enquiry

According to the Public Defender’s recent Interim Report, 75 civilians were killed during the Tivoli “incursion” of 2010. A civilian was also killed by security forces in a related raid on a Red Hills residence. Of the 76 killed, the Public Defender is investigating complaints that 44 are instances of extra-judicial killings, but to date no one has been charged in relation to the operation in Tivoli. This is a human rights issue of the utmost gravity as it raises serious concerns about the effective protection of the right to life in Jamaica.

The Public Defender has recommended, among other things, that a Commission of Enquiry be appointed to conduct a judicial investigation into what is described as the greatest loss of life in a single security forces operation in independent Jamaica. While some have asked whether we can afford to have such an Enquiry, the Public Defender has asked, can we afford not to? To contribute to this debate, below is an overview of the content and scope of the duty to investigate alleged violations of the right to life under international law.

The relevant international legal framework can be found in the International Covenant on Civil and Political Rights (“ICCPR”) and the American Convention on Human Rights (“Convention”), both of which have been ratified by Jamaica. Although the legal duty of States Parties to investigate alleged violations of the right to life is not spelled out in these treaties, it has been established by human rights bodies that the duty to investigate is an inherent aspect of other express obligations in these treaties.

Article 1(1) of the Convention and Article 2 of the ICCPR impose an express obligation on States Parties to not only “respect” the Convention/Covenant rights, including the right to life, but also to “ensure” the free and full exercise of these rights. Article 25 of the Convention also imposes an obligation to provide effective judicial protection to Convention rights and Article 8 imposes an obligation to guarantee a fair trial in the determination of these rights.

The Inter-American Commission of Human Rights (“Commission”) and the Inter-American Court of Human Rights (“Court”) have found that these provisions create a positive obligation for States Parties to undertake thorough, prompt and impartial investigations into allegations of extra-judicial executions and to prosecute and punish those responsible. As reasoned by these bodies, failure to take these steps would create an environment of impunity. An environment of impunity would in turn breed the conditions for further violations and this would be contrary to the duty to respect and ensure the right to life.

The obligation to investigate and punish is therefore an essential aspect of the rule of law and should be considered as both a legal duty and moral imperative. In fact, the Court has on many occasions found States to be in breach of its obligation to guarantee the right to life due to an inadequate investigation of a death incident involving security forces.

To be clear, a breach of the duty to investigate does not arise merely because an investigation does not lead to a satisfactory result. However, as the Commission points out in the Jamaican case of Michael Gayle, it must be demonstrated that the investigation meets the thorough, prompt and impartiality standard such that “any failure to produce sufficient evidence to lay criminal charges was not the product of mechanical implementation of certain procedural formalities without the State genuinely seeking the truth.”

In determining whether the investigation into the death of Michael Gayle complied with the requirements of the Convention, the Commission considered the U.N. Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions (“UN Principles”) as well as the Model Protocol for a legal investigation of extra-legal arbitrary and summary executions associated with that instrument (“Model Protocol”). It is therefore worth reproducing some of the provisions of these instruments in our consideration of the Public Defender’s recommendation.

Article 9 of the U.N. Principles requires a thorough, prompt and impartial investigation of all cases of extra-legal, arbitrary and summary executions, including cases where complaints by relatives or other reliable reports suggest unnatural death. The purpose of the investigation under Article 9 shall be to determine the cause, manner and time of death, the person responsible, and any practice which may have brought about that death.

Article 9 further provides that the investigation shall include an adequate autopsy, collection and analysis of all physical and documentary evidence and statements from witnesses. The investigation shall distinguish between natural death, accidental death, suicide and homicide.

Article 10 of the U.N. Principles provides that the investigative authority shall have the power to obtain all the information necessary to the enquiry and the persons conducting the investigation shall have at their disposal all the necessary budgetary and technical resources for effective investigation.

Article 11 of the U.N. Principles provides that in cases in which the established investigative procedures are inadequate because of lack of expertise or impartiality, because of the importance of the matter or because of the apparent existence of a pattern of abuse, governments should pursue investigations through an independent commission of enquiry or similar procedure.

Therefore, as Jamaica enquires into the enquiry to determine whether it is in fact necessary, we should consider whether the investigative procedures that are currently in place are capable of carrying out the type of investigation that meets international standards of compliance or whether, because of the importance of the matter or a pattern of abuse, such an Enquiry would be desirable. If we agree that such an Enquiry is desirable and necessary, we would then need to determine very carefully its terms of reference to ensure that, at the very least, the purpose indicated in Article 9 of the U.N. Principles is fulfilled. Most importantly, the Government would have to ensure that such an Enquiry is not merely a “mechanical implementation of certain procedural formalities without the State genuinely seeking the truth.”

This article is for general information purposes only and does not constitute legal advice.

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