The Validity and Critiques of the Current Approach of Human Rights Bodies Regarding the Positive Procedural Obligations of States

Résumé fourni par la source

This paper questions whether the current approach of human rights bodies with regard to positive procedural obligations is valid according to both, the domestic legal standards of states, and the mandate given to them in the conventions. It raises important critiques about the capability of human rights bodies to effectively fulfill their newly assumed task of ordering and supervising prosecutions and punishments in criminal matters. It seems clear that the domestic justice systems of states bear the primary responsibility to bring violators of the right to life and other human rights to justice and action by human rights bodies should only take place, as subsidiary measure, when such systems prove to be inadequate. Nevertheless, human rights bodies should use their influence as widely as possible in order to encourage the improvement of domestic justice systems in securing justice for victims. In measuring and monitoring the degree of compliance of domestic justice systems with their orders of investigation, prosecution and punishment, human rights bodies have, to some extent, established an important quasi-criminal jurisdiction. In doing so, they may be said to have contributed to the improvement of the prosecutorial practices of states in dealing with criminal violations of the right to life. Therefore, it can be argued that the difficulties in applying the remedial decisions of the human rights bodies on non-compliant states have not entirely negated these decisions. These decisions may be said to have strengthened the resolve of citizens, particularly victims, to increasingly compel states to bring their criminal justice systems into full compliance with the requirements of human rights bodies. Only if the state does this, can it claim to have legitimate authority over its citizens in the sphere of human rights. This legitimacy is most likely to be found in states which possess an executive of high integrity, an independent legislature and judicial system and other robust and vigilant civil institutions. As noted above, the European system and UN Human Rights Committee practice are a weaker form of quasi-criminal review than that of the Inter-American Court. Nevertheless, they do issue orders to investigate and punish in particular cases and exercise some supervision of their implementation. This weaker form of quasi-criminal review will very likely increase as human rights bodies move towards greater dialogue with states, more specific reparatory rulings, and closer supervision of state compliance. However, in parallel with this increase, there is an essential need to find more effective mechanisms to compel states to comply with the orders of human rights bodies to achieve justice for victims of crime if the policy of these bodies is to be successful. It has been suggested by some commentators that the application of coercive measures may improve the compliance of offending states. For example, more diplomatic, economic and political pressures by neighboring states against a non-complying state may make a difference in this regard. Such external pressure, however, is not liable to be effective because it depends on the willingness of these states to play this role. Therefore, the media and other internal institutions of civil society must be active in pressing state authorities to acknowledge the orders of human rights bodies, not merely notionally, but to take serious practical steps to implement them.

Ce résumé expose les affirmations des auteurs. BNTIC ne l’interprète pas comme une validation indépendante des résultats.