Archive | 2019
The Content of the Obligations to Investigate and Prosecute International Human Rights Law Violations
Abstract
This chapter examines the content and scope of the obligations to investigate and prosecute or extradite enshrined in the most important international conventions that explicitly require investigation and prosecution of the crimes defined therein, namely the Genocide, Torture, and Enforced Disappearance Conventions. It then focuses on the three most advanced and comprehensive human rights treaties, i.e., the ICCPR, the ECHR, and the ACHR. Given that these instruments do not expressly mandate states parties to investigate, prosecute, and punish those responsible for violations of the rights and freedoms enumerated therein, the chapter dissects how their treaty bodies have inferred such procedural obligations mainly from the duty to “respect” and “ensure the free and full exercise” of substantive rights, from the right to a remedy, or in other instances from substantive provisions. The chapter examines the rationales behind criminalization, investigation, prosecution, and punishment, namely whether these obligations should be interpreted as general measures of protection or are instruments to ensure the individual victim enjoys free and full exercise of the relevant right. Emphasis is placed on the developments, similarities, and differences that have emerged over time in the jurisprudence of the HRC, ECtHR, IACtHR, and IACHR, and especially on whether an individual right to criminal justice may be warranted. In light of this, the feasibility of amnesty is also discussed. Finally, the chapter analyzes these obligations in the context of customary international law, and in relation to crimes against humanity and jus cogens crimes, pointing out the important distinction between primary and secondary obligations.