State’s Duty to Protect through Prosecution

Justice

The right to security is more than a right of restraint: it requires the State to put in place systems to defend the security rights of citizens, in the form at the very least of… a criminal justice system (Sandra Fredman, 2007). This implies that, by exercising due diligence the State must ‘undertake appropriate measures to prevent and repress the injurious acts’ of its own agents and those of non-state actors’.

The duty to protect through prosecution entails a threefold action on the part of the State. This includes the duty to investigate the violations, the duty to punish the perpetrators of violations, and the duty to provide remedies to the victims or their families.

Not all international human rights instruments explicitly provide for a duty to prosecute human rights abuses. The Convention on the Prevention and Punishment of the Crime of Genocide (The Genocide Convention) and the Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment (The Convention Against Torture) are the only ones containing the most explicit obligations to investigate and punish specific human rights crimes such as genocide and torture.

In contrast, the most comprehensive human rights treaties, particularly the ICCPR, do not explicitly enjoin States Parties to punish violations of the rights they ensure. However, some monitoring bodies and other authorities have interpreted such treaties as requiring States Parties generally to investigate and punish perpetrators of serious violations of physical integrity. Such duties derive from the States Parties’ ‘affirmative obligation to ensure rights set forth in these Conventions.’

Concerning the duty to investigate violations, international practice has shown that due diligence comes into play. The UN Special Rapporteurs, Rodley and Ndiaye have noted the following regarding Colombia: ‘Although impunity affects the entire judicial branch, the greatest problems occur during the investigatory phase… Because of the high number of crimes committed in the country, its task is particularly difficult. In many parts of the national territory the victims themselves or witnesses prefer to remain silent for fear of reprisals or react to the violations by moving to another region, thus making the investigators’ work considerably more difficult’.

In addition, the European Commission on Human Rights suggested, in Yasa v. Turkey, that the due diligence standard does not necessarily require states to successfully conduct the investigation and the actual prosecution of violators of human rights. In the same perspective, the European Court of Human Rights held, in Kaya v. Turkey, that the due diligence standard requires states to start an investigation of alleged violations and ensure its effectiveness.

Carlos Nino contends that, notwithstanding the deterrent effect that they are meant to produce, prosecutions may have ‘some limit and must be counterbalanced with the aim of preserving the democratic system.’ He further argues that ‘factual context may frustrate a government’s effort to promote the prosecution of persons responsible for human rights abuses, except at the risk of provoking further violence and a return to non-democratic rule.’

Such factual context had dictated the agreement reached by the different parties to the Inter-Congolese negotiations held in South Africa in 2002. They aimed to end the civil war and reunify the country. One of the outcomes of the negotiations was a political agreement to grant amnesty to former rebels, some of whom had committed violations of human rights.

Moreover, after the ‘transitional period’, the elected government faced another rebellion between 2007 and 2008 in the North Kivu province. Apart from military-related infractions, human rights violations were also perpetrated during that period. In a quest of a solution to this problem the Government had a dilemma in that there was a priority of bringing the rebellion to an end and restore peace and security in that region. On the other hand, there was a necessity of instituting prosecutions against suspected rebels for human rights violations, with the risk of jeopardising the peace process. Ultimately, the Government chose ‘peace’ to the detriment of ‘justice’.

[Please check my article entitled, ‘State Responsibility and the Right to Personal Security in the DRC: A Human Rights Law Perspective’, for references.]