Reporting Killings as Human Rights Violations Handbook How to document and respond to potential violations of the right to life within the international system for the protection of human rights By Kate Thompson and Camille Giffard
Handbook links:	website home page
Table of Contents - Search - Part I: Essential Reading - Part II: Identifying a Potential Violation - Part III: How to Document Allegations of Unlawful Killings - Part IV: Responding to the Information Collected - Part V: Where can you Seek Further Help? - Appendices
IV. Responding to the Information Collected: section links...
1. Introduction to Possible Courses of Action - 2. What You Should Know About International Reporting Mechanisms and How To Use Them - 3. What You Should Know About International Complaint Procedures and How To Use Them - 4. The Mechanisms and Procedures: United Nations - 5. The Mechanisms and Procedures: Regional - 6. Comparative Evaluation Tables of the International Procedures - Summary of Part IV

PART IV - RESPONDING TO THE INFORMATION COLLECTED

5. THE MECHANISMS AND PROCEDURES: REGIONAL

5.1. The European System

5.1.1. Complaint Procedure: The European Convention on Human Rights

TABLE 22: BASIC FACTS: EUROPEAN COURT OF HUMAN RIGHTS

5.1.1.1. What are the admissibility requirements?

A communication will be declared inadmissible if:

• the communication is anonymous
• the communication has not been submitted within six months of the date of the final decision in the case by the domestic authorities
• the communication is manifestly ill-founded or an abuse of the right of petition
• the communication is incompatible with the provisions of the Convention
• the application is substantially the same as one which has already been considered by the Court or another procedure of international investigation, and contains no new relevant information
• domestic remedies have not been exhausted, except where the remedies are ineffective or unreasonably prolonged

5.1.1.2. What should your application contain?

Your initial letter should contain:

• a brief summary of your complaints
• an indication of which Convention rights you think have been violated
• an indication of the remedies you have used
• a list of the official decisions in your case, including the date of each decision, who it was made by, and an indication of what it said - you should attach a copy of each of these decisions

If you are then sent an application form, you should follow the instructions on that form and in the accompanying letter.

TABLE 23: BASIC CHRONOLOGY OF INDIVIDUAL COMPLAINT PROCEDURE: ECHR

TABLE 24: PRACTICALITIES OF USING INDIVIDUAL COMPLAINT PROCEDURE: ECHR

5.1.1.3. Specific tips

• Under the original procedure, which was replaced in 1998, the initial stages of the case took place before the European Commission on Human Rights. If you are researching a particular topic under the Convention case law, remember to search for reports by the Commission as well as for Court judgments.
• If the six month period within which an application must be submitted is about to expire, and there is no time to prepare a full application, you can send a "stop-the-clock" application with a short summary of your complaint, which should then be followed up with the complete application as soon as possible.
• For the purpose of respect for deadlines given by the Court, it is the date of posting not the date of receipt which the Court considers determinative - however, it is advisable, at least, to notify the Court on the day of the deadline that the submission has been posted. This can be done by faxing a copy of the cover letter to the Court, or via email or telephone.
• The Court may, on its own initiative or at the request of one of the parties, obtain any evidence it considers useful to the case, including by holding fact-finding hearings. Where such measures are requested by one of the parties, that party will normally be expected to bear the resulting costs, although the Chamber may decide otherwise. If you do not wish to bear such costs, it is advisable to word your letter carefully - suggest to the Court that it might wish to exercise its discretion to take measures to obtain evidence.
• The Court carries out most of its regular work in Chambers of 7 judges. Where a case is considered to raise a serious issue or might involve a change in the views of the Court in relation to a particular subject, it can be referred to a Grand Chamber of 17 judges. Where a case has been considered by a Chamber and a judgment delivered, it is possible, in exceptional cases, to request within three months of the judgment for the case to be referred to the Grand Chamber for reconsideration. (Rule 73, Rules of the Court)
• It is possible to request the interpretation of a judgment within one year of its delivery. (Rule 79, Rules of the Court) It is also possible to request, within six months of the discovery, the revision of a judgment where important new facts are discovered which would have influenced the Court's findings. (Rule 80, Rules of the Court)

5.1.2. The European Committee for the Prevention of Torture

TABLE 25: BASIC FACTS: EUROPEAN COMMITTEE FOR THE PREVENTION OF TORTURE

If you aim to report a case of death, resulting from torture, to this Committee then we advise you to seek further detailed guidance from The Torture Reporting Handbook by Camille Giffard. For details of how to obtain a copy see Appendix II.

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5.2. The Inter-American System

The regional organisation in the Americas, by which is meant North, Central and South America, as well as the Caribbean region, is the Organisation of American States (OAS). A number of human rights instruments have been adopted within the OAS, including the American Declaration on the Rights and Duties of Man, the American Convention on Human Rights, the Inter-American Convention to Prevent and Punish Torture, the Inter-American Convention on the Forced Disappearance of Persons, and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women. There are two mechanisms which are responsible for the implementation of all of these instruments: the Inter-American Commission and Court of Human Rights.

Languages: The official languages of the Commission and Court are Spanish, French, English and Portuguese. The Court and Commission select their working language(s) in accordance with the languages spoken by their members. In the context of the individual complaint procedure, the Court may decide to work in the language of one of the parties to a particular case, as long as that language is also an official language.

TABLE 26: BASIC FACTS: INTER-AMERICAN COURT OF HUMAN RIGHTS

TABLE 27: BASIC FACTS: INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

5.2.1. Reporting Mechanism: The Inter-American Commission on Human Rights

5.2.1.1. How does the Inter-American Commission on Human Rights work?

The Inter-American Commission is responsible for supervising state respect for obligations under a number of OAS human rights instruments. It has reporting functions as well as receiving individual complaints (the latter will be considered below, Part IV, Chapter 5.2.2.).

In relation to all OAS Member States (whether or not party to the American Convention on Human Rights), the Inter-American Commission is empowered to develop awareness of human rights, make recommendations to governments, prepare studies and reports, urge governments to supply it with information regarding human rights, and serve as an advisory body regarding human rights. Most importantly, for the purposes of this handbook, it can:

• Prepare reports on the human rights situation in particular countries, based on a combination of fact-finding visits (where consent is given by the Member State in question), expert evidence, and information received in various forms including individual petitions
• Prepare an annual report, in which it has developed a practice of including entries on specific Member States

In relation to States Parties to the Inter-American Convention on Forced Disappearance of Persons petitions and communications can be processed by the the Commission in the usual way and in relation to the Inter-American Convention to Prevent and Punish Torture, it is also empowered to:

• Receive information from States Parties concerning any measures adopted in application of the Convention, and analyse in its annual report the situation in OAS Member States regarding the prevention and elimination of torture (Article 17)

5.2.1.2. What can you achieve by submitting information to the Inter-American Commission on Human Rights?

Although it is able to engage in its own fact-finding, it is the information it receives from a variety of sources, including NGOs, which helps the Inter-American Commission to identify those situations most in need of its attention. Submitting information gives you an opportunity to:

• Draw attention to a situation
• Seek positive changes in a general situation
• Combat impunity

In addition, supplying information in the context of preparations for on-site visits provides a further opportunity to draw the attention of the Inter-American Commission to the most pressing problems in a very specific way.

5.2.1.3. What should a communication to the Inter-American Commission on Human Rights contain?

See Part IV, Chapter 2, for suggestions on how to submit individual and general information to a reporting body.

5.2.2. Complaint Procedure: the Inter-American Commission and Court of Human Rights

See Part IV, Chapter 5.2. above for 'Basic Facts About: the Inter-American Commission on Human Rights' and 'Basic Facts About: the Inter-American Court of Human Rights'.

A complaint within the Inter-American system can be based either on the American Convention on Human Rights (where a state is a party to that convention) or on fundamental human rights standards under general international law, with particular reference to the American Declaration on the Rights and Duties of Man (where a state is a member of the OAS but not a party to the American Convention on Human Rights).

In practice, the application procedure works in the same way in both cases as long as the complaint remains before the Commission. However, complaints can only be referred to the Court if they concern:

• a State Party to the American Convention on Human Rights, AND
• who has accepted the jurisdiction of the Court

5.2.2.1. What can you achieve by using this procedure?

The Inter-American Commission on Human Rights can:

• Adopt conclusions in an individual case in the form of a report
• Make public its report where a state does not take adequate measures to comply with the conclusions
• Request that the government take precautionary measures in cases where irreparable harm to persons is likely
• Confidentially request the government to provide information as to the whereabouts of allegedly disappeared persons

The Inter-American Court of Human Rights can:

• Adopt a legally binding judgment, including a finding of violation
• Order the prosecution of a perpetrator
• Award reparation
• Order provisional measures of protection in urgent cases where irreparable harm to persons is likely

TABLE 28: BASIC CHRONOLOGY OF INDIVIDUAL COMPLAINT PROCEDURE: INTER-AMERICAN SYSTEM

5.2.2.2. What kind of complaints can be examined?

By the Inter-American Commission on Human Rights:

Where it concerns a State Party to the American Convention on Human Rights, a complaint can be examined if:

• it alleges a violation of the American Convention on Human Rights for which the state may be considered responsible (see Part II, Chapter 3.2.3. for a discussion of actions by non-governmental actors)

Where it concerns an OAS Member State not a party to the American Convention on Human Rights, a complaint can be examined if:

• it relates to an alleged violation of fundamental human rights standards, under general international law, with particular reference to the American Declaration on the Rights and Duties of Man

By the Inter-American Court of Human Rights:

A complaint can be examined if:

• it alleges a violation of the American Convention on Human Rights for which the state may be considered responsible (see Part II, Chapter 3.2.3. for a discussion of actions by non-governmental actors)
• it relates to a State Party to the American Convention on Human Rights which has accepted the jurisdiction of the Court
• it has first been examined by the Commission
• it has been referred to the Court by the Commission or a State Party

5.2.2.3. What are the admissibility requirements?

A communication will be inadmissible if:

• Adequate and effective domestic remedies have not been exhausted
• The case has not been submitted within 6 months of notification of the final decision in the case, or within a "reasonable time", in cases where domestic remedies cannot be exhausted
• A case addressing the same facts has already been, or is currently being, examined by the Commission or another international tribunal, except where that case was brought by a third party without the authorisation of the victim or the victim's family, and the present case is being brought by the victim, a family member or an authorised representative
• The communication is anonymous or lacks certain details about the petitioner
• The communication does not contain facts appearing to reveal a violation of rights
• The communication is manifestly groundless (ill-founded)
• The Commission receives supervening information indicating the matter is inadmissible or out of order

5.2.2.4 Specific tips

• Check to see if the state is a party to the ACHR, and if it has accepted the competence of the Court to examine individual complaints. If not, individual complaints concerning Member States of the OAS may still be submitted to the Commission on the basis of the American Declaration.
• Complaints should be based on the ACHR (or the American Declaration), but reference to the Inter-American Convention to Prevent and Punish Torture, the Inter-American Convention on the Forced Disappearance of Persons, and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, may be relevant to help clarify a point.
• Check that you supply all of the details and information needed to meet the "requirements for the Consideration of Petitions" (Article 28, Rules of Procedure of the Commission).
• At the stage when the Court considers the question of reparations, the representatives of the victim or the victim's family are entitled to submit their own arguments on the matter.

TABLE 29: PRACTICALITIES OF USING INDIVIDUAL COMPLAINT PROCEDURE: INTER-AMERICAN SYSTEM

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5.3. The African System

The African system for the protection of human rights is based on the African Charter on Human and Peoples' Rights, adopted under the auspices of the Organisation of African Unity (OAU). Supervision of respect for the Charter has, until now, been the exclusive domain of the African Commission on Human and Peoples' Rights. In the context of its work, the African Commission has appointed a number of Special Rapporteurs, namely the Special Rapporteur on Extra-Judicial Executions, the Special Rapporteur on Women and the Special Rapporteur on Prisons and Conditions of Detention in Africa. In 1998, a Protocol was adopted for the purpose of establishing an African Court to work alongside the Commission, but this Court will only become operational when 15 States have signed the Protocol. On the basis of current indications given by African States, this is likely to take between five and ten years.

In 1999 the African Charter on the Rights and Welfare of the Child was adopted, also under the auspices of the OAU. It establishes a Committee to oversee its implementation and to interpret its provisions.

Languages: The official languages of the Commission are Arabic, English, French and Portuguese, but in practice the Secretariat works in English and French. If a party wishes to make a presentation in another language, it should arrange for translation.

TABLE 30: BASIC FACTS: AFRICAN COMMISSION ON HUMAN AND PEOPLES' RIGHTS

TABLE 31: BASIC FACTS: AFRICAN COMMITTEE OF EXPERTS ON THE RIGHTS AND WELFARE OF THE CHILD

5.3.1. Reporting Mechanisms

5.3.1.1. African Commission on Human and Peoples' Rights

5.3.1.1.1. FUNCTIONS

The African Commission can:

• examine periodic state reports (Article 62, ACHPR)
• undertake research and studies, including through fact-finding visits (Article 45(1)(a), ACHPR)
• conduct an in-depth study, and engage in active investigation, where it receives communications indicating the existence of a series of serious and massive violations of human rights (Article 58, ACHPR)

See Part IV, Chapter 2.3. for an indication of how state reporting procedures work.

5.3.1.1.2. SPECIFIC TIPS

• Any serious NGO, whether African or non-African, can apply for observer status with the African Commission. It is not necessary to have observer status in order to send communications, but having the status gives the organisation certain entitlements: to be informed of, attend and participate in public meetings, to receive documents and publications of the African Commission and to request that an item be placed on the Commission's agenda. Any request for the introduction of an agenda item should be made at least 10 weeks before the opening of the session.

Any application for observer status should be submitted in writing and should include: the organisation's constitution, and information on its structure, leadership, membership and activities. It would be useful also to include copies of any publications or activity reports. A rapporteur is assigned to the application and makes a recommendation to the African Commission on whether or not to grant the status.

5.3.1.2. The African Committee of Experts on the Rights and Welfare of the Child

5.3.1.2.1. FUNCTIONS

The African Committee will be able to:

• examine periodic state reports (Article 43, ACRWC)
• undertake research and investigations, using any appropriate method of investigation including fact-finding visits into any matter falling within the ambit of the Charter (Article 45, ACRWC) and make recommendations into these

See Part IV, Chapter 2.3. for an indication of how state reporting procedures work.

5.3.1.2.2. SPECIFIC TIPS

• It is unclear exactly when the Committee will first meet but, no doubt, it will initially seek to establish rules of procedure governing the submission of information. Keep an eye on the relevant web-sites and publications for news of developments. (see Appendix II)
• The Committee has a mandate to work in any way that seems appropriate to ensure effective implementation of the Charter and can receive information from a broad spectrum of organisations. In its early stages it may be influenced by helpful and constructive suggestions as to how this work can best be done.

5.3.1.3. Special Rapporteur on Extra-Judicial Executions in Africa

TABLE 32: BASIC FACTS: SPECIAL RAPPORTEUR ON EXTRA-JUDICIAL EXECUTIONS IN AFRICA

The Special Rapporteur on Extra-Judicial Executions in Africa is able to exercise its functions in relation to all States Parties to the ACHPR.

The SR can:

• Engage in monitoring with a view to identifying problem areas and making recommendations
• Make recommendations in individual cases
• Recommend urgent action in individual cases
• Seek and receive information on cases and situations falling within the mandate
• Carry out fact-finding visits with the consent of States Parties. Reports of such visits are presented orally to the ACNHR in a public session, and although the Charter itself suggests that reports should only be made public by a decision of the OAU Assembly of Heads of State and Government, in practice the Commission makes it public without reference to the OAU.

Main areas of concern to the SR include:

• Gross and systematic violations amounting to crime against humanity or genocide
• Impunity for those responsible for unlawful killings
• Failure by states to perform any investigation into allegations of unlawful killings
• Failure to compensate victims and next of kin

5.3.1.4. Special Rapporteur on Prisons and Condition of Detention in Africa

TABLE 33: BASIC FACTS: SPECIAL RAPPORTEUR ON PRISONS AND CONDITIONS OF DETENTION IN AFRICA

You may also wish to address your complaint to this mandate if you are dealing with a case of someone who has died in custody. For further detailed guidance see The Torture Reporting Handbook by Camille Giffard. (For details of how to obtain a copy see Appendix II)

5.3.2. Complaint Procedures

5.3.2.1. The African Commission on Human and Peoples' Rights

TABLE 34: PRACTICALITIES OF USING INDIVIDUAL COMPLAINT PROCEDURE: ACHPR

TABLE 35: BASIC CHRONOLOGY OF INDIVIDUAL COMPLAINT PROCEDURE: ACHPR

5.3.2.2. What are the admissibility requirements?

A communication will be declared inadmissible if:

• it does not indicate the names of the authors (although they can request that their anonymity be protected by the Commission)
• domestic remedies have not been exhausted, except where the remedies are unreasonably prolonged (but see "Specific Tips" below)
• the communication has not been submitted within a reasonable time after the exhaustion of local remedies
• the communication is incompatible with the provisions of the Charter of the OAU or with the African Charter
• the communication is written in insulting language directed at the state concerned
• the allegations are based exclusively on mass media reports
• the application deals with matters already settled by the states involved in accordance with the principles of the UN and OAU Charters or the African Charter

5.3.2.3. Specific tips

• The Commission will proceed to an examination of a communication even if the State Party does not respond to the allegations.
• In addition to the basic details, you should indicate whether the communication refers to serious or massive violations of human and peoples' rights.
• The exhaustion of domestic remedies is required if a domestic remedy is capable of offering the prospect of success and is also capable of redressing the complaint.
• In cases of serious and massive violations, and where complaints involve large numbers of people or long-standing violations, the Commission has, in practice, not required the exhaustion of domestic remedies, on the ground that this would be impractical and/or undesirable.
• Alternatively, where allegations involve serious and massive violations, it is possible to base a communication on Article 58 in order to avoid the requirement to exhaust domestic remedies.
• The Commission requires the authors of the communication to provide their names and addresses, but where the circumstances make it impractical (e.g. where there is a large number of victims) it may not be necessary to name all the victims involved. The information should be sufficiently precise to make it possible to carry out an inquiry however.
• Much of the procedure for individual complaints has been developed through the Commission's rules of procedure and practice - do not be surprised if you do not find much information about the procedure in the Charter itself.

5.3.2.4. African Committee on the Rights and Welfare of the Child

At the current time the procedures for taking complaints have not been established by this body. It is clear that communications can be received from any person, group or non-governmental, by the OAU, by a Member State, or the UN, on ANY matter covered by the Charter. (Article 44)

The Charter states that every communication should contain the name and address of the author "which will be treated in confidence". (Article 44 (1))

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5.4. Other Regions

There are currently no other regions that have established formal procedures to consider allegations of human rights violations, although many are beginning to devote increasing interest to human rights in general. The years to come may well see a growth in the number of international bodies able to consider allegations, and it is probable that any new regional bodies will be based on the well-established, tried and tested procedures described in connection with Europe, the Americas and Africa.

In the meantime, it is important not to be discouraged by the absence of international remedies close to home - the UN bodies are subject to no geographical limitations and can examine situations all over the world. Check which treaties your state is a party to, and remember that the non-treaty procedures can examine the human rights situation in any state which is a member of the UN.

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Handbook links:	website home page
Table of Contents - Search - Part I: Essential Reading - Part II: Identifying a Potential Violation - Part III: How to Document Allegations of Unlawful Killings - Part IV: Responding to the Information Collected - Part V: Where can you Seek Further Help? - Appendices