|Volume 6 Issue 01| January 2012|
DINODIA PHOTOS-BRAND X PICTURES/GETTY IMAGES
Duty of the State
ARAFAT HOSEN KHAN notes the obligations of the State in addressing extrajudicial killings and the recent spate of disappearances.
Right to life and personal liberty are the most cherished and pivotal fundamental human rights around which other rights of the individual revolve. Article 31 is the celebrated provision of the Constitution of Bangladesh and occupies a unique place as a fundamental right. It guarantees right to life and personal liberty to citizens and aliens and is enforceable against the State.
'Right to life' and 'personal liberty' is the modern name for what have been traditionally known as 'natural right'. It is the primordial right necessary for the development of human personality. It is the moral right which every human being everywhere at all times ought to have simply because of the fact that in contrast with other beings, he/she is rational and moral. It is the fundamental right which enables a man or woman to chalk out his/her own life in the manner he/she likes best. Right to life and personal liberty is one of the rights of the people of Bangladesh preserved by its Constitution.
Despite having the most cherished and pivotal fundamental human rights guaranteed in our Constitution, it has been widely reported in Bangladesh that in the last few years there has been a pattern of extrajudicial killings going on in the name of “crossfire”, “gunfights” or “encounters”, even though we live in a democracy and our Constitution protects and ensures fundamental rights for every individual in our country. Until recently a new term has been improvised, a new culture of enforced disappearances has developed, which is alarming and this adds to the disrespect for human rights and thus the long practice of impunity and a weak criminal justice system prevalent in Bangladesh. Between January 2010 and November 2011 at least 40 people have disappeared.
Since 2004, extrajudicial killings by law enforcing agencies, custodial deaths and torture, and lack of any public reports of investigation and prosecution of those responsible demonstrate the vulnerability of the right to life of Bangladeshi citizens. In the vast majority of instances, the state failed to publish any information regarding actions taken to investigate, prosecute or punish those responsible for such incidents.
We are deeply concerned that the present government has not done enough to effectively address the extrajudicial killings and the recent spate of killings and disappearances, and that this inaction has led to a culture of impunity in which even more killings and human rights violations can take place. Although the authorities in Bangladesh have announced an inquiry into a recent spate of killings and disappearances, no positive steps have been taken yet by the authorities to investigate the spate of recent disappearances.
In the above circumstances, who can be held responsible and who has the obligation to take effective measures to prevent such ongoing incidents of extrajudicial killings and the recent spate of killings and disappearances? Does our government have any positive obligation to investigate the alleged incidents of extrajudicial killings and disappearances? Although the Constitution of Bangladesh does not directly define what is exactly meant by the positive obligation for the State to protect a human right, for example the right to life, the positive obligation for the State is commonly recognised that human rights can be divided into classical and social rights.
When one speaks on the classical rights, this will mean the government will have an obligation to withdraw itself from any action that might constitute an infringement of this specific right: this is also called negative obligation. In the case of social rights, the government will have an obligation to perform certain actions with the goal that the specific right can be enjoyed by the people. This positive obligation will ask some help, or intervention from the State. In the case of social human rights, the individual can try to force the government to exert, but the individual cannot demand, concrete actions.
If we look into the international state of affairs on the positive obligations of the State, we will observe that the most developed body of jurisprudence dealing with the duty to investigate has been produced by the European Court of Human Rights (ECtHR), which hears complaints of violations of the European Convention on Human Rights (ECHR). The ECtHR has held that States are compelled to carry out an effective investigation by Article 2(1) in combination with Article 1 of the ECHR1. The failure to properly investigate an extrajudicial killing constitutes a violation of these articles.
The ECtHR found that the proceedings following the death of Finucane failed to provide a prompt and effective investigation into the allegations of collusion by security personnel, and, as a result, the ECtHR found that the UK violated Article 2 of ECHR.
The ECtHR has found that the duty to investigate exists even in cases where the State was not directly implicated in the extrajudicial killing. In Kaya v. Turkey2, the ECtHR held that although it had not been established that the applicant's brother was unlawfully killed, Article 2 was breached nonetheless “on account of the failure of the authorities of the respondent State to conduct an effective investigation into the circumstances surrounding the death of the applicant's brother”. Similarly, in Ergi v. Turkey3, the ECtHR stated that the duty to investigate “is not confined to cases where it has been established that the killing was caused by an agent of the State”.4
The ECtHR have interpreted that a positive duty falls on ratifying states to conduct an effective investigation when individuals have been killed within State jurisdiction. This is a duty that arises from a person's “right to life”5 in combination with the State's obligation to recognise and guarantee the rights of the respective Conventions.6 A proper investigation is necessary to secure the effective implementation of the domestic laws, which protect the right to life. Further, the failure to investigate, especially where there is a pattern of extrajudicial killings, creates a culture of impunity that is incompatible with this right.
Even in Indian judiciary it is well established that the State/Government has a positive obligation to investigate any matter regarding extrajudicial killing by law enforcing agencies of the State. Very recently the Andra Prodesh High Court in India in the police encounter case7 have held that, every time a person is killed by a police officer or any member of law enforcing agencies, if a complaint is made, an FIR must be registered and once an FIR is registered, an investigation must be launched.
As the International Convention on Civil and Political Rights (ICCPR)8 have the “right to life” and “State guarantee” provisions9 comparable to those in the ECHR, the States that have ratified these instruments are similarly bound by a duty to investigate. Article 6.1 of the ICCPR guarantees the right to life.
Articles 1-3 of the ICCPR imposes on ratifying states a duty to take effective measures to protect the right to life and provide remedies for rights violations. Article 3 extends this duty to cases in which the rights violations have been committed by State agents.
Even apart from the obligations created by human rights treaties, there is a strong argument that States have a duty to investigate extrajudicial killings under customary international law. The right to life is among the most strongly protected of all fundamental human rights and is widely recognised as having reached the status of customary international law.10 It follows that the duties and obligations flowing from this right must be undertaken under customary international law.
As concluded above, the duty to effectively investigate extrajudicial killings arises from the obligations imposed by the human rights instruments that guarantee the right to life. Also, there is a strong argument that customary international law compels a State to investigate an extrajudicial killing as part of recognising and ensuring the right to life.
Bangladesh has ratified all the core human rights treaties (ICCPR, ICESCR, CERD, CEDAW, CAT, CRC). However, it has entered reservations to several treaties, notably, trial in absentia (ICCPR) and compensation for torture (CAT). It has accepted the individual communications procedure under only one treaty (CEDAW) and does not accept any inquiry procedure by any treaty body. (See below the List of Bangladesh's Ratification of International Human Rights Treaties).
The right to life is the fundamental human right because it is a prior condition for realisation of all other human rights. The failure to effectively investigate an extrajudicial killing and the recent spate of killings and disappearances violates the right to life because an effective investigation is paramount to the implementation of laws, which protect the right to life. Further, where there is a pattern of extrajudicial killings and disappearances, the failure to conduct an effective investigation creates an environment of impunity, within which further killings could occur. The initial remedy for the loss of life by violence is an investigation that can effectively determine if the death occurred by an illegal use of force. If the loss of life was the result of illegal violence, then the State has a duty to prosecute the perpetrator and, if the State was complicit in the killing, to compensate the family of the victim.
Bangladesh is obliged to respect and ensure the inherent right to life of every person within its jurisdiction by virtue of its ratification of the ICCPR, in accordance with customary international law, and under its Constitution. Under international law, the duty to conduct an effective investigation into extrajudicial killings and the recent spate of killings and disappearances is implicit in the obligation to protect the right to life. Accordingly, the Government of Bangladesh has a duty to conduct effective investigations into the extrajudicial killings and disappearances that have occurred in recent years.
We have just celebrated our 40 years of independence and almost 21 years of democracy, still the State has not yet fulfilled its legal duty to take reasonable steps to prevent extrajudicial killings and disappearances and use all means to carry out serious investigation of alleged cases. It is now time for the government's concerned authorities to do something, to conduct independent investigations and to impose appropriate punishment and to ensure victims adequate compensation. In order to bring an end to extrajudicial killings and disappearances, the respect for the rule of law and effective and independent judiciary is necessary.
1) Hugh Jordan v. the United Kingdom (Application no. 24746/94) Judgment, Strasbourg, 4 May 2001, para. 105; Çiçek v. Turkey (Application no. 25704/94) Judgment, Strasbourg 27 February 2001, para. 148; Kaya v. Turkey (158/1996/777/978) Judgment, Strasbourg, 19 February 1998,. 105; McKerr v. the United Kingdom, (Application no. 28883/95), Judgment, Strasbourg, 4 May 2001, para. 111-115; Kelly and Others v. the United Kingdom, (Application no. 30054/96), Judgment, Strasbourg, 4 May 2001, Shanaghan v. the United Kingdom, (Application no. 37715/97) Judgment, Strasbourg, 4 May 2001; Makaratzis v. Greece [GC], (Application no. 50385/99), Judgment, Strasbourg, 20 December 2004, para. 73-79.
Arafat Hosen Khan is Barrister-at-Law, The Honorable Society of Lincoln's Inn and with Dr. Kamal Hossain and Associates. He can be reached at email@example.com.
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