The 50th Session of the Human Rights Council

13 June – 8 July 2022

Item 3: Interactive Dialogue with the Special Rapporteur on extrajudicial, summary or arbitrary executions

22nd June 2022

By Gian Heimann / GICJ

Executive Summary

The 15th meeting of the 50th Regular Session of the Human Rights Council (HRC) considered the report of Mr Morris Tidball-Binz, Special Rapporteur on extrajudicial, summary or arbitrary executions (A/HRC/50/34), during an Interactive Dialogue. With his report, Mr Tidball-Binz, himself being a forensic doctor, set the agenda on global standards on forensic sciences and death investigation systems. He explained that with little investment, medico-legal death investigations can achieve significant outcomes in justice and public health. However, he also warned the HRC that at the present day, there is insufficient capacity at the global level to conduct such investigations.

The report called “Medico-legal death investigations” (A/HRC/50/34), presents the findings of a study the Special Rapporteur conducted on the global state of forensic science and death investigation systems. The report elaborates on the importance of the duty to investigate death, stating that a failure to conduct a proper investigation is, in itself, a violation of the right to life. In the report, global shortcomings and difficulties concerning the issue, such as a lack of independence of forensic doctors and staff, are presented. Lastly, the report contains clear and practical recommendations to the States.

During the Interactive Dialogue, many States thanked the Special Rapporteur for his report and expressed agreement with the importance of international standards and best practices of medico-legal death investigation systems. States also used the opportunity to draw attention to violations of the right to life in different regions of the world. Others shared national experiences in forensic science and investigation systems in the dealing and accounting of past violence such as armed conflicts. Finally, NGOs condemned numerous countries that know practices of extrajudicial, summary, or arbitrary executions.

Geneva International Centre for Justice (GICJ) would like to thank the Special Rapporteur for his report and support his effort to establish minimum standards and best practices for a worldwide medico-legal death investigation system. We are deeply shocked by the abhorrent practices of extrajudicial, summary, and arbitrary executions. These should under no circumstances, remain with impunity.

 

Background

Forensic investigations are the starting point of any investigation of potentially unlawful death. Through them, States can achieve significant outcomes in promoting human rights, justice, and public health with relatively little investment. Beginning in the mid-80s, human rights defenders attempted to draft guidelines that provided practical assistance to the investigation of suspicious deaths. Later a medical protocol was prepared by a group of legal and forensic experts coordinated by the Minnesota International Lawyers Committee for Human Rights (now The Advocates for Human Rights). In 1991, the UN adopted the Minnesota Protocol with the official title being the UN Manual on the Effective Prevention of Extra-legal, Arbitrary and Summary Executions. In 2016, the former Special Rapporteur on extrajudicial, summary or arbitrary executions, Mr Christof Heyns, whom the latest report was dedicated to, in collaboration with the Office of the High Commissioner of Human Rights (OHCHR) and the United Nations Office on Drugs and Crime (UNODC), led the process of revising the Minnesota Protocol.

In April 2021, Morris Tidball-Binz was appointed as Rapporteur on extrajudicial, summary or arbitrary executions. Having a medical background as well as a specialisation in forensic science, he dedicated the first year of his mandate to an exhaustive study on the challenges, problems and opportunities medico-legal death investigation systems face across the world. The study was conducted in collaboration with Monash University in Australia, where the Special Rapporteur is an Adjunct Professor and included interviews with over 60 directors of forensic services and forensic experts from countries all around the world. Additional consultations were held with regional networks of medico-legal and forensic services and intergovernmental and international organisations. The findings of the study were presented to the Human Rights Council in Mr Morris Tindball-Binz’ first report.

 

Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions

The report called “Medico-legal death investigations” (A/HRC/50/34), presents the findings of the Special Rapporteur’s call for submissions from States and representatives of academia and civil society on the state of knowledge and implementation of the Minnesota Protocol.  In the report, he elaborates on the importance of the State duty to investigate death, presents structures of medico-legal death investigation systems globally, discusses shortcomings, difficulties and best practices and formulates recommendations to the States. Alarmingly, the Special Rapporteur considers that, with few exceptions, there is insufficient capacity at the global level to conduct investigations into potentially unlawful deaths.

Firstly, the Special Rapporteur reiterates the Human Rights Committees finding that the duty to investigate potential violations of the right to life is implicit in the obligation to protect life (CCPR/C/GC/36). Therefore, the right to life cannot be considered fully protected unless thorough and effective investigations are conducted into any situation in which it may have been violated. Thus, he concludes that a failure to conduct a proper investigation is regarded as a violation of the right to life.

According to the report, medico-legal death investigation systems around the world differ mainly by the responsible entity and the political institution they are embedded in. For example, they may be based within special-purpose public institutions, police forces, the military, hospitals, universities, or contracted providers and may be overseen by ministries of health, justice, the interior or education. The discretion of investigative authorities to decide whether an investigation ought to be carried out presents a major challenge with regards to the structure of death investigations: If the authorities have a wide discretion, this may negatively impact the duty to investigate all potentially unlawful deaths.

The report continues to discuss the crucial role of forensic doctors in the conduction of medico-legal death investigations. Investigations should be conducted by forensic specialists with expertise in injury evaluation and anatomical pathology. However, it is stated that overall, research and postgraduate training in forensic science, including career development opportunities for students and practitioners, are very limited. Generally, forensic doctors rarely have the same status as other medical specialists, because they are incorrectly perceived to contribute little to the saving of lives.

Regarding all the previously mentioned aspects, the report assesses various shortcomings and difficulties of medico-legal death investigation systems senior forensic actors mentioned in the conducted interviews. The most severe shortcoming in medico-legal death investigations lies in a lack of independence. The investigations may be compromised simply because of the organisations upon which they must rely for funding or to which they must report, such as the police.

Moreover, medico-legal death investigation systems are often poorly funded. Many towns and regions beyond major cities lack properly resourced medico-legal death investigation systems. Many countries have an insufficient number of forensic doctors. Legislation governing medico-legal death investigations is often inadequate to comply with the Minnesota Protocol. Written autopsy reports might not be produced, or not to a standard that enables review. In resource-poor settings, mortuaries often lack essential installations and resources, such as electricity, running water, and operational refrigerated storage for bodies. The lack of basic personal protective equipment may leave staff at risk of disease and infection.

More towards the political end, the report notes that forensic doctors are often poorly paid. In some contexts, there may be no death investigation in cases in which the identity of the deceased is unknown. This particularly affects members of the poorest and most marginalized communities and groups, including refugees, displaced persons, and undocumented migrants. Sometimes, forensic doctors are not sufficiently protected and suffer from violence and threats. Lastly, very few medico-legal death investigation systems have institutionalised gender-perspective awareness and training programmes for their staff.

Finally, the Special Rapporteur condensed the findings of the report by providing States with clear and practical recommendations. He reiterates that the duty of States to investigate the cause and manner of any potentially unlawful death as prescribed by the Minnesota protocol, namely promptly, thoroughly, effectively, independently, impartially, and transparently, is integral to the right to life. Moreover, States must mandate that medico-legal death investigations include the duty to identify the deceased. Therefore, unidentified bodies must not be cremated or buried in mass graves. Forensic doctors should be aware of and sensitive to gender issues that may have an impact on the quality of their work. States must protect the security, safety and health of forensic doctors and ensure that they have access to properly equipped forensic medical facilities.

 

Interactive Dialogue with the Special Rapporteur

During the 15th meeting of the 50th Regular Session of the HRC, on 22nd of June 2022, the Special Rapporteur, Mr Tidball-Binz held an Interactive Dialogue on his mandate and report. He opened by addressing the general state of his mandate, informing the HRC that he noticed an increase in extrajudicial, summary, and arbitrary killings during his mandate. Numerous cases of targeted killings of journalists, environmental activists, political dissidents, representatives of minority groups and of people that have been labelled undesirable have to be accounted for. He regretted that all this was met with high rates of impunity. The Special Rapporteur also called upon the many states who still continue to use the death penalty in flagrant violation of international law. Consequently, he resumed that it is the sad reality that his mandate is as needed today, as it was 40 years ago.

The Special Rapporteur then went on to address the specific topic of his report. He explained that since beginning, the mandate on summary executions had a focus on the investigation of death cases. Therefore, they established specific human rights standards and reference guides to forensic science, like the Minnesota Protocol, which can be considered as the “gold standard” in forensic science everywhere in the world. Mr. Tidball-Binz warned the HRC that according to the study it can be asserted that the current state of forensic and medico-legal services across the world is very alarming. He finished by highlighting the set of recommendations in the report, emphasising that implementing them would require relatively little investment by States and could greatly improve the protection and promotion of everyone’s right to life.

During the Interactive Dialogue, the representative of Armenia shared his concern about the lack of accountability taken in the extrajudicial killings committed in Nagorno-Karabakh. He reiterated that numerous killings of civilian captives, including women and elderly, have never been investigated despite clear evidence. The representative reminded the HRC that the High Commissioner for Human Rights pointed out that the extrajudicial execution of Armenians by Azerbaijani armed forces may amount to war crimes and that the Special Procedure mandate holders dispatched several communications to Azerbaijan, including one on extrajudicial executions of Armenians. Thus, he asked the Special Rapporteur how accountability can be secured under such circumstances.

The representative of Pakistan drew the attention to the use of summary executions by India to silence Kashmiri dissidents who oppose the illegal demographic change of their homeland. He stated that the lack of investigation systems is even more severe in situations of occupation. He denounced India for branding Kashmiri as terrorists and thereby legitimising the extrajudicial killings of over 600 Kashmiri during the last three years.

The representative of Yemen drew the attention to acts carried out by the Houthis to members of the opposition and journalists. He claimed that the militias carry out death sentences against any person who dares to criticise their behaviour and aggression against innocent Yemeni people. The representative requested the Special Rapporteur to bring attention to these human rights violations, document them, and seek justice for victims of Houthi militias.


The representative of Palestine
highlighted one key point of the report: the failure to properly investigate death devalues life. She continued to accuse Israel to be the only State in modern history that obstructs all means of investigation for Palestinian deaths, negating the importance of Palestinian life She also condemned that Israel continues with its shocking policy of summary execution of Palestinian civilians. The representative stated that over the years Israel has opened numerous investigations into the killings of Palestinians. In most of these cases, it has closed the investigations or held mock trials or made decisions that didn’t acknowledge the gravity of the violations or crimes. The representative of Israel later responded to these accusations through their right to reply. They denied that Israel obstructs investigations or condemns anyone to death. On the contrary, he stated that Israel is a democracy and solely blames the Hamas of executing opposing groups in Palestine and Palestinian civilians, including queer people who are forced to flee to Israel.

The delegate of the European Union stated that the EU strongly condemns all cases of extrajudicial, summary, and arbitrary executions, including those by Russian armed forces in Ukraine. Such acts manifest severe violations of the right to life. He stated that the contribution of medico-legal death investigation systems to acclaim justice, the rule of law and the protection of life cannot be overstated and that the international norms and standards for medico-legal death investigation systems are clear in the view of the EU.  States have the duty to investigate the cause and manner of every potentially unlawful death promptly, independently, and transparently, without distinction of any kind.

The representative of Argentina spoke on behalf of Brazil, Chile, Costa Rica, Ecuador, Guatemala, Mexico, Panama, Peru and Uruguay and expressed gratitude for the topic of the Special Rapporteur’s report. He pointed out that it is necessary that all human rights mechanisms address the need of carrying out exhaustive investigations of every potentially unlawful death and keeping up with the principles of the Minnesota protocol. The delegate also stressed the importance of leveraging international cooperation, including South-South cooperation, which in Latin America has led to significant improvement in forensic investigation practices, as pointed out in the report. He especially agreed with the recommendation that all those participating in the investigation process should be gender sensitive.

The representative of Ukraine addressed the summary execution of innocent Ukrainian civilians, which became one of the most emblematic and tragic manifestations of savagery of the ongoing Russian aggression against Ukraine. She reported some of the worst witnessed human rights violations, as for instance the case of a civilian who was asked for cigarettes and executed because he responded he did not smoke. The representative pointed out that these executions have been confirmed by the OHCHR as well as by the commission of inquiry, yet, Russian diplomats continue to spread lies and disinformation and deny the reality, She thanked the Special Rapporteur for his attention to Russia’s abhorrent crimes and counted on his active involvement to ensure accountability.

The representative of France emphasised the importance of forensic expertise in the fight against impunity and informed the HRC that in April, France has sent a team of experts in identification and evidence gathering into Ukraine. This team of crime scene experts from the Gendarmerie National Criminal Research Institute takes concrete action to ensure that the abhorrent crimes during the atrocities do not go unpunished. The representative reiterated its political, financial and technical support for the International Criminal Court. He also supported the commitment of UNDC and OHCHR to the gender dimension in forensic investigations to prevent violence against women and girls, a support that was shared as well by the representatives of Chile, the Philippines and the USA.

The representative of Sierra Leone wished to underline the importance of the right to life and informed the HRC, that in 2021, the president of Sierra Leona fulfilled his pledge by formally abolishing the death penalty. He also highlighted the need for technical support and capacity building measures to strengthen the infrastructure in criminal justice systems in developing countries like Sierra Leone. This point was affirmed by the representative of Malawi.  She reiterated that the global south does not have access to scientific and medical technologies and therefore supported the recommendation that donors should consider funding low- and middle-income states with training and equipment. The representative of Malaysia also reported that in June 2022, Malaysia announced its decision to abolish the mandatory death penalty.

After the State delegation’s statements, the Interactive Dialogue was opened for members of civil society and non-governmental organisations (NGOs). Many of them agreed with the Special Rapporteur on the crucial importance of medico-legal death investigation systems in the fight against impunity of extrajudicial, summary, or arbitrary killings. Most of the statements focused on specific cases of violations to the right to life, condemning the countries of Azerbaijan, Brazil, Saudi Arabia, the Philippines, the USA, Bangladesh, Mexico, Myanmar and Kenya.

During his concluding observations, the Special Rapporteur consolidated the many statements by representatives and members of civil society to one question: how to improve the work of medico-legal services to guarantee that the investigation of any potentially unlawful death adheres to requirements of international law? The answer, he suggested, is found in the effective implementation of the standards that are made by predecessors of his mandate. Therefore, Mr Tidball-Binz appreciated that there was an appeal to promote better training on the implementation of the Minnesota Protocol and to implement a focal point or forensic unit within OHCHR, which could be used to support investigations and technical assistance. He was pleased to say that his mandate would be willing and able to assist in all this.

 

Position of Geneva International Centre for Justice

Geneva International Centre for Justice (GICJ) would like to thank the Special Rapporteur for his report and support his effort to establish minimum standards and best practices for a worldwide medico-legal death investigation system. We are deeply alarmed  by the abhorrent practices of extrajudicial, summary and arbitrary executions. It is of the highest priority to human rights advocacy to fight impunity of such violations and protect everyone’s right to life.  The starting point to take action against extrajudicial, summary and arbitrary executions are prompt, thorough, effective, independent, impartial, and transparent investigations into any potentially unlawful death, as prescribed by the Minnesota Protocol. We therefore endorse the Special Rapporteurs instigation for the recognition and compliance with the Minnesota Protocol and call on States to follow the recommendations presented in his most recent report.


Special Rapporteur on Summary Executions, Extrajudicial Killings, Summary Executions, Arbitrary Killings, Forensic Science, Medico-legal Death Investigations, Death Investigations, Forensic Investigation Practices, Impunity, Minnesota Protocol, International Standards, Best Practices, Right to Life, Human Rights, Justice, Geneva, geneva4justice, GICJ, Geneva International Centre For Justice

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